5 months without rent pay
Real Estate Broker · New York, NY · Member since 2020 · 30 posts · 30 votes
5 months without rent pay
Most Popular Reply
Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
6y@Tony Merchan NY landlords have a constitutional problem on their hands. The executive order barring evictions is a violation of the 5th amendment and 14th amendment. No person shall be denied their property rights without due process. An eviction ban is taking property, by denying rights to recover property that is not being paid for. They try to get around this by stating a tenant must still pay rent, but the courts block any legal recourse to recover rent or recover the property (eviction), so the landlord is denied due process. So it is one or the other, either they are taking without compensation or they are denying due process. The 14th amendment bars the states from denying due process. The courts arbitrarily determined what are essential court cases. For example a tenant can sue a landlord for shutting off utilities, even though the landlord can't sue a tenant to get rent to pay for those utilities. The courts have chosen one persons rights over another.
You could even argue that since the 14th amendment requires equal protection, a landlord and tenant should have equal rights. By choosing what laws to enforce and who to favor, they are violating these constitutional rights.
These executive orders are a massive overreach of power by the Governor Cuomo and the courts. They could extend these orders for months or years and by shutting the courts, they remove the opportunity to even be questioned on their actions. This needs to be challenged in court and probably even at a federal level if the state refuses to hear the case.
86 Replies
- 6yJohn UnderwoodPro MemberInvestor · Greer, SC · Member since 2014 · 13k+ posts · 17k+ votes
See if you can find some rent assistance places he can apply to.
- Real Estate Agent · Washington, D.C. · Member since 2012 · 17k+ posts · 30k+ votes6y
Report him to a collection agency if you are allowed to under your state law.
District Invest Group546 Reviews - Real Estate Agent · Syracuse · Member since 2016 · 32 posts · 15 votes6y
Being in NY is difficult to say the least. Many of the people I know who own rentals are having mixed luck at best. Many are in the same boat. I would remind him that he is still responsible for back rent even though he doesn't have to bay during forbearance. And then I wouldn't renew his lease. The new laws in NY put you at a disadvantage. If states that he isn't going to pay back rent owes then I would give him early notice to comply with the new NYS laws. Sad.
- Investor · San Diego, CA · Member since 2015 · 435 posts · 421 votes6y
I'm sorry to say, but if I were you I'd sell the building. Property values are still high. There is absolutely NO future for owning rental properties in NY, and especially in NYC. It was bad before the latest law was passed, worse afterwards, and now with the pandemic, you might not even be able to BEGIN the YEAR LONG PROCESS for evicting someone for nonpayment of rent in NYC until the fall, and maybe not for another year or more. Can you afford to carry the building for two years on only one unit's rent? I'd sell it now.
Your other option is paying him to leave, but with him knowing that he could get a year or more of free rent, it would have to be a very big payment to entice him, probably.
- Rental Property Investor · The Vampire State · Member since 2013 · 2k+ posts · 2k+ votes6y
Originally posted by @Russell Brazil:
Report him to a collection agency if you are allowed to under your state law.
This is unfortunately against NY State law due to one of many executive orders by our completely unilateral governor.
- Rental Property Investor · The Vampire State · Member since 2013 · 2k+ posts · 2k+ votes6y
Originally posted by @Tony Merchan:
I have a two family house in Queens NY
1st floor tenant has been paying up to date
2nd floor tenant has stop paying since March , spoke to him today said he won’t pay until July because of covid . Now I spoke to my attorney there isn’t much to do since New York is tenant friendly, courts are backed up , evection are on hold . On Wednesday NY passed a bill that would temporarily stop landlords from evicting tenants for no payment issue related to the pandemic ? What about landlords ? I still have to pay mortgage and taxes . I tried to speak to tenant he’s just very aggressive there’s no form of communication with him . FYI he’s lease doesn’t end until November 2020 .
Unfortunately, the elected officials NY have gone on a all-out attack on landlords in a perceived class warfare strategy to garner votes. They continue to stack to deck against our small-business industry. The laws/executive orders are literally making it harder for us by the day.
At the time of this writing, you may not SERVE an eviction notice for non-payment before August 20th, and there are whispers the governor is going to move the goal post back even farther as we get closer. With the lengthy process now in place in our state since HSTPA 2019, and the anticipated gargantuan backlog of cases, you are looking at sometime in the fall before your case will even be heard. It's okay, though - you're a "greedy landlord", so you'll just have to be content with rolling around on a smaller mound of gold until then.
