By Arnold L. Gaff, Esq. and T. Robert Finlay, Esq.
Wright, Finlay & Zak, LLP

Normalcy might finally be returning to California. Vaccines are being widely administered, indoor and outdoor activities and sports are resuming, and students are back in school for in person instruction. It would seem life is starting to get back to normal. Well, not quite. Unfortunately, a litany of COVID-related protections still remain in place, especially in the eviction arena. Below is an important rundown of the federal, state and local eviction restrictions on residential properties in California. Of course, in these ever-changing times, please reach out to your counsel prior to initiating any eviction in California.

STEP ONE: REVIEW FEDERAL PROTECTIONS

  1. Federal Mortgage-Based Protections
    If a landlord financed a single family home with an FHA-insured mortgage and has rented out the property, any tenants are likely protected from eviction under federal law. In particular, Fannie Mae and Freddie Mac prohibit the eviction of tenants from properties with Freddie Mac- and Fannie Mae-backed mortgages until at least September 30, This also applies to properties that have been acquired by foreclosure or deed-in-lieu of foreclosure transactions.

    In addition, tenants of multi-family properties with mortgages backed by Fannie Mae or Freddie Mac, who are subject to eviction for nonpayment of rent, must be given 30 days’ notice to vacate before the tenant can be required to leave the unit. The Consumer Financial Protection Bureau maintains a detailed explanation of all the federal eviction bans.
  2. Federal CDC Temporary Eviction Halt
    The Centers for Disease Control and Prevention (CDC) had issued a nationwide halt on all evictions of qualified residential tenants (“National Moratorium”) (86 Fed. Reg. 43244 (2021). However, the CDC’s National Moratorium is no longer an issue for owners, landlords and homeowners, as the U.S. Supreme Court invalidated the National Moratorium on August 26, 2021, on the basis that the CDC had exceeded its authority in issuing it.

    However, California’s statewide and local eviction bans (discussed below) generally provide greater protections for residential tenants experiencing COVID-19 financial distress than the National Moratorium ever did. So, while the national eviction landscape has received some much needed clarity, the state-level eviction obstacles in California have not changed.

STEP TWO: REVIEW CALIFORNIA STATE PROTECTIONS

  1. California State Eviction Moratorium
    California’s current statewide eviction moratorium (the “CA Eviction Moratorium”) is strong but very narrow. It prohibits residential evictions for failure to pay rent due to COVID-19, but it requires tenants to timely submit a hardship declaration to gain protected status.1 However, the CA Eviction Moratorium also requires residential owners to provide tenants with specific notices, a blank form declaration, and sufficient response time prior to taking any action. The CA Eviction Moratorium is currently set to expire on September 30, 2021. It is not expected to be further extended, but we will not know for sure until it happens. In particular, the CA Eviction Moratorium was created and then extended through a series of laws intending to restrict an owner’s ability to evict tenants for the non-payment of rent.
    • AB 3088 – In September 2020, the California Legislature passed the California COVID-19 Tenant Relief Act of 2020 (CTRA), which prevented owners from evicting certain qualified residential tenants. In particular, tenants who timely return a completed COVID hardship declaration cannot be evicted for failing to pay rent due between March 2020 and August 2020. These same tenants can also not be evicted for failing to pay rent due between September 2020 and January 2021 as long as they provide the COVID declaration and paid at least 25% of the rent due during that later period. However, the 25% rent can be paid in a lump sum on or before January 31, 2021.
    • SB 91 – On January 28, 2021, just days before CTRA was set to expire, the California Legislature passed Senate Bill No. 91 COVID-19 Relief: Tenancy and Federal Rental Assistance, which extended CTRA protections to June 30, 2021, and also added in Federal stimulus money for limited housing assistance.
    • AB 832 – Effective June 30, 2021, the California legislature passed AB 832 (the “Rental Housing Recovery Act”), which again extended AB 3088 and the CA Eviction Moratorium through September 30, 2021 and permits landlords to be reimbursed 100% of unpaid rent incurred by qualifying tenants between April 1, 2021 and September 30, 2021 through an application process.

In short, the CA Eviction Moratorium does not prohibit residential evictions for any reason other than the failure to pay rent due to COVID, and even this eviction is permitted if the tenant fails to return the required COVID hardship declaration within 15 business days of receiving it along with the required notices from the owner. However, if the declaration is timely returned, the owner must wait until at least October 1, 2021 to evict unless there are any alternative (non-payment) grounds to evict.

