Q&A: The CA Moratorium on Evictions
With many industries in California shut down due to Governor Newsom’s Shelter At Home Order, many landlords and tenants are trying to figure out what to do when a tenant can’t pay rent. Here’s an excerpt from the California Association of REALTORS legal department updated 4/13/2020 regarding this issue.
Does the Governor’s order establishing a statewide moratorium on evictions halt all evictions?
No. It only halts those evictions based on nonpayment of rent for a COVID-19 related reason. It does not limit the right of the landlord to terminate a tenancy for any other reason. For example, a landlord would still be permitted to terminate a tenancy based on a tenant’s breach of a covenant of the lease, illegal activity on the property, or even, assuming the property is exempt from the statewide just cause eviction law and the CARES Act, terminate a month to month tenancy without cause.
Even when the tenant has not paid rent, the Governor’s order does not technically prohibit the filing of an unlawful detainer. What is does is extend the time in which the tenant may file an answer by a period of 60 days where the tenant has complied with the other requirements of the order.
Does the order apply to all residential tenancies?
It practically does. It applies to existing tenancies in which the tenant had previously paid rent prior to March 27, 2020. The order does not apply to new tenancies.
Does the order apply to commercial tenancies?
No. It only applies to residential tenancies.
So, if a landlord wants to evict for a reason other than nonpayment of rent, can the landlord simply go ahead and file the eviction lawsuit based on a proper notice of termination?
No. The Judicial Council Order effectively freezes all unlawful detainer proceedings. And even before the Governor’s statewide moratorium order was issued, nearly every county in California had temporarily closed their courts or limited their hours of operations.
The governor’s order only applies to a tenant who cannot pay the rent due to a COVID-19 related reason. What types of COVID-19 related reasons would justify the tenant in not paying rent?
Examples of the types of reasons include:
- The tenant couldn’t work because the tenant was sick with a suspected or confirmed case of COVID-19 or caring for a family member who was also suspected to be sick with COVID-19.
- The tenant was laid off, lost hours or had income reduced due to COVID-19, the statewide emergency or any related government response.
- The tenant needed to miss work to care for a child whose school was closed in response to COVID-19.
This is a non-exclusive list. So any other reason where the inability to pay rent was due to COVID-19 could qualify.
When is the tenant required to notify the landlord in writing that they are unable to pay the rent?
No later than seven days after the rent is due. Within that time, the tenant must inform the landlord in writing that the tenant needs to delay all or some portion of the rent due to COVID-19 reasons.
Is the tenant required to provide verifiable documentation?
Yes. However, this documentation only needs to be provided to the landlord on or before the date the tenant actually pays the back rent.
What counts as verifiable documentation?
Termination notices, payroll checks, pay stubs, bank statements, medical bills, or signed letters or statements from an employer or supervisor explaining the tenant’s changed financial circumstances.
Does this mean the landlord waives the right to collect all rent?
No. There is nothing in the order that limits the right of the landlord to eventually collect all the rent that is due. The tenant still owes the entire amount of unpaid rent.
If the tenant does not pay the rent due to a COVID-19 related reduction in income, can the money be deducted from the security deposit?
Yes. Under most leases, including C.A.R.’s residential lease agreement, any time rent is due and not paid, it may be deducted from the security deposit.
What about lock-out orders?
Under the governor’s order, no lock-out of a tenant can take place as long as the tenant has met the rules as described above.
When does this order expire?
The order expires after May 31, 2020.
What about the various city and county rent moratoria that have been enacted? Are they still in force or does this order supersede them?
They are still in force. It’s true that the Governor’s order states that it supersedes his prior order from March 16, 2020, but that’s only when there is a conflict with that prior order. The current order is intentionally quite narrow in its scope. All it really does is extend the period in which a tenant may file an answer to an Unlawful Detainer by 60 days and only when the tenant has not paid rent for a COVID-19 related reason. It makes no changes beyond that. On the other hand, the prior order was relatively broad in permitting a city or county to adopt stricter requirements pertaining to all aspects of the Unlawful Detainer process.
It makes sense for the tenant to try to comply with the statewide order so that they get the benefit of it. But if they don’t, the drawback for the tenant is only that they don’t get an automatic 60-day extension on filing an answer in response to a Unlawful Detainer complaint.
For example, if there is an local eviction moratorium ordinance that allows the tenant to notify the landlord within 14 days of the rent due date rather than seven, as under the Governor’s order, and the tenant goes beyond the seven days, the tenant might still have an eviction defense under the ordinance, but the tenant would not get the benefit of the 60-day extension on the answer period.