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Landlords file lawsuit over eviction moratorium they say causes 'tremendous harm'

Landlords file lawsuit over eviction moratorium they say causes 'tremendous harm'

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Some three dozen landlords from across Erie County have filed a lawsuit calling the state's ongoing eviction moratorium unconstitutional.

Their inability to evict tenants who assert a Covid-19 financial hardship has caused them to suffer "tremendous harm," with some at risk of losing not only their rental properties, but their own homes, according to their State Supreme Court filing.

The landlords – based in Buffalo, Kenmore and the towns of Amherst, Hamburg, Grand Island and Tonawanda – range from mom-and-pop operations with one or two rental units to companies with hundreds of units.

The lawsuit targets the Covid-19 Emergency Eviction and Foreclosure Prevention Act of 2020, which the State Legislature modified in September to extend the moratorium through at least Jan. 15. The suit names as the defendant Lawrence K. Marks, the chief administrative judge of the state court system, who is responsible for implementing and administering the act.

In any other industry, customers are still required to pay for the goods and services they receive, said Anthony F. Trusso, one of the landlords in the suit. But under the state's current rules, tenants need only file a hardship declaration that says they are unable to pay their rent. Tenants are not required to provide any proof they have lost a job or suffered some other form of financial hardship.

Furthermore, tenants who aren't paying are also not required to apply for the federal Emergency Rental Assistance Program, which enables their landlord to receive money from the government in lieu of their tenants' rent payments.

Trusso said area landlords will work with tenants who make a good-faith effort to pay what they can and apply for federal rental aid. But some of those tenants have refused to speak with the landlords, and even avoid them, leading the landlords to believe some of their nonpaying tenants are falsely claiming a hardship just to take advantage of the eviction moratorium.

According to court documents, Trusso's company, Tru Commercial Development LLC, owns 400 units in 12 properties of various sizes throughout Western New York, charging on average $900 to $1,000 a month for larger apartments and $750 for studios. Tru has about 40 tenants owing rent or otherwise applying for rental assistance. As of Oct. 25, the total amount of rental arrears owed by the 40 tenants was approximately $73,825, Trusso said in an affidavit. 

"For the month of October 2021, my business has experienced a shortfall of $22,017," Trusso said in his affidavit. "I have had to use personal funds and funds from my other businesses to cover the losses experienced to cover Tru's mortgages, taxes, and other expenses."

While the landlords suspect bad faith in some cases, they say their ability to challenge a tenant's claimed hardships under the eviction moratorium legislation is too difficult.

"The act claims to provide landlords with the opportunity to challenge hardship claims, but that process is illusory," according to court papers filed by attorneys Jeffrey Reina, Paul Cambria and Erin McCampbell Paris, who represent the landlords. 

"Landlords cannot challenge hardship claims unless they are able to swear, under penalty of perjury, that they have a good faith belief that the hardship claims are false," they said.

But landlords almost never have access to the information necessary to do so, such as tenant paychecks and savings account information, according to the attorneys.

What's more, circumstances are different now than in March 2020, when then-Gov. Andrew Cuomo issued an executive order prohibiting evictions, and also than in December 2020, when the Legislature passed the law putting in place the moratorium.

In March 2020, the economy was closed, with unemployment spiking to more than 16%, and the health concerns in the early days of the pandemic had unnerved the public.

Now, the economy is fully reopened, the attorneys said. Schools are open for in-person learning five days a week. Offices have begun to return to in-person operations. And there are severe hiring shortages in many industries.

Plus, now there are three highly effective vaccines, the attorneys said.

"The act did not take into account any of these material changes of circumstances," according the court papers. "The act did not include any measures to allow courts, rather than tenants, to make an objective determination whether any of the individuals who claimed a hardship actually, in fact, had one. It was enacted as if the Legislature buried its head in the sand to the substantial progress that has been made since March 2020."

The Buffalo News: Good Morning, Buffalo

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