My recommendation to you (besides selling your portfolio and buying elsewhere, which is what I am doing), is to organize with other landlords. There are several groups that are getting some traction with numbers these days. "Under One Roof NY" is one such group, and they can connect you with other groups in your area.
For too long landlords in NY have just kept their heads down and took it on the chin, while the PAID tenant advocates got sound bite after sound bite. Start fighting back!
- Real Estate Agent · Southington, CT · Member since 2008 · 5k+ posts · 3k+ votes6y
As @Russell Brazil mentioned you want to put him in a situation where he has something to lose. Right now he knows there will be no lasting consequences to his actions because of local laws. If he still doesn't care after you send him to collections then you placed someone who has nothing to lose, never a good idea.
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes6y
@Tony Merchan NY landlords have a constitutional problem on their hands. The executive order barring evictions is a violation of the 5th amendment and 14th amendment. No person shall be denied their property rights without due process. An eviction ban is taking property, by denying rights to recover property that is not being paid for. They try to get around this by stating a tenant must still pay rent, but the courts block any legal recourse to recover rent or recover the property (eviction), so the landlord is denied due process. So it is one or the other, either they are taking without compensation or they are denying due process. The 14th amendment bars the states from denying due process. The courts arbitrarily determined what are essential court cases. For example a tenant can sue a landlord for shutting off utilities, even though the landlord can't sue a tenant to get rent to pay for those utilities. The courts have chosen one persons rights over another.
You could even argue that since the 14th amendment requires equal protection, a landlord and tenant should have equal rights. By choosing what laws to enforce and who to favor, they are violating these constitutional rights.
These executive orders are a massive overreach of power by the Governor Cuomo and the courts. They could extend these orders for months or years and by shutting the courts, they remove the opportunity to even be questioned on their actions. This needs to be challenged in court and probably even at a federal level if the state refuses to hear the case.
- Member since 2020 · 14 posts · 1 vote6y
@Tony Merchan I know you cannot evict someone during this pandemic in NY and other states. But I know you can still evict someone if they have broken part of the lease that is not due to the pandemic. (animals not specified on lease, excessive noice complaints, etc.) Like mentioned before you can try to pay them to get out. Talk to a property management company, as they have the most experience with state laws. Good luck and try not to give up.
- Real Estate Broker · New York, NY · Member since 2020 · 30 posts · 30 votes6y
@Lynn Belnap looking for something that breach of contact ? Not paying rent on time is breaching of contract that’s what I’m so confused about ? I have neighbors who lived in area for more then 15 years , come up to me asking if I was the landlord, ever since this tenant came to live in the house he’s not only been giving me hell but also the neighborhood. It’s insane ! I was think maybe having neighbors file a complaint, the more evidence the better ?
- Property Manager · Cleveland, OH · Member since 2019 · 446 posts · 566 votes6y
@Joe Splitrock I agree that this puts landlords in a very difficult position, but I disagree with your interpretation of due process and equal protection. I'm not a practicing attorney, and I'm not here to give legal advice, but I also don't think it's constructive to read a few words from the 14th Amendment and declare a faulty interpretation.
All of these measures, even if they do get extended for another term, are temporary in nature. The government certainly doesn't want an uptick in foreclosures again, barely a decade after the last housing market crash. This is why it's more constructive for owners to look at their mortgage forbearance options and remind tenants that there will be legal recourse for back rent in the coming months. And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
- Residential Real Estate Broker · College Station, TX · Member since 2013 · 1k+ posts · 969 votes6y
@Tony Merchan. Time to VOTE with your feet!
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes6y
Originally posted by @Anna Sagatelova:
@Joe Splitrock I agree that this puts landlords in a very difficult position, but I disagree with your interpretation of due process and equal protection. I'm not a practicing attorney, and I'm not here to give legal advice, but I also don't think it's constructive to read a few words from the 14th Amendment and declare a faulty interpretation.
All of these measures, even if they do get extended for another term, are temporary in nature. The government certainly doesn't want an uptick in foreclosures again, barely a decade after the last housing market crash. This is why it's more constructive for owners to look at their mortgage forbearance options and remind tenants that there will be legal recourse for back rent in the coming months. And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
It is my interpretation, but there are many legal experts who believe the eviction ban is a constitutional violation. My state refused to enact an eviction ban, specifically citing their legal interpretation of our state and federal constitution. As with any legal debate, only the courts decide what argument holds up.
