Brownstein Hyatt Farber Schreck

Gov. Gavin Newsom extended eviction moratorium authority on May 29, 2020. The new order allows local governments to extend prohibitions on landlords from evicting tenants for nonpayment of rent and prohibits enforcement of evictions by law enforcement or courts until July 28, 2020. This means that landlords may have few remedies available if local governments do not adopt additional measures. However, to understand the impact of this order, it must be read in conjunction with other orders that were also passed.  

On March 5, 2020, Gov. Newsom declared a state of emergency in response to COVID-19, which continues to remain in place. On March 27, 2020, Gov. Newsom issued an executive order banning the enforcement of eviction orders for renters affected by COVID-19 through May 31, 2020. In the interim, on April 6, 2020, the Judicial Council of California took Gov. Newsom’s order one step further and issued an emergency rule suspending eviction actions. Under the Judicial Council’s rule, a court cannot issue a summons on a complaint for an eviction unless the court finds that the action is necessary to protect public health and safety. The rule applies until 90 days after Gov. Newsom lifts the state of emergency or the Judicial Council amends or repeals the rule. Gov. Newsom’s order was silent as to the state of emergency.

Gov. Newsom’s Order Is Only Applicable If:

  1. Local governments extend eviction moratoriums.
  2. Prior to March 27, 2020, the tenant paid rent to the landlord pursuant to the lease agreement.
  3. The tenant notified the landlord in writing before the rent is due, or within a reasonable period of time afterwards not to exceed seven days, that the tenant needs to delay all or some  payment of the rent because of an inability to pay the full amount due to reasons related to COVID-19, including but not limited to the following: 
    1. The tenant was unavailable to work because the tenant was sick with a suspected or confirmed case of COVID-19 or caring for a household member who was sick with a suspected or confirmed case of COVID-19;
    2. The tenant experienced a layoff, loss of hours, or other income reduction resulting from COVID-19, the state of emergency, or related government response; or
    3. The tenant needed to miss work to care for a child whose school was closed in response to COVID-19.
  4. The tenant must retain verifiable documentation, such as 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 to support the tenant’s assertion of an inability to pay. The tenant is not required to submit the documentation to the landlord in advance of the due date, but will only be required to provide the landlord with documentation of his/her inability to pay no later than the time of payment of back-due rent.

Tenants are not protected under Gov. Newsom’s order if they do not abide by the above requirements and are only protected if their local governments adopt additional measures. However, tenants remain protected under the Judicial Council of California’s rule until 90 days after California’s state of emergency is lifted. 

What Should Landlords Do in the Interim?

Gov. Newsom’s extension of his March 27, 2020, order should come as no surprise to landlords. Even so, Gov. Newsom’s order does not supersede the Judicial Council’s rule, which extends further than his 60-day extension assuming that the state of emergency has not been lifted. Thus, landlords should remain patient. Landlords should delicately remind their tenants that rent is not waived, but deferred. Landlords should encourage tenants to pay what they can so that tenants can effectively pay all deferred payments when the time comes. The goal is to develop a plan where tenants can stay housed while still meeting their obligations as a tenant.

Landlord Recommendations

  1. Continue to document and preserve a copy of all letters you sent to the tenant requesting rent;
  2. Continue to document and preserve a copy of all letters from the tenant notifying you of their inability to pay some or all of the rent due to the COVID-19 pandemic;
  3. Encourage your tenant to pay whatever he/she can and form your own plan together for repayment of missed months (no litigation is the least expensive litigation);
  4. Send a letter to your tenant to request rent payment and any documentation he/she has that permitted he/she to delay rent payment per COVID-19 exceptions;
  5. Send a letter to your tenant requesting documentation proving their lack of payment stems from the ongoing pandemic;
  6. Check your local government’s ordinances to determine whether local restrictions are in place and operate accordingly;
  7. Check your local government’s ordinances to determine the time frame the tenant has to pay you back rent; and
  8. File an unlawful detainer action if the tenant still refuses or cannot pay rent after the COVID-19 protections are lifted under Gov. Newsom’s order, the Judicial Council of California’s rules, and your local government’s ordinances.