05 Nov “We’re All Mad Here”
“The two most important days in your life are the day you were born and the day you found out why.” – Mark Twain
Well, except for the day you found out about AB 3088. On that day you learned …
“We’re all mad here.”
– Cheshire Cat
AB 3088 has mandated landlords not only recognize key dates relating to tenant evictions but memorize the calendar for prohibitions. Any slip up (even an inadvertent one) could cause the landlord to be sanctioned thousands of dollars. So, let’s review the key dates that need to be reviewed and followed.
First, let’s look at the important dates the Governor, state courts and local governments took affecting residential tenancies.
On March 4, 2020, Governor Gavin Newsom proclaimed a state of emergency in response to the COVID-19 pandemic.
Effective April 6, 2020, the California Judicial Council (the policy making body of the California courts) adopted an Emergency Rule temporarily halting evictions. Our courts were prohibited from issuing summons on a complaint for an unlawful detainer nor could they enter a default or a default judgement in order to protect the public health and safety due to the growing COVID-19 pandemic. However, there were minor exceptions to the rule.
On August 14, 2020, the Judicial Council voted to extend these protections through September 1, 2020, to allow the Legislature time to act before the end of the 2019-20 Legislative Session. Note, the Legislature was required to act by August 30, 2020, and the Governor needed to sign the measure into law that would allow most residential tenants to remain in possession from March 1, 2020, through January 31, 2021.
On August 31, 2020, the Governor signed AB 3088.
That bill set into motion requirements that changed multiple laws relating to possession, eviction, rental amounts to be paid, rental amounts to be collected, remedies relating to collection of unpaid rent, minimum time periods to respond to our notices, new tenant rights, and more.
Between August 19, 2020, and January 31, 2021, an ordinance, resolution, regulation or administrative action adopted by a city, county, or city and county that provides any extension, expansion, renewal, reenactment, or adoption of a measure, however delineated, shall not be effective before February 1, 2021. No ordinance may require COVID-19 rental debt to extend beyond March 1, 2022.
Second, let’s turn to the key dates we should memorize due to the passage of AB 3088 (Chiu et. al). The measure would, until February 1, 2025, enact the COVID-19 Tenant Relief Act of 2020. The Act requires any three-day notice that demands payment of rent to now be 15 days when the demand is served on a tenant during the “Covered Period”, and meet certain criteria including, for the first time, an unsigned copy of a declaration of COVID-19-related financial distress which advises the tenant that they will not be evicted for failure to comply with the notice if the tenant simply delivers the signed declaration to the landlord within 15 days. Time periods to remember which have different requirements that owners and managers must follow:
“Covered Time Period” March 1, 2020, and January 31, 2021.
“Protected Time Period” March 1, 2020, and August 31, 2020.
If landlord provides notice demanding payment of rent that came due during the Protected Time Period, the notice must provide the time period in which the tenant may pay the amount due or deliver possession of the property, which shall be no shorter than 15 days, excluding Saturdays, Sundays and other judicial holidays. The notice shall set forth the amount of rent demanded and the date each amount became due. The notice shall advise the tenant that the tenant will not be evicted for failure to comply with the notice, if the tenant delivers a signed declaration of COVID-19-related financial distress to the landlord on or before the date the notice to pay rent or quit or notice to perform covenants or quit expires, in at least 12-point font.
If, however, a tenant who as of September 1, 2020, had not paid one or more rental payments that became due during this time period and a demand for the payment of rent was not made, a different notice was required to be provided to those tenants on or before September 20, 2020. That notice advises the qualifying tenant that the legislature enacted the COVID-19 Tenant Relief Act of 2020 which protects tenants who have experienced COVID-19-related financial distress and provides general direction to that tenant regarding their rights.
Our Association wrote new standard forms for our members to comply with these new legal requirements.
“Transition Time Period” September 1, 2020, and January 31, 2021.