As a property manager, you know the reality of collecting back rent. Once a tenant is a month late, the odds of them catching up are near nothing. A tenant who couldn't pay rent March 1st was in trouble before COVID even hit and was living paycheck to paycheck. The idea that someone in this situation would pay back 5 months or more back rent is illogical. I don't think you believe these landlords have any chance of getting their money, do you?
I agree in general that screening can catch most of the bad tenants, but in some markets and some property classes, higher risk tenants are the norm. I don't rent to these type of people, but if NO landlord rented to them, it would cause a massive increase in homelessness. The government wants to force landlords to accept tenants with troubled credit histories, but at the same time they want to take away recourse when that tenant doesn't pay. It is illogical. Again, I am with you on not renting to these people, but if nobody did, that would be a bigger problem. People who take the risk, should have the recourse to get people out quickly.
As far as reference checks, I have very little trouble getting responses. The more shocking thing I see is nobody is contacting me. I have had numerous cases where tenants tell me I was given as a reference and nobody calls.
You are right it comes down to screening and states with 2-3 month eviction bans were very moderate. The states pushing this out to 6 months or more are out of control.
- York, PA · Member since 2019 · 51 posts · 21 votes6y
@Tony Merchan It does not help you in the short term but I would consider giving him written notice immediately that you will not be renewing your agreement with him in Nov (I assume you can provide that sort of notice at anytime regardless of COVID?)
Can you also put it in writing that you will also pursue the total amount due to the full extent available to you?
I do not know the laws and do not have a solution short term but I am thinking, if you can set clear expectations with him how it will play out, he may realize that he is gambling with the idea of free rent verse forbearance. Maybe he does not understand that just because he does not have to pay now does not mean he will not have to later. At the minimum, let him know he won't have an a rental with you after November.
- Investor · Greenville, SC · Member since 2016 · 5k+ posts · 13k+ votes6y
I would be honest with him. Let him know that you still have to pay the mortgage, taxes, insurance, and maintenance. If he does not care, let him know that rent is still due and that you will enforce the lease agreement to include eviction and collections (whenever available). Let him know that landlords are aggressively screening new residents and having a poor rental and credit history will be problematic for finding a new place.
IMO, having someone live in your home for extended periods without paying rent is as bad as it gets in real estate (financially and emotionally). No rate of return is worth that type of problem...real estate is supposed to make life better.
- Developer · Chicago, IL · Member since 2015 · 36 posts · 20 votes6y
Originally posted by @Joe Splitrock:
@Tony Merchan NY landlords have a constitutional problem on their hands. The executive order barring evictions is a violation of the 5th amendment and 14th amendment. No person shall be denied their property rights without due process. An eviction ban is taking property, by denying rights to recover property that is not being paid for. They try to get around this by stating a tenant must still pay rent, but the courts block any legal recourse to recover rent or recover the property (eviction), so the landlord is denied due process. So it is one or the other, either they are taking without compensation or they are denying due process. The 14th amendment bars the states from denying due process. The courts arbitrarily determined what are essential court cases. For example a tenant can sue a landlord for shutting off utilities, even though the landlord can't sue a tenant to get rent to pay for those utilities. The courts have chosen one persons rights over another.
You could even argue that since the 14th amendment requires equal protection, a landlord and tenant should have equal rights. By choosing what laws to enforce and who to favor, they are violating these constitutional rights.
These executive orders are a massive overreach of power by the Governor Cuomo and the courts. They could extend these orders for months or years and by shutting the courts, they remove the opportunity to even be questioned on their actions. This needs to be challenged in court and probably even at a federal level if the state refuses to hear the case.
Any organizations we can support to start a case?
IL has the same problem (or worse since our governor keeps indefinitely extending the moratorium) - Real Estate Broker · New York, NY · Member since 2020 · 30 posts · 30 votes6y
@Salman V. A group of landlord in Westchester county filed a lawsuit claiming cuomo evection moratorium is unconstitutional...
with my case Attorney are going to serve him with notice of unpaid month hopefully they get intimidated.
- Developer · Chicago, IL · Member since 2015 · 36 posts · 20 votes6y
Originally posted by @Tony Merchan:
@Salman V. A group of landlord in Westchester county filed a lawsuit claiming cuomo evection moratorium is unconstitutional...
with my case Attorney are going to serve him with notice of unpaid month hopefully they get intimidated.
Awesome - We need someone to do this in Illinois. Anyone want to step up? I can chip in.
