Real Property Law

Questions Abound in Wake of Competing State and Federal Anti-Eviction Directives

By Joseph Little

Joseph Little

On August 31, 2020, Governor Gavin Newsom signed AB 3088 into law.  With the Judicial Council’s eviction ban ending on September 1, 2020, AB 3088 prohibits evictions based on nonpayment of rent for periods after March 1, 2020.  (See Related CLA article here.)

Under AB 3088, all 3-day notices to pay or quit for residential tenancies where the tenant is a natural person are extended to 15-day notices.  If a tenant provides a declaration of hardship within the 15-day period, the landlord may not evict the tenant for unpaid rent accrued between March 1 and August 31.  For unpaid rent accrued between September 1 to January 31, 2021, the tenant may not be evicted for nonpayment if that tenant executes a declaration of hardship within the 15-day period and pays at least 25% of missed rent payments by January 31, 2021.  Even though a tenant has delivered the signed declaration of hardship, the tenant remains contractually responsible for unpaid rent.  A landlord may not bring suit to recover however until March 1, 2021, but may do so in small claims court, regardless of the amount owed.  And, before September 30, 2020, landlords whose tenants have missed rent between March 1, 2020 and September 1, 2020 must provide a specific statutory notice to tenants informing them of their rights under AB 3088.  A court may not issue a summons for unlawful detainer before October 5, 2020.

Two days after Governor Newsom signed AB 3088 into law, the Centers for Disease Control and Prevention (“CDC”) ordered on September 2 that courts may not evict anyone before January 1, 2021 for nonpayment of rent (Notice Found Here) if, similar to AB 3088, the tenant signs a declaration, under penalty of perjury, that the tenant’s reason for nonpayment is “due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses.” (Form Found Here). Among other things the tenant must declare that he or she is using best efforts to obtain government assistance.  The tenant is still obligated for the unpaid rental amounts.  Unlike AB 3088, the protection for eviction only applies to those making less than $99,000 annually ($198,000 for joint returns) who sign the declaration form.

Perhaps the most interesting thing about the CDC order is that it “does not apply in any . . . area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.”  In many ways, AB 3088 is more protective than the CDC’s order: for example, there is no income requirement (although tenants with high incomes may have to provide evidence of hardship not required for other tenants), and the eviction restriction lasts into early 2021.  But, for rent due between September 1 and December 31 2020, tenants are obligated to pay a quarter of their rent to qualify for the eviction restriction (but the payment is not due until January 31 of 2021 so maybe the seemingly less protective requirement is not really less protective after all).  Further, the California law requires a landlord to give a tenant notice of the hardship exemption and provide an unsigned copy of the form to tenants as part of a notice to pay rent but there is no obligation under the CDC order for the landlord to notify a tenant of the tenant’s right to claim hardship.  The CDC order implies that tenants must pay as much as they reasonably can to avoid eviction.  These differences are so stark that Governor Newsom has outright declared that the CDC order does not apply at all in California (Newsome Statement). However, judges, not the Governor, will ultimately decide if the CDC order or California law is more protective of tenants.  Tenants, landlords, and counsel can expect to encounter situations where the CDC order is more protective of public health than AB 3088.  It remains unclear if the CDC order applies to jurisdictions that, on the whole, are more protective than the CDC order or whether courts might apply the more protective law for each eviction for that eviction’s circumstances (related article here).

For instance, the CDC order outright prohibits eviction for nonpayment of rent.  Assuming that one properly noticed a tenant for eviction before the Judicial Council’s eviction ban, and that the eviction is based on pre-COVID-19 nonpayment of rent alone, one should be able to evict under AB 3088.  The landlord would then most likely have to file a separate civil suit for collection of all rent, including rent accrued after the Judicial Council banned evictions.  However, the CDC order applies regardless of when default occurred; if the reason for eviction is solely nonpayment of rent in any amount, there can be no eviction before January 1.  If eviction itself is a public health threat in COVID-19, especially before the virus can be controlled in the United States, then an order prohibiting eviction for nearly four months should be more protective of public health than one that would allow immediate eviction.  There could potentially be numerous other examples of the CDC order prohibiting eviction when AB 3088 does not. 

To be sure, AB 3088 is not the end-all, and evictions must continue to comply with more protective local measures.   Moreover, it remains unclear (1) if the CDC order will be extended, shortened, strengthened, or weakened; (2) if the CDC order is enforceable in state eviction courts or allows removal of eviction proceedings to federal court; and (3) if state courts will enforce the CDC order.  What remains clear is that the vast majority of tenants can easily meet these declaration requirements under both sets of rules. 

In conclusion, deciding which rule applies is highly dependent on the facts surrounding the eviction and the any legislative, executive, or judicial development on the matter.  It is virtually certain that the uncertainties in the government responses to the COVID-19 eviction crisis are far from over.

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