As the COVID-19 pandemic progresses, emergency measures passed by Federal, state and local governments have created a confusing patchwork of protections for tenants. While most of these measures temporarily prevent landlords from evicting qualifying non-paying tenants, none forgive the obligation to abide by the lease-meaning sooner or later tenants are expected to pay. To see if any protections apply to you, start at the Federal level and work your way down the list (from Federal, to state, to local). Generally the "closer to home" you get (e.g., county or city level), the better the protections will be. NOTE: Commercial tenants can skip directly to STEP THREE.
STEP ONE: CHECK FEDERAL PROTECTIONS
Federal CDC Temporary Eviction Halt
Effective 9/4/20 through 12/31/20, the Centers for Disease Control and Prevention (CDC) announced a nationwide freeze on evictions of qualified residential tenants. You can read more about the CDC ban here. On 9/1/20 California also enacted a statewide eviction ban that generally provides greater protection for tenants experiencing financial distress because of COVID-19. However, if you are experiencing financial distress that is not related to COVID-19, or being evicted for a "no-fault" reason (e.g., owner move-in) you might still be protected by the CDC's eviction ban. Nolo offers an FAQ on the CDC Eviction Halt along with a free, downloadable declaration.
Federal Mortgage-Based Protections
Tenants renting a single family home that the landlord financed with an FHA-insured mortgage may be covered by the C.A.R.E.S. Act limited mortgage-based protections through 12/31/20.
STEP TWO: CHECK STATE PROTECTIONS
California State COVID-19 Tenant Relief Act of 2020 (CA Relief Act)
The new California COVID-19 Tenant Relief Act of 2020 (CA Relief Act) prevents landlords from evicting qualifying financially impacted residential tenants. Although at best a "stop-gap" measure, most California tenants are at least temporarily protected from eviction (through 1/21/21) by this law, which provides that:
- Only tenants who can't pay rent because of COVID-19 related financial impacts are protected by the CA Relief Act. Landlords can still evict tenants for violating other terms of the lease (e.g., causing a nuisance, having unauthorized pets or roommates) or who were already behind in rent before the pandemic (prior to 3/1/20).
- What about evictions where the tenant is blameless, like owner move-ins, remodels/demolitions, and taking the unit off the market? The "Just Cause" protections of the 2019 CA Tenant Protection Act now apply to all tenants until 1/1/21, except where necessary to comply with health and safety laws. Landlords cannot use "no fault" evictions as a "workaround" to evict financially distressed tenants.
- Tenants who are behind in rent are now separated into two date-based categories (although tenants can fall into both):
- CATEGORY ONE "Protected Time Period" for failure to pay rent due between 3/1/20 and 1/31/21: Landlords must now give tenants 15 days notice (not including weekends or judicial holidays) that they are being evicted for non-payment of rent during the protected time period. Tenants who missed rent payments during this period, because of COVID-19 illness or lost-income financial distress cannot be evicted for failure to pay rent during that five-month period if within the 15 day notice period they provide landlords with a declaration of "COVID-19 related financial distress". Tenants who earn more than $100,000 or 130% of the local median income must also provide proof of financial distress upon request. All unpaid rent from that period will be converted into consumer debt (similar to credit card or personal loans), which landlords can only collect in small claims court starting 3/1/21. Landlords must give tenants who have missed payments notice of these new rights.
- CATEGORY TWO "Transitional Time Period:" From 9/1/20 on: Tenants who can't pay some or all of their rent going forward because of 'COVID-19 illness or lost-income financial distress cannot be evicted if-within the new 15 day notice period-they provide landlords with a declaration of "COVID-19 related financial distress". Tenants who earn more than $100,000 or 130% of the local median income must also provide proof of that financial distress upon request. Tenants must also pay a minimum of 25% of the total rent due going forward. The 25% can be paid over time or in one lump sum-at any time-up to and including 1/31/21. Tenants who fail to pay the 25% can be evicted starting 2/1/21. Any remaining unpaid rent convert to consumer debt collectible in small claims court.
- Tenants who fail to return a declaration of hardship within the 15 day notice period - without an acceptable reason - can be evicted for non-payment of rent starting 10/5/20.
- All past-due rent from 3/1/20 through 1/31/21 must be paid by 1/31/21. The CA Relief Act does not forgive unpaid rent.
- Landlords can start collecting unpaid rent on 3/1/21 in small claims court. However, that unpaid rent will not appear on tenant credit reports.
- Landlords who resort to "self-help" evictions (illegally attempting to remove tenants via lock-outs, etc.,) or who retaliate against qualified tenants, are subject to penalties.
Confused? The State of California created a web-page at HousingIsKey.com to educate tenants about the law. Adding to the confusion, if a city or county has a more protective local ordinance that local ordinance-rather than the CA Relief Act-applies. See below.
STEP THREE: (And commercial tenants) CHECK LOCAL ORDINANCES
Early in the pandemic, Gov. Gavin Newsom declared a California-wide state of emergency (N-44-20) that (among other price controls) automatically caps rent increases. Via two additional emergency orders, Newsom also first allowed individual cities and counties to protect residential and commercial tenants suffering COVID-19 related financial hardships (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). Over 150 cities and counties quickly enacted ordinances banning either residential or commercial evictions, or both. Intended as short-term "stop-gap" measures, all of these local ordinance were enacted before the CA Relief Act, and most of them expired on 9/30/20 along with Executive Order N-71-20. Although the CA Relief Act was meant to replace those ordinances, over 40 are still in effect:
- For residential tenants: If a pre-existing unexpired local ordinance provides better protection than the CA Relief Act, then the local ordinance "preempts" or applies instead.
- For commercial tenants: The CA Relief Act does not apply to commercial tenants. However, most local eviction moratorium ordinances do. And, on 9/23/20 Gov. Newsom signed Executive Order N-80-20 giving local jurisdictions the option to extend protections for commercial tenants through 3/31/21. It's now up to individual cities and counties to do so if they choose.
Check the chart below to see whether your city or county enacted an ordinance, if so whether it's still in effect, and what type of tenants it protects.
If a Local Ordinance Exists:
- Again, if your town or county has an unexpired ordinance, the local ordinance applies rather than the CA Relief Act - with one wrinkle: The CA Relief Act requires local ordinances to have payback periods for residential tenants between 3/1/21 and 3/31/22.
- 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 hardship. Most ordinances make tenants document COVID-19 financial difficulties with (for example) letters from an employer citing COVID-19 reduced work hours, termination, or other reductions; 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 don't pay during a moratorium. Work with your landlord to arrange a reasonable plan under the circumstances.
- Generally, landlords can still serve notices and file eviction actions. Most of these ordinances provide special defenses that tenants must raise. If you are served with legal documents, contact an attorney or a tenants' rights organization as soon as possible.
If a Local Ordinance Doesn't Exist, Doesn't Apply, or has Expired:
- Don't assume you are automatically protected. If you've been served with documents or notices, you must take action to avoid being evicted-in some cases as quickly as three days. You should contact an attorney or tenant organization if you need assistance or more information. You can find Nolo's comprehensive list of legal resources for tenants here.
CAUTION! This article and the local ordinance chart below were last updated on 11/20/20, but this area of law is rapidly evolving. Local tenant protection ordinances in particular change frequently, and many expired on 5/31/20. The material here can give you a broad idea of tenant protections - and protections apparently still in effect are listed in bold, but check your county and city government web pages and the actual ordinances/laws for the most recent information.