AB 3088, COVID-19 tenant relief

“If the resident returns the Declaration, you will be unable to evict the resident for non-payment.”

[Editor’s Note: The below is presented for general legal information; specific situations should be addressed to your attorney. If you have questions regarding AACSC’s forms, please contact our office.]

Q: Just when I thought we were through the worst of it, now I hear that Governor Newsom signed AB 3088, the COVID-19 Tenant Relief Act of 2020. Not only that, the CDC has issued an Order. I’ve read several articles about how to comply with this new bill, but am still very confused. Can you clarify it for me? What does it do?

A: AB 3088 limits a housing provider’s ability to evict a resident for non-payment of rent or other financial obligations (“COVID-19 Rental Debt”) that came due or will come due between March 1, 2020, and January 31, 2021, the “Covered Time Period.”

Although it is intended to protect those residents who have experienced “COVID-19 related financial distress,” there are few if any safeguards that would prevent the abuse of these new protections. The new laws create two time periods within the Covered Time Period, and establish different rules for each:
(1) March 1, 2020, through August 31, 2020, is the “Protected Time Period;” and (2) September 1, 2020, through January 31, 2021, is the “Transition Time Period.” Additionally, a “High Income Tenant,” as defined, is subject to certain limitations.

Q: What do Housing Providers need to do know (regarding the above)?

A: On or before September 30, 2020, you were to serve a specific form notice, the “Notice to Tenants Who Have Not Paid One Or More Rental Payments That Came Due From March 1, 2020, Through August 31, 2020” to any tenant who has “not paid one or more rental payments that came due during the Protected Time Period” (March 1, 2020, through August 31, 2020). It can be served by regular U.S. Mail or as you would serve other legal notices.

Q: How do I handle rent that came due during the Protected Time Period (March 1, 2020, through August 31, 2020)?

A: If a resident owes rent that came due during the Protected Time Period, you are required to use a new 15-Day Notice to Pay Rent or Surrender Possession form. This new form replaces the old Three-Day Notice to Pay Rent or Surrender Possession. Note that the 15 days do not include Saturdays, Sundays or other judicial holidays. Note that this new form is only to be used for rent that came due during the Protected Time Period.

Complete the form carefully, as the information contained is a bit different than the old Three-Day Notices. Each installment of rent that came due must be listed separately, along with the date each installment came due. Note also that the new 15-Day Notice includes a Declaration that the tenant must complete and return if the tenant has experienced “COVID-19 Related Financial Distress.”

The resident can return the Declaration to you in many ways. It may be returned to you in person, by mail, or by email if you provide an email address on the Notice. If the resident returns the Declaration, you will be unable to evict the resident for non-payment. Rather, the COVID-19 Rental Debt can be pursued in small claims court, or the general civil court, after March 1, 2021. Note that the small claims court jurisdictional limit will increase to allow the recovery of COVID-19 Rental Debt. The 15-Day Notice contains an optional box to check if you have documentary evidence, i.e., an application, etc., that shows that the resident household made at least 130 percent of the median income for the county in which the premises are located. If you have that evidence, and if you check that box, the resident would be required to return the Declaration along with documentation supporting the claim. Important note: Although the resident is ‘required’ to return the Declaration within the 15-day notice period, there are provisions within the legislation that would allow the resident to return it later, even after an eviction is filed, that would require the court to dismiss the eviction.

Q: How do I handle rent that came due, or will come due, during the Transition Time Period (September 1, 2020, through January 31, 2021)?

A: If a resident owes rent that came due, or will come due, during the Transition Time Period, you are required to use a new 15-Day Notice to Pay Rent or Surrender Possession form. The form is different than the one discussed above, as the form only addresses rent that came due during the Transition Time Period. This new form replaces the old Three-Day Notice to Pay Rent or Surrender Possession. Note that the 15 days do not include Saturdays, Sundays or other judicial holidays.

Complete the form carefully, as the information contained is a bit different than the old Three-Day Notices. Each installment of rent that came due must be listed separately, along with the date each installment came due. Note also that the new 15-Day Notice includes a Declaration that the tenant must complete and return if the tenant has experienced “COVID-19 Related Financial Distress.” The resident can return the Declaration to you in many ways. It may be returned to you in person, by mail, or by email if you provide an email address on the Notice. If the resident returns the Declaration within 15 days and pays you 25 percent of the amount that comes due during the Transition Time Period on or before January 31, 2021, you will be unable to evict the resident for non-payment. Note that the payment is not due now, but on or before January 31, 2021.

As described above, the COVID-19 Rental Debt can be pursued in small claims court, or general civil court, after March 1, 2021. Note that the small claims court jurisdictional limit will increase to allow the recovery of COVID-19 Rental Debt. The 15-Day Notice also contains an optional box to check if you have documentary evidence, i.e., an ap pli cation, etc., that shows that the resident household made at least 130 percent of the median income for the county in which the premises are located. If you have that evidence, and if you check that box, the resident would be required to return the Declaration along with documentation sup porting the claim. Important note: Although the resident is “required” to return the Declaration within the 15-day notice period, there are pro visions within the legislation that would allow the resident to return it later, even after an eviction is filed, that would require the court to dismiss the eviction. If the resident returns the Declaration but fails to pay the 25 percent on or before January 31, 2021, then you may file and pursue an eviction on or after February 1, 2021.

Q: What about “Other Financial Obligations”? How do I handle those?

A: If the resident owes other financial obligations, monetary sums other than base rent, i.e., utility charges, garage rent, late fees, etc., you would proceed as stated above, preparing a separate notice for each Time Period; however, you would use the new 15-Day Notice to Perform Conditions and/or Covenants or Surrender Possession form. Just as you are required to use different forms for each Time Period as described above, there is a different form for each Time Period to demand other financial obligations, one unique form for the Protected Time Period, and another for the Transition Time Period. These forms can be served concurrently with the Notice(s) to Pay Rent or Surrender Possession as appropriate.

Q: Can a housing provider evict for Just Cause?

A: Between now and February 1, 2021, all residential properties, with some very limited exceptions, are subject to the Just Cause requirements of AB 1482. That means even single-family residences, which were previously exempt, are now temporarily covered and require Just Cause prior to termination of the tenancy. The new laws still allow a Lessor to withdraw the rental property from the rental market and allow for termination based upon the owner’s intent to move in a qualified family member. Termination because the Lessor desires to substantially remodel or repair the Premises must now relate to maintaining the habitability of the premises rather than simply performing a renovation. Fixed-term lease expiration, notices of non-renewal, and 30- or 60-day notices that previously did not require just cause, are no longer grounds for termination and will not support the filing of a new eviction.

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 285,000 landlord tenant matters throughout California and has collected over $200,000,000 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.