Eviction and COVID-19

Eviction and COVID-19 have affected many of the practices and assistance programs. While every tenant needs to follow good general practices of working with a landlord if you can’t pay your rent, Federal, state and local governments have also enacted a continuing flow of COVID-19 emergency tenant protections. Most of these practices merely delay evictions for struggling tenants. But some local ordinances completely ban evictions (in certain circumstances), and many require landlords to offer payment plans. None of these protections relieve the obligation to pay rent-they just temporarily (in most cases) prevent your landlord from evicting you.

Starting at the Federal level, check what (if any) protections apply to you and work your way down the list. Generally, the “closer to home” you get (e.g., county or city level), the stronger protections you’ll find.

Federal Level: Mortgage-based Protections
Under the Federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, all landlords with federally backed (Fannie Mae, Freddie Mac or HUD) mortgages or who participate in federally assisted rental housing programs (roughly 50% of all rental properties), were prevented from evicting or collecting fees/penalties from tenants based on non-payment of rent. These “blanket” restrictions expired on 7/24/20. However, as of 8/6/20 multifamily landlords with Fannie Mae or Freddie Mac backed loans who enter new or modified financial hardship forbearance agreements cannot evict tenants or charge late fees for non-payment of rent for the duration of those forbearance agreements and in certain cases even beyond. Those landlords must also inform tenants of these restrictions and offer flexible payment plans.

The Federal Housing Finance Agency (FHFA) instituted a similar eviction moratorium which included single family homes financed by Fannie Mae or Freddie Mac. The moratorium on single family homes expires on 8/31/20.

Congress is currently negotiating the next round of Federal Coronavirus relief legislation – which may extend the moratoriums – but for now landlords can begin serving 30-day notices for tenants to vacate. And unless Congress takes conflicting action, starting 8/24/20 landlords can begin filing evictions.

If you live in a property with four or less units, contact your landlord regarding the type of financing on the property. If you live in a property with five or more units, use the Multifamily Loan Lookup Tools on the Fannie Mae and Freddie Mac web pages to search your unit’s address. You should check both websites.

Even under these mortgage-based protections, tenants are still ultimately responsible for paying full rent. You may find more relief at the state or local level.

California Governor: Emergency Protections Via Executive Orders
On 3/4/20 Governor Gavin Newsom declared a California-wide state of emergency (N-44-20) that (among other price controls) automatically caps rent increases. Via two additional orders, Newsom also first allowed cities and counties to enact their own tenant protections (3/16/20 Executive Order N-28-20) and then to extend those protections through 9/30/20 if they choose to do so. (6/30/20 Executive Order N-71-20). These local protections are discussed hereunder.

Eviction and COVID-19

California Courts: “Freeze” on Eviction Lawsuits
On 4/6/20 the California Judicial Council adopted Emergency Rule 1, which placed an eviction “moratorium” or “freeze” on California courts. Unless necessary to protect public health and safety, an eviction case (residential or commercial) can’t proceed either while Newsom’s N-44-20 state of emergency remains effective or for 90 days after it ends-even if the eviction is not COVID-19 related. Courts cannot issue a summons (which, once served on a tenant starts the eviction clock ticking) or enter a default judgment against a tenant who doesn’t respond to a summons. Court trials in pending cases are delayed for at least 60 days. In short, tenants must still pay rent, but cannot be evicted during the freeze period for failing to pay-or for few other reasons either.

Although courts are not taking action on most eviction cases, landlords can still serve tenants with a “Three Day Notice to Pay Rent or Quit” and file paperwork with the courts. However, courts will not actually force tenants to vacate until 90 days after the state of emergency is lifted.

As of 8/7/20, Newsom has not said when he will lift the emergency. However, multiple lawsuits challenging the court freeze are pending, and the Judicial Council is considering ending the freeze effective 8/14/20.

Local City and County Eviction “Moratorium” Ordinances
Pursuant to Newsom’s executive orders, over 150 cities and counties enacted local eviction moratoriums. Most of these moratoriums protect tenants suffering COVID-19 related financial hardships, and many make landlords offer payment plans. Some moratoriums, like those of Alameda County and San Francisco, are true eviction moratoriums, meaning landlords generally cannot evict tenants during the emergency even if the failure to pay is unrelated to COVID-19. And, those landlords cannot evict tenants who could not pay because of COVID-19 hardships even after the emergency ends.

Some cities and counties have also instituted total bans on rent increases (e.g., Oakland, Concord, Eureka, San Jose, Santa Ana, West Hollywood, Contra Costa County), meaning landlords cannot increase rent at all. See the chart below for more information.

While none of these local ordinances waive or relieve the obligation to pay rent that is due or past-due, they do generally provide the most tenant protections-that is, if your city or county has enacted one.

If a Local Ordinance Applies

  • Under most 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 change of situation. Most ordinances make tenants document COVID-19 financial difficulties via (for example) letters from an employer citing COVID-19 reduced work hours, termination, or other reduction; 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/orders 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. Remember, these ordinances are eviction moratoriums, not rent moratoriums; you are still considered responsible for any rent you forego paying now-in some cases in as little as 90 days. Work with your landlord to arrange a reasonable plan under the circumstances.

If a Local Ordinance Doesn’t Exist, Doesn’t Apply, or has Expired

If your city or county has not enacted eviction protections-or any protections have expired or do not apply-you still are protected under the temporary eviction freeze in the courts. Your landlord can file an eviction case against you-it just will not move forward until 90+ days after the state emergency ends. There are some helpful steps you can take in the interim:

  • Alert your landlord in writing via text, e-mail or letter before rent is due (or as soon as possible) that you cannot pay some or all of the rent. This will help preserve your rights under existing and possibly future tenant protections. Save a copy of all written correspondence.
  • Gather proof of how COVID-19 has reduced your income (layoff notice, pay-stubs, medical bills, etc.,). Although you are not required to give this information to your landlord, it will likely still be useful.
  • Offer to negotiate, or at least keep communication open. You may want to pay a portion of the rent if possible.
  • If you are served with court documents, contact an attorney or a tenants’ rights organization.

More Protections to Come
California lawmakers have proposed additional tenant protections, but so far none have become law.

This article and the local ordinance chart below were last updated on 8/7/20, but this area of law is rapidly evolving. Local tenant protection ordinances in particular seem to be changing frequently, and many expired on 5/31/20.

If you have any questions about eviction and COVID-19 policies and protections, then contact us.

The attorneys with Beyer, Pongratz, and Rosen have vast experience with every aspect of estate planning, probate, and business structuring. We are here to help! Give us a call to get started 916-369-9750 or contact us online to set up a FREE consultation. We look forward to working with you.