Ask Sam: My wife and I have been laid off. What happens if we can’t pay our rent?

There’s currently a 90-day moratorium on evictions, so you can’t be kicked out of your apartment any time soon, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

Furthermore, courts are now closed except for emergency cases, like illegal lockouts or unlivable conditions in your apartment, so currently your landlord cannot file a case against you for nonpayment of rent.

“The question then is, what happens when this ends if you’re still unemployed and haven’t paid rent for several months,” Himmelstein says. “The landlord could at that point sue you for the rent in housing court in an eviction case, and you probably would be liable unless you had some defense like the landlord not doing necessary repairs.”

What could happen if you don’t pay your rent

However, the situation is changing rapidly, and some elected officials are attempting to pass legislation that would freeze rent, mortgage, and utility payments for New Yorkers facing economic hardship as a result of the coronavirus pandemic. 

If the rent freeze bill passes in its current form, you would need to demonstrate that you lost your job or your income dropped dramatically in order to be granted forgiveness on rent payments.

If it doesn’t pass, you won’t necessarily face eviction as soon as life returns to normal.

“Even now in typical housing court cases, when a person hasn’t paid rent because they’re out of money, the issues gets worked out with some kind of payment plan,” Himmelstein says.  

Moreover, he adds, in this unprecedented situation, lawyers may try to interpose new defenses for tenants like yourself based on the "force majeure" doctrine, which protects people in the event of disasters that render them unable to perform contractual obligations. They might also rely on other defenses, such as "impossibility of performance" and "frustration of purpose." 

Another factor in your favor is that the rent reform legislation passed by the state legislature last June includes new language that allows housing court judges to give people more time to pay back rent they owe, if their landlords bring a nonpayment case against them.

“It used to be that a judge could only give you five days to pay if you lost a non-payment case, or up to six months to move if the landlord prevailed in a holdover proceeding,” Himmelstein says. “The new law extends the holdover period to move to up to a year, and seems to allow judges to give tenants more time to pay if they lose a nonpayment case.”

What to do if you want to break your lease

If you can’t pay rent and have another place to go, you might be considering breaking your lease.

“However, if you have a rent-stabilized apartment, think twice about giving it up,” advises Himmelstein.

If you do decide it’s better that you leave, before you do so, try to come to an agreement with your landlord so that you don’t end up in housing court when this crisis comes to an end.

“Try to negotiate. If the landlord offers you a reasonable deal like forfeiting your security deposit in exchange for breaking the lease, that’s preferable to being brought into court,” Himmelstein says.

However, it may not be so easy. Landlords will have a very difficult time re-renting apartments now: open houses and showings have been put on pause under an executive order from Governor Andrew Cuomo, and moves are discouraged by buildings, although some moving companies are still operating—they are considered an essential business.

If your landlord is unwilling to negotiate and you decide to break your lease anyway, you may still be able to avoid being sued.

“You can hope for the best that the landlord doesn’t bring a case against you,” Himmelstein says. “There may be reasons why they wouldn’t. The optics wouldn’t be great, and courts are closed and you can’t file at the moment.”

Initially, courts were still allowing people to file so that cases wouldn’t expire under the statute of limitations while courts are closed. However, Governor Cuomo recently issued an executive order suspending the statute of limitations for all filing deadlines, which means your landlord can’t sue you for a breach of lease now.

However, when courts reopen your landlord could move to sue, arguing that they weren’t able to mitigate the damages of losing your rent because they couldn’t re-rent the apartment to a new tenant during the coronavirus crisis.

“You could be liable and end up having a money judgment against you for that rent, in which case if you don’t pay, the landlord has the means of garnishing your salary, going after your bank account, and putting a lien on real estate you own. It will also have a negative effect on your credit,” Himmelstein says.

This is a worst-case scenario, though, and with the situation changing every day, Himmelstein says he thinks you may have other options.

“The longer this lasts, the more protections the government is putting in place,” he says. “I anticipate that’s going to continue.”

Related: 

Ask Sam: What happens if you have a case pending in NYC housing court during the coronavirus crisis? (sponsored) 

Ask Sam: Can my landlord evict me from my rent-stabilized apartment so that his relative can move in? (sponsored) 

Ask Sam: What are the rules for evicting rent-stabilized tenants in NYC? (sponsored)

Read all our Ask a Renters Rights Lawyer columns here.

Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. For a free 10-minute legal consultation, email Sam or call (212) 349-3000.