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Coronavirus and Evictions

It’s an understatement to say the current coronavirus pandemic is an unprecedented time. People are facing a myriad of health, safety, work, and life issues, tensions are high, and questions naturally arise about legal rights and responsibilities. In this article, we’ll take a look at the legal landscape around COVID-19 in California eviction (unlawful detainer) cases in particular.

First, it's important to understand that there are multiple layers of rules involved. COVID-19 measures are put into place at the federal, state, and local (city or county) level. In addition to countrywide and statewide rules, cities and counties are enacting many local measures that can affect eviction issues, so legal research and analysis is often necessary just to find out which rules apply. We almost always have to be aware of federal, state, and local law, but during this pandemic especially, local city and county governments are doing a lot of the heavy lifting in deciding how to handle things like court operations, evictions, and tenants’ rights.

That said, eviction lawsuits are effectively “on hold” statewide until further notice. In early April, the California court system put statewide rules into place that, practically speaking, prevent landlords from making meaningful progress in eviction cases. Landlords can’t serve a summons or get a default judgment, and trial dates have to be set much farther out than usual. These restrictions apply to both residential and commercial evictions, and will remain in effect until 90 days after the Governor declares the state of emergency is over, or until the Judicial Council changes the rule. There are no guarantees on this timeline. We are currently expecting it to be months before eviction cases can progress once more.

There is an exception if the court determines that the eviction is necessary to protect public health and safety, but convincing a court of that would require highly unusual circumstances. For example, a landlord might be able to evict a tenant who is holding lockdown-protest-party mass gatherings without any kind of sanitation, but probably not a tenant who is just messy in addition to not paying the rent.

Beyond evictions being on hold, landlords and tenants should be aware of the substantive law that will affect how a case will turn out once it’s finally heard. Claims and defenses won’t go away just because the courts are temporarily closed. At some point, landlords will again be able to file eviction cases, which will almost certainly result in a surge in evictions. Below are some key points that aren’t exhaustive, but reflect our observations of the inquiries and conflicts we’ve seen during the pandemic, and appear likely to come up.

Tenants still legally owe the rent that comes due during this time, even though they can’t be evicted for nonpayment. When exactly the tenant has to pay the back rent, as a practical matter, will depend largely on local measures and any political relief.

The law provides a defense to nonpayment where a tenant was unable to pay rent because of the pandemic. This is an affirmative defense, meaning the tenant has the burden of proof. Tenants who have lost income because of the pandemic should prepare to prove this defense as well as possible, including collecting any available evidence (even a printed text or email from a former supervisor is much better than nothing). The tenant should notify the landlord in writing within seven days from when the rent is due, and provide any available supporting documents. If a tenant doesn’t do that, the tenant might still be able to assert the defense, but will bear the burden of proof on this point any event.

Habitability is still a defense to nonpayment, so landlords should not rely on the pandemic as a reason to not repair habitability issues. (Similarly, a tenant living in deplorable slumlord conditions should not assume she doesn’t have a case just because she’s not currently paying rent—but tenant claims against landlords are a topic for another day.) In general, the big-picture scheme of landlord-tenant law is still there, even though evictions are paused and many tenants are not paying rent.

As mentioned above, city and county rulemaking also come into play. For example, depending on what city your property is in, it may or may not be legal for a landlord to give a tenant a three-day notice to pay or quit (the legal notice required in order to evict a tenant for nonpayment), or the notice may be required to contain certain language. Depending on your county, it may be that the courts are closed, hearings are being postponed, and/or county sheriffs won’t do lockouts (courts and sheriffs are administered at the county level). These are all the case in Los Angeles County, but your location may have all, some, or none of these restrictions. The most severe shutdowns appear to be in urban areas, presumably due to the higher need to combat spread of disease in high-density areas.

The nutshell summary is that tenants can’t be evicted now and likely for months, but will eventually have to pay back the rent in full. This may provide some temporary relief, but it doesn’t really help the tenant long-term. Tenants have to pay back the full amount, and the amount of time given for repayment isn’t very long. In many cases it would benefit both tenant and landlord to work out an agreement. Each has something of value to offer the other, and it would be better to agree on something you can live with than to end up in court in the middle of a surge of eviction cases that have been postponed for months. Of course, agreements like this are optional and can be negotiated, and always consult with an attorney before signing a written agreement, which can legally bind you and affect your rights.

For homeowners, and landlords who depend on rental income to pay a mortgage, there is mortgage relief available through the CARES Act. This act placed a temporary prohibition on foreclosures for 60 days from March 18, 2020, and gives borrowers the right to request a forbearance for up to 180 days. More information about the act can be found at the Consumer Finance Protection Bureau’s website here. These provisions offer some relief to landlords who depend on their rental income to pay the bills. It is not immediately clear whether these provisions will be extended.

Information about state financial assistance related to the pandemic can be found here, including unemployment, some aspects of the eviction moratorium, and other programs that may be helpful.

If you have questions about your rights or responsibilities during this pandemic, it’s always best to retain the services of an attorney you are comfortable with.

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