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No Fooling – CDC Issues New Moratorium Order – April 1, 2021
Federal Eviction Moratorium Declared Unconstitutional – February 25, 2021
On February 25, 2021, a federal judge in Texas ruled that the federal eviction moratorium is unconstitutional. Attorneys for the landlords argued that the “authority to order property owners not to evict specified tenants… is not among the limited powers granted to the federal government in Article I of the Constitution.” The lawsuit did “not question that the States may regulate residential evictions and foreclosures” but only concerned whether the federal government could. In concluding that the moratorium is unconstitutional, the judge noted, “Although the COVID-19 pandemic persists, so does the Constitution.” The full decision can be accessed through the link.
Biden Extends Eviction Moratorium – January 21, 2021
California Eviction Moratorium – September 1, 2020
A landlord can currently evict a tenant for non-payment of rent, but the tenant can defend against the eviction by filing a declaration.
On March 4, 2020, Governor Newsom declared a State of Emergency related to COVID-19.
On April 6, 2020, the California Judicial Council issued Emergency Rule 1, which included the provision that “A court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.” This effectively stopped evictions from being filed. The rule was in effect through September 1, 2020.
On on August 31, 2020, Assembly Bill No. 3088, entitled the “Tenancy: rental payment default: mortgage forbearance: state of emergency: COVID-19” was enacted . AB 3088 provides a method for tenants enduring financial hardship due to the COVID-19 pandemic to remain in their homes through the end of January 2021. It does not relieve tenants of any financial obligations under their rental agreements. Instead, it delays the recovery of rent by landlords until March of 2021.
Beginning on September 2, 2020, landlords were able to proceed with eviction cases for most lawful causes—meaning a basis for eviction that is permissible under federal, state law, or local law—other than non-payment of rent or other charges under the rental agreement.
Beginning on October 5, 2020, landlords were able to proceed with eviction cases if the grounds for the eviction is nonpayment of rent or other charges. But to do so, the landlord must serve a notice giving the tenant a 15 business-day window in which to make one of the following
choices: pay the demanded amount, vacate the premises, or return a declaration to the landlord, signed under penalty of perjury, indicating that the tenant cannot pay the demanded amount because of a COVID-19 related financial hardship. A tenant cannot be evicted for COVID-19 rental debt accrued between March 1, 2020 and August 31, 2020. A tenant also cannot be evicted for COVID-19 rental debt accrued between September 1, 2020 and January 31, 2021 if the tenant pays 25% of the rent and other charges due during this period before this period ends.
A landlord can challenge a tenant’s claim of inability to pay if the tenant is a high-income tenant. A “high-income tenant” is defined as as a household making more than $100,000 annually or more than 130 percent of the median income for the county, whichever is higher. The 130% of median income in Kern County does not exceed the $100,000 limit except for households having six or more persons:
- A 6 person household can have annual income up to $106,600
- A 7 person household can have annual income up to $113,945
- An 8 person household can have annual income up to $121,290
Beginning on February 1, 2021, landlords will be able to proceed with eviction cases under pre-COVID-19 laws against those tenants who had a COVID-19 related financial hardship but failed to pay 25% of their rent between September 1, 2020 and January 31, 2021, as well as any tenant
who fails to timely pay their rent going forward.
Orders issued by the Centers for Disease Control may provide additional protection for some tenants.
Assembly Bill No. 3088 Provisions:
- Requires tenants to follow specified procedures to demonstrate COVID-19 related financial hardship, including providing documentation if they are a “high-income tenant,” as defined.
- Prohibits tenants who so demonstrate from being evicted for failure to pay rent or other charges (“COVID-19 rental debt”), first, accrued between March 1, 2020 and August 31, 2020 and, second, accrued between September 1, 2020 and January 31, 2021, if they pay 25% of the amount owed for the latter period by January 31, 2021. Tenants who fail to pay this 25% can be evicted beginning on February 1, 2021.
- Permits landlords to sue tenants for unpaid COVID-19 rental debt beginning March 1, 2021. Removes certain limits on small claims jurisdiction to facilitate collection of this debt.
- Increases, until February 1, 2021, the time that tenants have to respond to a demand to pay rent or other charges from three business days to 15 business days.
- Requires landlords to provide all tenants with a notice informing them of their rights under this bill within a specified time.
- Prohibits landlords from retaliating against tenants prior to February 1, 2021 for incurring COVID-19 rental debt. Increases financial liability of landlords who illegally evict tenants.
- Expands the Homeowners Bill of Rights until January 1, 2023 to cover small landlords, as defined.
- Requires a mortgage servicer that denies a borrower’s request for forbearance on mortgage payments for a property consisting of no more than four residential units to provide the borrower with a written explanation of the denial.
- Requires a mortgage servicer to review a borrower of a non-federally backed loan for at least one post-forbearance option consistent with specified federal agencies’ guidance.
- Restricts public access to court files for eviction cases based on non-payment of rent filed between March 1, 2020 and January 31, 2021.
- Clarifies the interaction between this bill and any related local ordinances.
- Requires the executive branch to engage with stakeholders about how to spend any future federal stimulus funding on housing stabilization.
- Sunsets the foregoing no later than February 1, 2025.
- Makes the following clarifying and technical changes to the Tenant Protection Act of 2019
- Revises the exemption applicable to duplexes to specify that it applies to a property containing two separate dwelling units within a single structure, neither of which is an accessory dwelling unit or a junior accessory dwelling unit;
- Specifies that the exemption for units built within the previous 15 years includes those that have received final inspection, final permit, or similar approval for initial residential occupancy of the unit during that time period;
- Aligns the definition of dormitories for the rent cap portion of the Act with the definition in the just cause portion of the Act;
- Corrects, in the rent cap portion of the Act, a reference in the notice required to be sent to all tenants in residential real property that is alienable separate from the title to any other dwelling unit whose owner is not a real estate investment trust, a corporation, or a limited
liability company in which at least one member is a corporation;
- Revises the definition of the percentage change of the cost of living to mean the percentage change in the Consumer Price Index for All Urban Consumers for All Items, as follows:
- The applicable percentage change in the cost of living shall be the Consumer Price Index for All Urban Consumers for All Items for the metropolitan area where the residential real property is located, as published by the United States Bureau of Labor Statistics. If a metropolitan area index is not available, the California Consumer Price Index for All Urban Consumers for All Items, as published by the Department of Industrial Relations, shall apply; and
- The percentage change in the cost of living shall be the percentage change in the amount published for the previous April and the April before that. If there is no amount published in April for the applicable location, the percentage change in the
cost of living shall be percentage change in the amount published for the previous March and the March before that.
- Clarifies that the owner of assisted housing development may establish the initial unassisted rental rate for units in the applicable housing development having demonstrated compliance with all applicable state or local law or regulation intended to promote the preservation of assisted housing.