- Rental Property Investor · The Vampire State · Member since 2013 · 2k+ posts · 2k+ votes6y
Originally posted by @Anna Sagatelova:
And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
Well, NY was way ahead of you on this one. They are removing, piece by piece, any discretion landlords have to properly screen. We MAY NOT decline an applicant due to past evictions (you read that correctly), we MUST ACCEPT a tenant-provided background check if was "generated" in the last 30 days (I used quotes because, well, Photoshop), we MAY NOT ask their references if they were ever late on their rent or got served a notice. There is even a case in court right now that is challenging the minimum income threshold of "3 times monthly rent" as discriminatory. The list goes on, but I think I made my point.
- Lagrangeville, NY · Member since 2017 · 144 posts · 218 votes6y
I think it's time to call Rocko, Vinnie and Paulie from the Bronx to come over and pay your queens tenant a visit. They are expensive, but have a guaranteed tenant move out time of under 11 minutes.
- Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes6y
Originally posted by @Tony Merchan:
I have a two family house in Queens NY
1st floor tenant has been paying up to date
2nd floor tenant has stop paying since March , spoke to him today said he won’t pay until July because of covid . Now I spoke to my attorney there isn’t much to do since New York is tenant friendly, courts are backed up , evection are on hold . On Wednesday NY passed a bill that would temporarily stop landlords from evicting tenants for no payment issue related to the pandemic ? What about landlords ? I still have to pay mortgage and taxes . I tried to speak to tenant he’s just very aggressive there’s no form of communication with him . FYI he’s lease doesn’t end until November 2020 .
Contact your mortgage lender and explain the situation to them. Banks are allowing "mortgage forbearance" where you can put off paying your mortgage for a certain number of months, up to a year. This will give you time to deal with the non-paying tenant, get things straight, and start paying again.
If you can avoid this and pay the mortgage without forbearance, I recommend it. Kicking the can down the road is rarely a good option.
The DIY Landlord Book4.7248 Reviews - Rock Star Extraordinaire · Northeast, TN · Member since 2015 · 10k+ posts · 16k+ votes6y
Originally posted by @Tony Merchan:
@Salman V. A group of landlord in Westchester county filed a lawsuit claiming cuomo evection moratorium is unconstitutional...
with my case Attorney are going to serve him with notice of unpaid month hopefully they get intimidated.
This type of scenario would be a good case to bring through the court system. I think there's going to be a good argument on both sides - landlords will argue the due process clause, states will argue the right to regulate commerce. I think the national case law on landlord-tenant relationships is pretty thin because the courts usually view this as intrastate, rather than interstate commerce.
Skyline Properties - Property Manager · Cleveland, OH · Member since 2019 · 446 posts · 566 votes6y
Originally posted by @Wesley W.:
Originally posted by @Anna Sagatelova:
And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
Well, NY was way ahead of you on this one. They are removing, piece by piece, any discretion landlords have to properly screen. We MAY NOT decline an applicant due to past evictions (you read that correctly), we MUST ACCEPT a tenant-provided background check if was "generated" in the last 30 days (I used quotes because, well, Photoshop), we MAY NOT ask their references if they were ever late on their rent or got served a notice. There is even a case in court right now that is challenging the minimum income threshold of "3 times monthly rent" as discriminatory. The list goes on, but I think I made my point.
This sounds terrible, but I actually just tried researching these points and couldn't find anything that says past evictions are off the table and other things you mentioned. Can you please point me in the right direction?
- Property Manager · Cleveland, OH · Member since 2019 · 446 posts · 566 votes6y
Originally posted by @Joe Splitrock:
Originally posted by @Anna Sagatelova:
@Joe Splitrock I agree that this puts landlords in a very difficult position, but I disagree with your interpretation of due process and equal protection. I'm not a practicing attorney, and I'm not here to give legal advice, but I also don't think it's constructive to read a few words from the 14th Amendment and declare a faulty interpretation.
All of these measures, even if they do get extended for another term, are temporary in nature. The government certainly doesn't want an uptick in foreclosures again, barely a decade after the last housing market crash. This is why it's more constructive for owners to look at their mortgage forbearance options and remind tenants that there will be legal recourse for back rent in the coming months. And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
It is my interpretation, but there are many legal experts who believe the eviction ban is a constitutional violation. My state refused to enact an eviction ban, specifically citing their legal interpretation of our state and federal constitution. As with any legal debate, only the courts decide what argument holds up.
As a property manager, you know the reality of collecting back rent. Once a tenant is a month late, the odds of them catching up are near nothing. A tenant who couldn't pay rent March 1st was in trouble before COVID even hit and was living paycheck to paycheck. The idea that someone in this situation would pay back 5 months or more back rent is illogical. I don't think you believe these landlords have any chance of getting their money, do you?
