ERAP, the Sudetenland, and GIRLS, GIRLS, GIRLS

Vladimir Putin wants Ukraine.  He annexed Crimea in 2014, and he has been backing Russian-speaking separatists in the Donbass region since the same time.  Now, he is massing troops on the eastern land border between Ukraine and Russia.  Ukraine also faces a threat of a naval invasion from the Euxine Sea to the south, as well as another land invasion from the northern land border, with Russia-aligned Belarus.  Putin’s nose is out of joint because the Soviet Union lost the cold war a generation ago.  He wants Ukraine within Russia’s sphere of influence, and he wants NATO’s borders pushed back to where they were in 1989.

Negotiations about the troop build-up and the threatened invasion have dominated the recent news cycle.  Anthony Blinken and his Russian counterparts have met in Geneva and there is talk of a possible Biden-Putin summit.  Some pundits think that that would give Putin more legitimacy than he deserves.  Biden put his foot in his mouth when he said that “incursions” might be OK, although “invasions” not so much.  Putin’s negotiation strategy seems to be to make outlandish demands that he knows will not be met, and then to say, “You have yourself to blame” when he takes action because they are not met.  It is a common ploy of thugs, dictators and schoolyard bullies.

But, here’s the thing.  In all but one of these negotiation sessions, Ukraine has been absent.  The negotiations have occurred almost exclusively between the great powers.  That is crazy.  Ukraine’s fate is being decided here.  If the Ukrainian people want to be part of NATO and if NATO wants them, Ukraine should be part of NATO.  If Ukraine wants to be a Russian client state, God bless.  The decision about what should happen to Ukraine should be up to Ukraine.

The New York State eviction moratorium lapsed on January 15.  That was an unexpected win for the good guys.  However, there is still a back-door bar to evictions that was passed with no input from property owners.  The great powers of the Legal Aid Society, the executive branch and the court system invaded our property and that of our residents without asking us how we felt about it, or whether we had any input as to how policy affecting same should be shaped.

ERAP is a product of federal and state statutes and state regulatory implementation.  Federal legislation passed in 2020 and early 2021 allocated a large-but-finite chunk of federal money to be used for emergency rent relief.  This money was to be allocated to the states and the distribution of said monies within each state was to be administered by the applicable state government as it saw fit, within the parameters of the federal statute.  

The New York State legislature delegated responsibility for distributing ERAP funds to an executive-branch department named the Office of Temporary and Disability Assistance (the “ODTA”).  In September 2021, the legislature amended the law to provide, inter alia, that eviction proceedings for non-payment of rent that would be eligible for coverage under the ERAP program can not be commenced against a household that has applied for ERAP assistance at any time unless or until a determination of ineligibility is made. The idea behind the rule was that property owners should not be allowed to use the remedy of eviction for non-payment until the possibility of ERAP compensation is exhausted.

In the abstract, that rule makes sense.  In the real world, not so much.  That is because in November of 2021, the New York State ERAP fund went broke.  The ODTA had distributed all of the funds that had been allocated to it by the federal government.  An announcement was posted to the ODTA website to the effect that funds had been depleted and applications were no longer being accepted.  ODTA leadership suggested shutting the program down.

Enter the Legal Aid Society and a named plaintiff called Maria Hildago.  Ms. Hildago et al. sued the ODTA in the New York County Supreme Court[1] to keep the ERAP program open even though it was bankrupt.  The ODTA protested that it would be meaningless to keep the program open in the regulatory equivalent of a dry retch.  The plaintiffs argued that because additional funds had been requested to top up the now-depleted ERAP funds, closing the program would prevent the plaintiffs from accessing these funds when they became available.

On January 6 of this year, the court issued a preliminary injunction in favor of the plaintiffs, requiring the ODTA to keep the program open pending a final decision on the merits.  In justifying the drastic remedy of a preliminary injunction, the court said that it had weighed the potential injury to the plaintiffs against the burden that the injunction would put on the respondent, the ODTA.  Potential injury to the plaintiffs was quite clear; they risked being put out on the street.  The court’s description of the potential burden to the respondent is worth quoting:

On the contrary, there is little to no harm in directing respondent to begin accepting ERAP applications again.  Logistically, all respondent need do is turn the appropriate functionality of its website on and, perhaps, although not explained by respondent, review applications for eligibility.  Such concerns cannot outweigh petitioners’ potential evictions from their homes and due process to participate in a federal assistance program passed for their benefit in response to the ongoing Covid-19 pandemic.[2]

This is rhetorical sleight-of-hand similar to Putin telling Biden that the invasion of Ukraine is justified because residents of Dubuque will be unaffected by it.  That is because there are three parties to every ERAP application, i.e. the tenant, the owner, and the ODTA.  By contrast, there are only two parties to the present suit, that is, Ms. Hildago et al. and the ODTA.  Of course the burden on ODTA of complying with the injunction is de minimis.  All they have to do is change their website and shuffle some papers.  The real issue is whether property owners and other tenants will be burdened by the injunction.  And yes, they will be severely burdened.  So long as the ODTA is bankrupt, it can not rule on applications.  So long as it cannot rule on applications, applicants will not receive determinations of ineligibility.  And so long as an applicant does not receive a determination of ineligibility, he or she cannot be evicted.  This is the case even if the resident has not paid a penny since March of 2020 and mortgage, repair and property tax bills continue to pile up like tanks on the eastern border of New Jersey.  That means that property owners will take a hit.  More importantly, it also means that other tenants – the people who struggle and pay their bills – will suffer when there are insufficient funds to fix potholes, pump septics and remove trash.  That is a severe burden – but nobody was in the room to mention that when the motion was argued.

I used to compare the absurdity of property law to modernist authors.  Now, I can compare it to current events.  If we want to compare big things with small, draw parallels between the negotiations about the fate of Ukraine to Hildago v. ODTA and mutare the mutanda, we know who Ukraine is.  Who is Putin?  The Legal Aid Society?  Judge Kotler?  Legislators in Albany?  Readers are encouraged to share their insights.

[1] In New York State, the “Supreme Court” is the trial-level court.  The actual state supreme court is called the Court of Appeals.

[2] Id.