Emergency COVID-19 measures passed by Federal, state and local governments have created a confusing patchwork of tenant protections. The main Federal CDC eviction moratorium expired on 7/31/21, but limited Federal mortgage-based protections remain (see note below). To see if any 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 STEP THREE -Check Local Ordinances.
STEP ONE: CHECK FEDERAL PROTECTIONS
Federal CDC Temporary Eviction Halt
On 9/4/20, the Centers for Disease Control and Prevention (CDC) placed a nationwide halt on evictions of qualified residential tenants that expired on July 31st, 2021. On August 3, 2021, the CDC issued a new order titled Temporary Halt in Residential Evictions in Communities With Substantial or High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-19 (Order). The Order went into effect immediately, but does not operate retroactively -- meaning it does not ban or stop evictions that were filed before August 3rd, 2021.
The Order prohibits residential landlords nationwide from evicting certain tenants through October 3, 2021. The Order protects tenants who:
In addition to the above requirements, one of the following financial criteria must apply. To qualify for protection, a tenant must:
- have earned no more than $99,000 (or $198,000 if filing jointly) in 2020 or expect to earn no more than $99,000 (or no more than $198,000 if filing a joint tax return) in 2021
- not have been required to report any income to the IRS in 2020, or
- have received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act, Section 9601 of the American Rescue Plan Act of 2021, or to any other similar federally authorized payments made to individuals in 2021 and 2021.
Tenants must complete a declaration under penalty of perjury that they meet the criteria listed in the Order.
Anyone who violates the Order may be subject to criminal penalties including fines and jail time.
Even with the Order in place, individual states can still enact their own tenant protections. California's statewide and local eviction bans generally provide greater protections for tenants experiencing COVID-19 financial distress. The California statewide ban remains in effect through September 30, 2021; some local protections remain in effect even longer (see below).
Federal Mortgage-Based Protections
The government-backed mortgage buyers Freddie Mac and Fannie Mae (FHFA) have prohibited landlords of multifamily properties with Freddie Mac- and Fannie Mae-backed mortgages from evicting tenants until at least September 30, 2021. For the most current details on the FHFA's tenant protections, see the FHFA information sheet. To find out if your rental is covered by the Fannie Mae or Freddie Mac eviction bans, visit Fannie Mae and Freddie Mac and enter your address. You can also use the National Low Income Housing's federal eviction moratorium lookup tool to see if your address is covered by one of the federal eviction bans.
The Consumer Financial Protection Bureau is maintaining a detailed explanation of the federal eviction bans.
STEP TWO: CHECK STATE PROTECTIONS
California Senate Bill No. 91 (SB 91)
In September 2020 the California Legislature hastily passed the California COVID-19 Tenant Relief Act of 2020 (CA Relief Act) which prevented landlords from evicting qualified residential tenants-but only through January 2021. Facing a looming flood of evictions, on 1/28/21 the legislature passed Senate Bill No. 91 COVID-19 Relief: Tenancy and Federal Rental Assistance (SB 91), which essentially extended the expired CA Relief Act eviction moratorium plus added Federal stimulus money for housing assistance.
Effective 6/30/21 AB 832 (the "Rental Housing Recovery Act") extends the state 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).
- EVICTION MORATORIUM: Tenants behind in rent from 3/1/20 to 9/30/21 because of 'COVID-19 illness or related lost-income cannot be evicted if-within the 15 day notice period and thereafter monthly-they provide landlords with declarations of "COVID-19 related financial distress". Tenants must also pay a minimum of 25% of the total rent due going forward (the amount of rent assistance available to tenants with non-cooperative landlords). The 25% can be paid over time or in one lump sum-at any time-up to and including 9/30/21. Tenants who fail 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.
- Tenants must be given an opportunity to apply for assistance prior to being evicted for non-payment. Tenants with approved applications but pending payments may have their tenancies reinstated.
- Landlords seeking to evict for unpaid rent must document good-faith efforts to help tenants obtain household assistance. Courts can reduce damages to the extent landlords refused those funds.
- 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.
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.
STEP THREE: (And commercial tenants) CHECK LOCAL ORDINANCES
Adding to the confusion; if a city or county has a more protective local ordinance, the eviction or other protections of that local ordinance -rather than those of SB 91 - might apply. 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 SB 91 is meant to replace those ordinances, over 40 remain in effect:
- For residential tenants: Tenants may live in towns or counties with unexpired local eviction moratoriums. If so, those local eviction protections may provide broader eviction protection, prohibit rent increases, and/or cover tenants who don't qualify for protection under SB 91.
- For commercial tenants: Although SB 91 does not 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 the ordinance 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 8/4/21, but this area of law is rapidly evolving. These local moratoriums 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.