  1. Tenant Protection Act of 2019 (“TPA”)
    A second state law eviction hurdle that must be considered and cleared by residential owners in California is the Tenant Protection Act of 2019 (“TPA”), which applies to certain qualified residential tenants and occupants. In addition to limiting rent increases, the TPA also requires an owner to have a “just cause” reason to terminate a tenancy if generally: (1) the tenants have lived in the unit for at least 12 months, (2) the unit is over 15 years, (3) the type of unit is not exempt, and (4) there are not stricter just cause requirements at the local level. The TPA includes an exhaustive list of “just cause” grounds, which generally involve issues such as non-payment of rent, taking the property off the rental market, moving a family member of the owner into the property, unlawful activity, breach of other lease terms, etc. Please review the statute or reach out to the author for a full list of the “just cause” grounds.

    As a side note, the TPA can be a real headache for those who recently purchased occupied property via foreclosure, as they are generally required to honor the terms of any prior bona fide lease agreements under applicable California law. In other words, if the TPA applies, while the new owner would not need to worry about the CA Eviction Moratorium, it must still find a just cause basis to evict. And if the only viable option is to collect rent and proceed in the event of default, any subsequent eviction on that basis would likely be subject to the CA Eviction Moratorium, which would include all the notice requirements and associated impediments. For this reason, it is important to determine when and if the TPA applies while considering how to proceed, especially while the CA Eviction Moratorium remains in effect.

STEP THREE: REVIEW LOCAL ORDINANCES

But, wait there’s more! Assuming an owner makes it past the Federal and State restrictions, there are still local eviction restrictions to watch out for. Early in the pandemic, CA Governor Gavin Newsom declared a statewide state of emergency, and used additional emergency orders to permit individual cities and counties to protect residential and commercial tenants suffering COVID-19 related financial hardships. Since Newsom is still California’s Governor (after defeating a recall effort) and the Declaration of State of Emergency still is in place, cities and counties are still free to enact their own eviction restrictions.

Over 150 cities and counties have enacted ordinances banning either residential and/or commercial evictions. While the subsequent CA Eviction Moratorium was intended to replace all these local ordinances (with respect to residential evictions), it did not and many still remain in effect.

Residential property owners must realize that tenants/occupants may live in towns or counties with unexpired local moratoriums, and these local protections may be broader and/or cover tenants who do not qualify for protection at the state level under the CA Eviction Moratorium. And even more frustratingly, many of these local eviction bans do not even have set expiration dates like the Federal restrictions or the CA Eviction Moratorium. Many are set to expire within a specific amount of time after a particular local government declares an end to the local state of emergency. And lastly, even when the local eviction ban finally lifts, the landlords/owners still need to be aware and comply with any pre-COVID eviction control ordinances, if applicable.

If No Local Ordinance Exists:
If no local eviction moratorium exists, the owner may proceed with a residential eviction action so long as it complies with all applicable state and federal moratoria, as well as the regular eviction control laws of the city and/or county, if applicable.

If a Local Ordinance Exists:
If a local eviction moratorium does exist, it is critical that the ordinance be carefully analyzed. All of the local ordinances are different, and each places different burdens on the owner and/or the tenants. Even the strictest local ordinances/moratoriums do not prohibit an owner from ever proceeding with any eviction under any circumstances.

The majority of the local ordinances require the tenant to be (1) a renter with a bona fide lease agreement, (2) who has suffered some sort of COVID-19 related financial hardship, and (3) who must actively notify the owner in writing that he or she cannot pay rent due to the hardship. In many cases, tenants are also required to document and provide evidence of the alleged financial hardship. And many of the local ordinances do not prohibit owners from serving notices and/or filing eviction actions, as the ordinance simply provides special defenses that tenants must affirmatively raise to use.

A quick review of several local eviction bans governing Los Angeles, San Diego, and Oakland (Alameda Co.) is illuminating.

  1. Los Angeles/Los Angeles County
    The LA County eviction moratorium, which is currently set to end on September 30, 2021 (the same day as the CA Eviction Moratorium), requires the tenant to be proactive by filing a declaration of COVID-19 related financial distress form with their landlord within seven days of when rent became due.

    However, the LA County eviction moratorium goes much further than the CA Eviction Moratorium does in its protection of residential tenants. In addition to protecting tenants for nonpayment for COVID-related reasons, the LA County eviction moratorium protects qualifying renters against nearly all no-cause evictions, and prevents evictions based on nuisance, the denial of entry to a landlord, and even unauthorized occupants or pets (if the housing is needed due to the pandemic).