I agree in general that screening can catch most of the bad tenants, but in some markets and some property classes, higher risk tenants are the norm. I don't rent to these type of people, but if NO landlord rented to them, it would cause a massive increase in homelessness. The government wants to force landlords to accept tenants with troubled credit histories, but at the same time they want to take away recourse when that tenant doesn't pay. It is illogical. Again, I am with you on not renting to these people, but if nobody did, that would be a bigger problem. People who take the risk, should have the recourse to get people out quickly.
As far as reference checks, I have very little trouble getting responses. The more shocking thing I see is nobody is contacting me. I have had numerous cases where tenants tell me I was given as a reference and nobody calls.
You are right it comes down to screening and states with 2-3 month eviction bans were very moderate. The states pushing this out to 6 months or more are out of control.
I mean that the collection of back rent is enforceable in court, once landlords can file again. Sure, it's likely that they can't afford to catch up on their own, but they can be incentivized to get on a payment plan and/or at least start paying rent now. Most people don't want a huge judgment on their record - unless this really is someone who truly has "nothing to lose" as someone else mentioned above. In which case... back to our point about screening.
- Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes6y
Originally posted by @Anna Sagatelova:
Originally posted by @Joe Splitrock:
Originally posted by @Anna Sagatelova:
@Joe Splitrock I agree that this puts landlords in a very difficult position, but I disagree with your interpretation of due process and equal protection. I'm not a practicing attorney, and I'm not here to give legal advice, but I also don't think it's constructive to read a few words from the 14th Amendment and declare a faulty interpretation.
All of these measures, even if they do get extended for another term, are temporary in nature. The government certainly doesn't want an uptick in foreclosures again, barely a decade after the last housing market crash. This is why it's more constructive for owners to look at their mortgage forbearance options and remind tenants that there will be legal recourse for back rent in the coming months. And then SCREEN SCREEN SCREEN. We do each other a huge disservice by not adequately screening tenants, and I'm talking specifically about landlord references. And how about when you (the general "you", not specifically you, Joe) get a call/email about one of your past tenants? It's beyond unfortunate how many of those go unchecked and unresponded.
Any tenant who is blatantly taking advantage of courts being closed and a moratorium on evictions/collections didn't just become this way overnight. We landlords and PMs need to be much more cooperative with each other as well as more diligent in our tenant screening. Especially moving forward!
It is my interpretation, but there are many legal experts who believe the eviction ban is a constitutional violation. My state refused to enact an eviction ban, specifically citing their legal interpretation of our state and federal constitution. As with any legal debate, only the courts decide what argument holds up.
As a property manager, you know the reality of collecting back rent. Once a tenant is a month late, the odds of them catching up are near nothing. A tenant who couldn't pay rent March 1st was in trouble before COVID even hit and was living paycheck to paycheck. The idea that someone in this situation would pay back 5 months or more back rent is illogical. I don't think you believe these landlords have any chance of getting their money, do you?
I agree in general that screening can catch most of the bad tenants, but in some markets and some property classes, higher risk tenants are the norm. I don't rent to these type of people, but if NO landlord rented to them, it would cause a massive increase in homelessness. The government wants to force landlords to accept tenants with troubled credit histories, but at the same time they want to take away recourse when that tenant doesn't pay. It is illogical. Again, I am with you on not renting to these people, but if nobody did, that would be a bigger problem. People who take the risk, should have the recourse to get people out quickly.
As far as reference checks, I have very little trouble getting responses. The more shocking thing I see is nobody is contacting me. I have had numerous cases where tenants tell me I was given as a reference and nobody calls.
You are right it comes down to screening and states with 2-3 month eviction bans were very moderate. The states pushing this out to 6 months or more are out of control.
I mean that the collection of back rent is enforceable in court, once landlords can file again. Sure, it's likely that they can't afford to catch up on their own, but they can be incentivized to get on a payment plan and/or at least start paying rent now. Most people don't want a huge judgment on their record - unless this really is someone who truly has "nothing to lose" as someone else mentioned above. In which case... back to our point about screening.
The trouble is for certain property classes, every tenant has multiple judgments and they do have nothing to lose. In some states, they have greatly limited the ability to screen. The other reality is that you need to locate locate someone to serve them. If the tenant leaves voluntarily before the eviction moratorium is lifted, you may never be able to locate them to serve them.
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