If landlord provides notice demanding payment of rent that came due during the Transition Time Period, the notice must provide the time period in which the tenant may pay the amount due or deliver possession of the property, which shall be no shorter than 15 days, excluding Saturdays, Sundays and other judicial holidays. The notice shall set forth the amount of rent demanded and the date each amount became due. This notice (in 12-point font) shall advise the tenant that the tenant will not be evicted for failure to comply with the notice, if the tenant delivers a signed declaration of COVID-19-related financial distress to the landlord on or before the date the notice to pay rent or quit or notice to perform covenants or quit expires. The notice advises the tenant to that if they are unable to pay the rent that is demanded and have been adversely affected due to COVID-19 that they are to sign and deliver the declaration form that is to be included in this notice within 15 days excluding Saturdays, Sundays and judicial holidays. The notice states that the tenant cannot be evicted for this missed payment as long as the tenant pays at least 25 percent of the total rent that came due for the five-month period starting on September 1, 2020, through January 31, 2021.
Should the tenant pay the owner/agent 25 percent, the decision to proceed to collect the remaining unpaid balance will be complicated.
Other Important Dates to Remember Before October 5, 2020, the court is prohibited from issuing a summons on a complaint AND from entering a default or a default judgment for restitution for unlawful detainer in any action that seeks possession of residential real property and that is based, in whole or in part, on nonpayment of rent or other charges.
Before February 1, 2021, a landlord may not initiate an unlawful detainer action if the action is based, in whole or in part, on nonpayment of rent or other charges during the Covered Time Period.
Before February 1, 2021, if an action is based in whole or in part on a notice served on a tenant for nonpayment of rent or other charges during the Covered Time Period, the court shall dismiss any cause of action based on the notice served.
Before February 1, 2021, the Tenant Relief Act would prohibit a court from finding a tenant guilty of an unlawful detainer, subject to certain exceptions:
• If a tenant was guilty of the unlawful detainer before March 1, 2020.
• The tenant failed to either make payment upon landlord’s demand or provide a declaration of COVID-19-related financial distress form.
• The unlawful detainer action is the result of an at fault or no-fault just cause.
On February 1, 2021, if a tenant has continuously and lawfully occupied a residential real property for twelve (12) months, the owner of the residential real property shall not terminate the tenancy without just cause:
At-fault just cause includes tenant’s failure to execute a written extension or renewal of the lease for an additional term of similar duration with similar provisions, after the landlord makes a written request for demand following a written lease terminated on or after January 1, 2020.
No-fault just cause includes a written agreement by a tenant to a provision for leases entered into on or after July 1, 2020, if the lease allows the owner to terminate the lease if the owner, or their spouse, domestic partner, children, grandchildren, parents or grand parents, unilaterally decides to occupy the residential real property.
On or after February 1, 2021, if an action is based in whole or in part on a notice served on a tenant for nonpayment of rent or other charges during the Covered Period, the court shall dismiss any cause of action based upon the notice served if the tenant, within five (5) days of the court’s order to do so, makes the payment required. (If the fifth day falls on a Saturday, Sunday or judicial holiday, the last day to pay shall be extended to the next court day.)
Until February 1, 2021, any landlord who violates the provisions regarding a tenant who has provided a declaration of COVID-19-related financial distress form may be liable for damages in an amount between $1,000 and $2,500.
Until February 1, 2025, a small claims court has jurisdiction in any action for recovery of COVID-19 rental debt regardless of the amount demanded and would provide that a claim for recovery of a COVID-19 rental debt is exempt from the prohibition on filing more than two (2) small claims actions described in existing law.
Until February 1, 2025, AB 3088 enacts the COVID-19 Tenant Relief Act of 2020 (Tenant Act). On that date, the bill is supposed to “sunset.”
We can promise one thing. Every level of government and interest group concerned about the rental housing industry will be working on another set of legislative remedies within the next two months. We would suggest to be prepared and respond to a new set of legislative measures due to the ongoing COVID-19 pandemic as early as December 6, 2020.
Ron may be reached at [email protected]