Emergency COVID-19 measures rushed into place by Federal, state and local governments created a confusing patchwork of tenant protections. Now at eighteen weeks-plus months into the Pandemic, many of these protections have expired. The main Federal CDC eviction moratorium ended on 7/31/21, and California's eviction moratorium ended on 9/30/21. However, some tenant protections remain in place, and Government rent assistance is also available.To see if any remaining protections apply to you, start at the Federal Protection level and work down the list from Federal to state to Local Ordinances. Commercial tenants can skip directly to Local Ordinances.
Federal CDC Temporary Eviction Halt and Mortgage-Based Protections
Starting on 9/4/20, the Centers for Disease Control and Prevention (CDC) placed several nationwide bans on evictions of qualified residential tenants. However, on August 27, 2021, the U.S. Supreme Court struck down the latest ban, ruling that the CDC lacked the authority to issue these types of orders. The government-backed mortgage buyers Freddie Mac and Fannie Mae (FHFA) temporarily prohibited landlords of multifamily properties with Freddie Mac- and Fannie Mae-backed mortgages who received payment forbearance, from evicting tenants. The mortgage-based eviction moratorium ended on September 30, 2021. Currently, few Federal eviction-restrictions remain.
The Consumer Financial Protection Bureau maintains a helpful webpage outlining resources for tenants.
CALIFORNIA STATE PROTECTIONS
California Tenant Relief and Rental Housing Recovery Acts
Although most Federal eviction bans no longer apply, individual states like California enacted their own tenant protections. In fact, California's statewide ban protected COVID-19 impacted tenants better than the CDC's invalidated moratorium did. In September 2020 the California Legislature hastily passed the California COVID-19 Tenant Relief Act of 2020 (CA Relief Act) to prevent landlords from evicting qualified residential tenants, and on 1/28/21 Senate Bill No. 91 COVID-19 Relief: Tenancy and Federal Rental Assistance (SB 91), which added more tenant protections along with Federal stimulus money for housing assistance. Although the California statewide eviction ban expired September 30, 2021, other tenant protections and benefits (notably rental assistance) remain available .
Effective 6/30/21 AB 832 (the "Rental Housing Recovery Act") extended the state eviction moratorium -- a third time -- through 9/30/21. In addition, landlords will be reimbursed 100% of unpaid rent incurred by qualifying tenants from 4/1/21 - 9/30/21:
- HOUSING ASSISTANCE: Federal housing assistance is available for a tenant-household with at least one member experiencing pandemic-related unemployment or financial hardship, an income of 80% or less of the area median, and a proveable risk of housing instability. Households with less than 50% of the median income or one member unemployed for 90+ days get priority. Initially, $1.4 billion was being distributed by the "California Emergency Rental Assistance Program," and $1.2 billion by local agencies. AB 832 added $5.2 billion in additional funds. Whether tenants apply to the State or local program depends on where they live.
- Help With Past Due Rent: With a tenant's assistance, the landlord can apply for and use the funds to repay 100% of the tenant's accumulated past-due rent. If the landlord won't participate, 25% of the past due rent amount will be paid to the landlord (thereby qualifying the tenant for eviction protections).
- Help With Future Rent: The funds must first be used for rent past-due from 3/1/20 followed by future rent, utilities and household expenses (in that order).
- Landlords can't charge late or collection fees.
- Landlords cannot use pandemic-related rent arrears on credit reports as a negative factor in choosing tenants.
- Only tenants who can't pay rent because of COVID-19 related financial impacts are protected. "Just cause" evictions are allowed, meaning landlords can still evict tenants who violate other terms of the lease (e.g., causing a nuisance, having unauthorized pets or roommates) or for past-due rent incurred before the pandemic (prior to 3/1/20) - provided the evictions are done in good faith.
- "No-fault" evictions where the tenant is blameless, like owner move-ins, remodels/demolitions, and taking the unit off the market, are allowed except for demolition/substantial remodel (unless necessary to comply with health and safety laws).
- 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.
- "Transition Period" EVICTION MORATORIUM for non-paying tenants: Tenants with past due rent because of 'COVID-19 illness or related lost-income from the "transition period" 9/1/20 to 9/30/21 cannot be evicted based upon the non-payment during that period if-within the 15 day notice period and thereafter monthly-they provided landlords with declarations of "COVID-19 related financial distress". Tenants must have also paid a minimum of 25% of the total rent due during that period (the amount of rent assistance available to tenants with non-cooperative landlords). The 25% must have been paid over time or in one lump sum-at any time-up to and including on 9/30/21.
- Tenants who failed to pay the 25% can be evicted starting 10/1/21. Any remaining unpaid rent converts to consumer debt collectible in small claims court starting 11/1/21.
- However, tenants must be given an opportunity to apply for assistance prior to being evicted for "transition period" non-payment. Tenants who apply within 15 business days of receiving a "pay or quit" notice (or who reply to a landlord's application on the tenant's behalf) cannot be evicted while the initial application is pending (20 days minimum). Tenants who are ineligible can be evicted, but landlords seeking to evict for unpaid rent must document good-faith efforts to help tenants obtain assistance. Courts can reduce damages to the extent landlords refused those funds.
- As of 10/1/21 tenants must again pay 100% of rent due. However, from 10/1/21 through 3/31/21 ("COVID-19 Recovery Period-Rental Debt"), tenants who miss payments must again be given an opportunity to apply for assistance per above prior to an eviction being filed.
Landlords and tenants can apply for the California rental assistance program at HousingIsKey.com and/or be directed to the appropriate local program. There is also an interactive "information app for tenants and landlords" on ca.gov., and a "COVID-19 Information Hotline" at (833) 430-2122.
LOCAL ORDINANCES (and commercial tenants)
Although the statewide general eviction moratorium has expired, some cities and counties still have protective local ordinances in effect. 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 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 if they choose to do so. (6/30/20 Executive Order N-71-20 and 3/4/21 Executive Order N-03-21). 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 created prior to the statewide laws, and most of them expired on 9/30/20 along with Executive Order N-71-20. Still, although AB 832 was meant to replace the remaining ordinances, roughly 40 remain in effect:
- Residential tenants may live in towns or counties with unexpired local tenant protection ordinances. If so, those local ordinances may prevent eviction, prohibit rent increases, and/or cover tenants who don't qualify for protection under state law.
- For commercial tenants: Although neither SB 91 nor AB 832 cover commercial tenants, most remaining local eviction moratorium ordinances do. And, Newsom's 3/4/21 Executive Order N-03-21 allowed local jurisdictions to extend protections for commercial tenants -- which many cities and counties have done .
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:
- Under most (but not all) local 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 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. These ordinances are eviction moratoriums, not rent moratoriums; you are still responsible for unpaid rent. Try to negotiate a reasonable payment plan.
- Generally, landlords can still serve notices and file eviction actions. Most of these ordinances provide special defenses that tenants must raise.
For All Tenants:
Landlord-tenant law has become incredibly complex. If you've been served with legal documents, you must take action to avoid being evicted-in some cases as quickly as three days! Contact an attorney or a tenants' rights organization as soon as possible.
CAUTION! This article and the ordinance chart below were last updated on 10/14/21, but this area of law is rapidly evolving. These local moratoriums change frequently, and many are contingent on states of emergency or related short-term authorizations .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.