Emergency COVID-19 measures passed by Federal, state and local governments have created a confusing patchwork of tenant protections. To see if any protections apply to you, start at the Federal level and work down the list from Federal, to state, to local. NOTE: Commercial tenants can skip directly to STEP THREE -Local Protections.
STEP ONE: CHECK FEDERAL PROTECTIONS
Federal CDC Temporary Eviction Halt
Effective 9/4/20 through 3/31/21, the Centers for Disease Control and Prevention (CDC) has placed a nationwide halt on evictions of qualified residential tenants. California has also enacted statewide eviction bans that generally provide greater protection for tenants experiencing COVID-19 financial distress (see State Protections below). However, if you are experiencing financial distress that is not COVID-19 related you might still be protected by the CDC’s eviction ban.
STEP TWO: CHECK STATE PROTECTIONS
California Senate Bill No. 91 (SB 91)
In September 2020 the California Legislature hastily passed the California COVID-19 Tenant Relief Act of 2020 (CA Relief Act) which temporarily stopped landlords from evicting qualified residential tenants-but only through January 2021. Facing a looming flood of evictions, on 1/28/21 the legislature passed Senate Bill No. 91 COVID-19 Relief: Tenancy and Federal Rental Assistance (SB 91), which essentially extends the expiring CA Relief Act eviction moratorium and adds new Federal stimulus money for housing assistance:
- HOUSING ASSISTANCE: Federal housing assistance is available for a tenant-household with at least one member experiencing pandemic-related unemployment or financial hardship, an income of 80% or less of the area median, and a proveable risk of housing instability. Households with less than 50% of the median income or one member unemployed for 90 days immediately preceding application have priority. $1.4 billion will be distributed by the “California Emergency Rental Assistance Program,” and $1.2 billion will be distributed by local agencies. States and localities are scrambling to get the money and to figure out how to distribute it. Generally, state and local applications should be available starting in early March, 2021.
- Help With Past Due Rent: With a tenant’s assistance, the landlord can apply for and use the funds to repay up to 80% of the tenant’s past-due rent accumulated between 4/1/20 and 3/31/21. The landlord must then forgive the remaining 20% outstanding balance. If the landlord refuses to participate, 25% of the past due rent amount will instead go directly to the tenant.
- Help With Future Rent: The funds must first be used for rent past-due from 4/1/20 – 3/31/31 followed by future rent, utilities and household expenses (in that order). However, payments toward rent incurred after 3/31/31 are capped at 25% of the monthly rent due.
- EVICTION MORATORIUM: Tenants behind in rent from 3/1/20 to 6/30/21 because of ‘COVID-19 illness or related lost-income cannot be evicted if-within the 15 day notice period and thereafter monthly-they provide landlords with declarations of “COVID-19 related financial distress”. Tenants must also pay a minimum of 25% of the total rent due going forward (the amount of rent assistance available to tenants with non-cooperative landlords). The 25% can be paid over time or in one lump sum-at any time-up to and including 6/30/21. Tenants who fail to pay the 25% can be evicted starting 7/1/21. Any remaining unpaid rent converts to consumer debt collectible in small claims court starting 8/1/21.
- Landlords can’t charge late or collection fees.
- Landlords seeking to evict for unpaid rent must document good-faith efforts to help tenants obtain household assistance. Courts can reduce damages to the extent landlords refused those funds.
- Landlords cannot use pandemic-related rent arrears on credit reports as a negative factor in choosing tenants.
- Only tenants who can’t pay rent because of COVID-19 related financial impacts are protected. “Just cause” evictions are allowed, meaning landlords can still evict tenants who violate other terms of the lease (e.g., causing a nuisance, having unauthorized pets or roommates) or for past-due rent incurred before the pandemic (prior to 3/1/20) – provided the evictions are done in good faith.
- “No-fault” evictions where the tenant is blameless, like owner move-ins, remodels/demolitions, and taking the unit off the market, are allowed except for demolition/substantial remodel (unless necessary to comply with health and safety laws).
- Landlords who resort to “self-help” evictions (illegally attempting to remove tenants via lock-outs, etc.,) or who retaliate against qualified tenants, are subject to penalties.
Confused? The State of California created a web-page at HousingIsKey.com to educate tenants about the law. Landlords and tenants may also call the “COVID-19 Information Hotline” at (833) 422-4255 for assistance.
STEP THREE: (And commercial tenants) CHECK LOCAL ORDINANCES
Adding to the confusion; if a city or county has a more protective local ordinance, the eviction or other protections of that local ordinance -rather than those of SB 91 – might apply. Early in the pandemic, Gov. Gavin Newsom declared a California-wide state of emergency (N-44-20) that (among other price controls) automatically caps rent increases. Via two additional emergency orders, Newsom also first allowed individual cities and counties to protect residential and commercial tenants suffering COVID-19 related financial hardships (3/16/20 Executive Order N-28-20) and then to extend those protections if they choose to do so. (6/30/20 Executive Order N-71-20 and 9/23/20 Executive Order N-80-20). Over 150 cities and counties quickly enacted ordinances banning either residential or commercial evictions, or both. Intended as short-term “stop-gap” measures, all of these local ordinance were created prior to the statewide laws, and most of them expired on 9/30/20 along with Executive Order N-71-20. Still, although SB 91 is meant to replace those ordinances, over 40 remain in effect:
- For residential tenants: Tenants may also live in towns or counties with pre-existing unexpired local eviction moratoriums. If so, those local eviction protections may provide broader eviction protection or cover tenants who don’t qualify for protection under SB 91. Local ordinances may also protect against rent increases, etc.
- For commercial tenants: Although SB 91 does not cover commercial tenants, most local eviction moratorium ordinances do. And, on 9/23/20 Gov. Newsom signed Executive Order N-80-20 allowing local jurisdictions to extend protections for commercial tenants through 3/31/21. It’s now up to individual cities and counties to do so if they choose.
Check the chart below to see whether your city or county enacted an ordinance, if so whether it’s still in effect, and what type of tenants the ordinance protects.
If a Local Ordinance Exists:
- Under most (but not all) local ordinances, you must have suffered a COVID-19 related substantial decrease in household or business income because of a layoff; reduction of work or business hours; decreasing demand; medical and childcare-related expenses; or from complying with any government response to COVID-19 (sheltering in place, etc.).
- Prepare to prove your hardship. Most ordinances make tenants document COVID-19 financial difficulties with (for example) letters from an employer citing COVID-19 reduced work hours, termination, or other reductions; paycheck stubs and/or bank statements showing a post-outbreak pay cut; bills for out-of-pocket medical expenses; and/or documents showing the closure of a school or child care facility where a child would otherwise be during working hours.
- Don’t assume you are automatically protected. Almost all ordinances make you notify your landlord in writing that you can’t pay rent – in many cases when or even before the rent is due. “In writing” generally includes emails or texts to your landlord or the landlord’s representative when you have previously communicated via those methods. Ask for written confirmation that your landlord received your notification.
- You’re still expected to pay eventually, so negotiate with your landlord. These ordinances are eviction moratoriums, not rent moratoriums; you are still responsible for unpaid rent. Try to negotiate a reasonable payment plan.
- Generally, landlords can still serve notices and file eviction actions. Most of these ordinances provide special defenses that tenants must raise.
By Chris Barta, J.D. Nolo Press March 1, 2021