Covid-19EvictionSusanna F. Wiseman

Residential Evictions During COVID-19

COVID-19 has prompted an incredible number of new laws, orders, changes in procedure, and other modifications to how and when a tenant may be evicted and when rents are actually due.  This is intended to be a nonexhaustive update through this date.  It is always recommended and necessary to confirm that no further orders, law or changes have occurred subsequent to the publication of this update.

The first question posed by landlords during this period is typically: can I evict a tenant at all?  The answer is yes, with many qualifications.  This was not always the case.  During the majority of the pandemic, there were not clear laws in place.

The Major Rules to Date

The Judicial Council of California (a judicial body), originally issued rules that directed the Courts not to order evictions.  Instead, the directions largely caused unlawful detainer matters not to be heard at all for some time.  The stated purpose of these rules was to provide relief until such time as the legislature could pass more broadly applicable laws.  This functional moratorium was ended by the Judicial Council effective September 1, 2020.  Therefore the Courts are now hearing these matters again, though constrained by new laws on this subject.

The CDC (Centers for Disease Control) issued the least complicated Order on this topic[1].  This federal agency prohibited the evictions of any residential tenants prior to December 31, 2020.  However, this Order does not prevent the landlord from instituting eviction proceedings.  Instead, this simply means that the actual eviction – the day in which the tenant would be removed from the property – cannot be before the end of the year.  The CDC’s Order has no bearing on commercial evictions.

California state issued its answer to the eviction process on August 31, 2020 (not coincidentally, the legislature waited to enact these laws until precisely one day before the Judicial Council’s rules expired).  The new laws update and amend an enormous number of statutes[2].  The new laws include the “Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020” (hereinafter, the “COVID Relief Act”).

Notably, these laws provided that the Court will not issue a summons on an unlawful detainer matter prior to October 5, 2020. (Code of Civil Procedure § 1179.01.5(b)(1)).  Therefore, though a case may be filed, it would not effectively be able to move forward prior to that date.  We are therefore only now seeing landlords be able to file.

It bears emphasis that one of the reasons for this October 5 date is written into the statute: “It is the intent of the Legislature that the Judicial Council and the courts have adequate time to prepare to implement the new procedures resulting from this chapter, including educating and training judicial officers and staff.”  In other words, this is all so new and different, that the Legislature wanted to make sure that even the Judges and Courts had time to learn what was going on.  Small wonder that an individual landlord may get lost in the maze of new rules.  And there are, of course, a host of new rules.  It is not possible to easily summarize all of the changes at issue.  However, a few highlights may be addressed.

Firstly, a Landlord may not evict any person without “just cause” This restriction applies to any tenant who has occupied the property for more than 12 months. (Civil Code § 1946.2).  Ordinarily, a 30, or 60 day notice (depending on the length of the tenancy and other factors) could be issued without giving a reason for the termination of a month to month tenancy.  That is no longer the case.  This change in the law is applicable until January 1, 2030.  Even after COVID is over, we can therefore expect this to be the ‘new normal’.  A list of what constitutes “just cause” is included in the statute: § 1946.2.  However, the categories and details can be extremely complicated and it is recommended to review such matters in detail and/or consult with legal counsel before declaring one or more of those grounds to apply.

Further, there are significant new requirements for additional notices that must be presented to a tenant who is behind on rents or who might otherwise be subject to eviction.  These notices are helpfully compiled by Los Angeles County[3].

That same website also provides a reasonable summary of new protections and restrictions relating to the collections of rent, and the terms on which rent must be repaid and can be enforced[4].

The New Procedures

The landlord must first give tenants 15 business days notice that the tenants are being evicted for non-payment of rent.  That notice must also include or be accompanied by a blank “Declaration of COVID-19-Related Financial Distress.”  That blank declaration has required content and copies are available online.[5]  If the tenant does not return the declaration, then the tenant may be evicted.  If the tenant does return the declaration, then the tenant is protected against eviction.

These protections are different depending on what time periods the tenant failed to pay rents.  For rents owed during March to August of 2020, the tenant cannot be evicted.  For rents due between September to January, 2021, the tenant must pay 25% of the rents due.  That can be paid monthly, or in a lump sum, such that at least 25% of the total rents due during September to January 31, 2021 are paid to the landlord on or before January 31, 2021.  A failure to pay this 25% of the rents subjects the tenant to eviction.  Failure to pay rent past the protected time period is treated as an ordinary failure to pay rent, and may subject the tenant to eviction.

The final question, then, is what about the rents?  Notably, the law does not forgive past due rents.  These rents are still ultimately due to the landlord.  The law only postpones the landlord’s ability to evict the tenant in response to a failure to pay and requires the landlord to accept the specified non payments, or staggered payments, of rent in order to avoid eviction.  The unpaid rent that accumulated during the protected period is otherwise treated as ordinary debt, owed by the tenant to the landlord.  Such debts may be collected in a lawsuit as against the tenant.  As a small mercy, the law also created new mechanisms for collecting past due rents.  Stating approximately March of 2021, the landlord can collect unpaid rents during the protected time periods, above, in small-claims court.  Small claims court proceedings are much less expensive, much less time consuming, and much less complicated than ordinary lawsuits.  Indeed, the most notable hallmark of a small claims proceeding is that lawyers are not permitted to represent individuals in a small claims case – the parties show up themselves to explain their case.  The simplified small claims proceedings are not ordinarily available in these situations, as small claims court ordinarily has restrictions on both the number of cases and the amount of money that is being sought in those cases.  These restrictions are waived for the purposes of collecting rents during the protected time period.  That means a landlord may sue in small claims to collect for any number of properties and for any amount of money in the small claims court starting March of 2021 for any past due rents that accumulated during the protected time periods.  This is anticipated to help minimize the additional cost and effort required to pursue past due rents.

Susanna F. Wiseman, Esq.




[2] A partial list of updated or amended statutes is as follows: Civil Code §§ 789.4, 798.56, 1942.5, 1946.2, 1947.12, 1947.13, 2924.15; Code of Civil Procedure §§ 116.223, 1161, 1161.2, 1161.2.5.  This does not include the new code sections precisely dealing with this subject which are primarily located at Civil Code § 3273.01, et seq; and Code of Civil Procedure § 1179.01, et seq.




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