    While the City of Los Angeles also has an eviction ban in place, it is only effective if the offered protections are stronger than the LA County ban. And in this case, the City moratorium largely mirrors County ban, except that the City moratorium currently lasts through Aug. 1, 2022 – nearly a year longer than the LA County Moratorium or the CA Moratorium are currently scheduled to last.

    In the event the LA County ban is not to be extended past September 30, 2021, the LA City ban would likely still protect all applicable renters within the city limits of Los Angeles. For all the other cities within LA County who have their own rent control ordinances – such as Santa Monica, Beverly Hills, and West Hollywood – their own municipal ordinances would be controlling and would need to be separately assessed and complied within any future eviction action.
  2. San Diego/San Diego County
    The City of San Diego passed an emergency moratorium back in 2020, but it expired on September 30, 2020. More recently, effective May 1, 2021, San Diego County passed its own emergency moratorium on all residential evictions (regardless of duration of tenancy or type of unit) for all those who demonstrate COVID-19 related inabilities to pay rent, unless the tenants represent an imminent health or safety threat. This strict emergency moratorium, which also expressly prohibited owner move-in and rehab exceptions, expired on August 10, 2021. Thus, there is currently no local moratorium preventing a landlord from proceeding with residential evictions in San Diego County, so long as the actions comply with both applicable state and federal statutes and moratoria, as well as the standard Just Cause eviction control laws in effect in San Diego (San Diego Municipal code §98.0730).
  3. Oakland/Alameda County
    Both the City of Oakland and Alameda County allow residential evictions only if there is an immediate health and safety issue or if it is necessary to remove a tenant to comply with a government order. Owners can take their properties off the rental market altogether, but if a property is being sold or foreclosed – or a renter’s lease ends – the tenants still have a right to stay in the property until the moratoriums expire.

    But Oakland’s eviction moratorium is narrower than the Alameda County moratorium. First, it applies only to apartments and houses built before 1996 and excludes people who live with their landlords. Second, it permits tenants who never lost income or gained expenses due to COVID-19 to be evicted for those missed payments as soon as the moratorium ends.

    While both these local ordinances clearly override the less stringent CA Eviction Moratorium, it is unclear which is controlling between the two. While Oakland can opt out of certain parts of the Alameda County moratorium (if Oakland’s policy goes further in protecting tenants), but Oakland has not requested to opt out of any part of Alameda’s policy, and Alameda’s ban is arguably stricter. Thus, while it is likely the Alameda County eviction rules are controlling, it is not certain, and the issue has not yet been decided by the courts.

    Regardless, Alameda’s moratorium is set to outlast the Oakland City ban, since Oakland’s moratorium is set to end whenever the local “state of emergency” related to COVID-19 is lifted, while the Alameda County moratorium will last for 60 days after that – or 60 days after Dec. 31, 2022, whichever comes later.
  4. The Final Obstacle: The Court Clerk
    Assuming an owner can get past all federal, state and local restrictions, it still needs the local court clerk to accept the Unlawful Detainer complaint. We have experienced situations where the court clerk does not understand the subtleties of the various laws and will simply refuse to accept an eviction complaint, believing that all evictions are barred. When that happens, there are tricks that can be employed to get the complaint through the front door and, finally, filed.

In summation, while normalcy may be on the way in California, an owner’s right to evict might be the last place to see it. The complex set of rules relating to the eviction process in the current COVID-19 environment have caused (and will continue to cause) confusion and headaches for owners, tenants and the courts. This is why a new eviction playbook is so important. Owners, landlords, tenants and their counsel need to precisely follow all statutorily required procedures and stay abreast of any potential future developments in the law. If you have any questions regarding the content of this article or a particular eviction, please feel free to contact Arnold Graff at agraff@wrightlegal.net or Robert Finlay at rfinlay@wrightlegal.net.

Disclaimer

The above information is intended for information purposes alone and is not intended as legal advice. Please consult with counsel before taking any steps in reliance on any of the information contained herein.

Endnotes

1) The CA Eviction Moratorium does not apply to commercial unlawful detainers, meaning that commercial evictions can occur. However, locally enacted moratoriums may protect certain commercial tenants. Ordinances vary substantially, as do the respective termination dates for the eviction bans, so determining the procedural and substantive rights of the parties requires careful review.

Arnold L. Graff, Esq. Arnold Graff is the Managing Attorney of Bankruptcy, Unlawful Detainer and Surplus Funds at WFZ’s California Office.

T. Robert Finlay, Esq. Robert Finlay is a founding Partner of WFZ.