California Real Estate Law: Coronavirus Puts Freeze on Some Evictions

Attorney John B. Marshall

John B. Marshall | Shareholder

March 28, 2020
Attorney Nicholas Kanter

Nicholas Kanter | Shareholder

March 28, 2020

Updated as of March 31, 2020

City of Los Angeles’ Eviction Moratorium

On March 31, 2020 the LA City Council passed Ordinance No. 186585, which expands on the temporary eviction relief measures set forth in Mayor Garcetti’s March 15, March 17 and March 23, 2020 orders. The most significant changes under the new ordinance are:

  • Residential tenants have up to 12 months following the expiration of the Local Emergency Period to repay past due rent that was unpaid due to COVID-19 (extended from 6 months). The “Local Emergency Period” is defined as March 4, 2020 to the end of the local emergency as declared by Mayor Garcetti. 
  • A landlord may not charge interest or a late fee on rent not paid for reasons related to COVID-19. This applies to both residential and commercial tenants. 
  • A landlord may not evict a tenant based on the presence of unauthorized occupants, pets or nuisance related to COVID-19 during the Local Emergency Period; and
  • A landlord must give written notice to its tenants of the protections afforded by the new ordinance within 30 days of March 31, 2020. Failure to give notice may result in penalties.

The March 15, 2020 and March 17, 2020 Orders

Mayor Eric Garcetti issued emergency orders on March 15, 2020 and March 17, 2020 prohibiting landlords from evicting residential or commercial tenants in the City of Los Angeles if the tenant is able to show an inability to pay rent due to circumstances related to the COVID-19 pandemic. These include:

  • Loss of income due to a COVID-19 related workplace closure;
  • Child care expenditures due to school closures;
  • Health care expenses related to being ill with COVID-19 or caring for a member of the tenant’s household who is ill with COVID-19; or
  • Reasonable expenditures that stem from government-ordered emergency measures.

Neither order excuses a tenant from the obligation to pay rent. Residential tenants have six months following the expiration of the order (i.e., March 31, 2020 unless extended) to pay back due rent. Commercial tenants will have up to three months following the expiration of the order to pay back due rent.

These orders do not prevent a landlord from filing an eviction action based on non-payment of rent. Rather, if a tenant contends the non-payment of rent was due to circumstances related to COVID-19, the tenant may raise that contention as an affirmative defense. Note that “circumstances” related to COVID-19 are not limited to the four listed above.

If a tenant does not pay rent, the landlord should inquire about the reason(s) for the non-payment before serving a three-day notice to pay rent or quit. If the reason is related to COVID-19, the landlord may request supporting documentation, such as: a letter from the employer citing COVID-19 as a reason for reduced work hours or termination, employer paycheck stubs, bank statements, or school district notifications.

The March 23, 2020 Order:

On March 23, 2020, Mayor Garcetti extended the reach of the eviction moratorium. In addition to restrictions on evictions due to failure to pay rent, the March 23 order prohibits a landlord from evicting a residential tenant during the COVID-19 “declared local emergency” in the City of Los Angeles if:

  • The eviction is a “no-fault eviction” (i.e., any eviction for which the notice to terminate the tenancy is not based on a default of the tenant); and
  • Any member of the household is ill, in isolation, or under quarantine.

Additionally, the March 23, 2020 order (which is effective until April 19, 2020) prohibits landlords from removing occupied residential units from the rental market under the Ellis Act while the Order is in effect.

The State of California’s Eviction Moratorium

The March 16, 2020 Order

On March 16, 2020, Governor Gavin Newsom issued an order which primarily lifted restrictions on a local government’s authority to impose limitations on residential and commercial evictions.

The order allowed the City of Los Angeles to implement the eviction controls discussed above. However, the order also suspends any statutory cause of action that could be used to evict or otherwise eject a residential or commercial tenant or occupant of residential property after foreclosure, but only as to any tenancy, or residential real property and any occupancy thereof, to which a local government has imposed a limitation pursuant to Paragraph 2 of the order.

In other words, prohibition only comes into play if a local government, e.g., City of Los Angeles, imposes a limitation on evictions pursuant to the Governor’s March 16, 2020 order. Since Mayor Garcetti’s March 15 order pre-dates Governor Newsom’s March 16 order, it is questionable whether the Governor’s order suspends all evictions in Los Angeles based on the failure to pay rent

The March 27, 2020 Order

Governor Newsom expanded eviction protections in a March 27, 2020 order. The new order extends the deadline (from 5 to 60 days) for a tenant to respond to a Complaint for Unlawful Detainer based on non-payment of rent if the tenant satisfies the following requirements:

a. Prior to the date of the Order, the tenant paid rent due to the landlord pursuant to an agreement;

b. The tenant notifies the landlord in writing before the rent is due, or within a reasonable period of time afterwards not to exceed 7 days, that the tenant needs to delay all or some payment of rent because of an inability to pay the full amount due to reasons related to COVID-19 (the order lists examples of reasons, such as lay-off, loss of hours, inability to work, etc.)

c. The tenant retains verifiable documentation, such as termination notices, payrolls records supporting the tenant’s claimed inability to pay. The documentation must be provided to the landlord no later than the time upon payment of back-due rent.

In addition, if a tenant can satisfy the requirements of (a) – (c) above, no writ of possession may be enforced while the order is in effect to evict a tenant from a residence or dwelling unit for non-payment of rent. The order stays in effect through May 31, 2020.

It will be interesting to see how a court will enforce the Governor’s extension of the response deadline on a complaint for unlawful detainer, since a statute requires a response within five days. This may require some clarification from the Chief Justice of the California Supreme Court, who issued other extension orders several days ago. In the absence of a clarification from the Chief Justice, a tenant may still want to file some response within the 5-day response deadline to avoid a default.   

John B. Marshall and Nicholas Kanter are real estate and business litigation attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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