Newsom Signs AB 3088 Into Law: Extends Protections Against Evictions
In early April 2020, the Judicial Council enacted an emergency eviction ban as Temporary Emergency Rule Number 1 to help stem an expected deluge of eviction proceedings due to nonpayment of rent caused by the financial effects of the COVID-19 pandemic. On August 13, the Judicial Council voted to end its statewide moratorium on evictions effective September 1. The Judicial Council’s elimination of its unlawful detainer moratorium forced the Legislature to take urgent action at the end of the 2020 legislative session to forestall likely unlawful detainer litigation beginning in September. If the Judicial Council’s emergency rule were to sunset prior to enactment of a legislative solution, then eviction proceedings would be allowed to commence immediately, except in cities and counties that enacted their own moratoriums.
Although numerous bills were considered, AB 3088 emerged as the primary legislative response after negotiations between the Governor, legislators, apartment owners and tenant advocates. AB 3088 took effect immediately upon the Governor’s signature on August 31. The bill is not considered to be a long-term fix to the COVID-19 related rental problem, but it does provide the Legislature with another five months to come up with a longer term solution.
Impact on Tenants
AB 3088 extends eviction protections to residential tenants who declare to their landlords, via written notice under penalty of perjury, that they have a financial hardship related to COVID-19. Hardships can range from loss of income, increased work expenses, or increased health care, child care and family care expenses caused by COVID-19. The bill protects a wide range of tenants of apartments, single family homes, duplexes, mobile homes and accessory dwelling units. Tenants who timely send their landlord a hardship declaration cannot be evicted for failing to pay rent that was due between March and August of 2020.
In addition, tenants who send the hardship declaration cannot be evicted for failing to pay rent due between September 2020 and January 2021, provided that the tenants pay at least 25% of the rent due during that period. Higher income tenants (earning $100,000/year or 130% of area median income) must provide documentation supporting their claim of hardship to be entitled to the eviction ban. It is important to note that unpaid rent is not forgiven by the legislation and remains owed to landlords. The rent can be collected as consumer debt in small claims court beginning March 1, 2021.
Impact on Landlords
If landlords want to pursue evictions against residential tenants who are behind in their rent payments, landlords will need to send notices containing a statutory explanation of tenants’ rights under the new law. Landlords also must provide tenants with hardship declaration forms that are printed in the same language used in the lease. Tenants have 15 days to complete and send the declarations to their landlords. On October 5, 2020, courts can resume issuing summons in unlawful detainer actions and can continue processing those actions.
The new law allows landlords to pursue unlawful detainer actions in a variety of circumstances, including actions against nonresidential tenants, evictions for lease defaults other than nonpayment of rent, evictions for missed rent payments prior to March 2020, and evictions for nonpayment of rent unrelated to COVID-19. Landlords are prohibited from evicting a tenant for a reason other than nonpayment of rent in retaliation for having unpaid COVID-19 rental debt. AB 3088 also penalizes landlords up to $2,500 for resorting to self-help to evict a tenant, such as locking the tenant out, throwing personal property out onto the curb, or shutting off utilities, rather than going through the required court process.
Impact on Local Eviction Laws
AB 3088 does not preempt existing eviction moratoriums by local governments, which remain in place until they expire. However, new local eviction moratoriums passed after August 19, 2020 cannot take effect until February 1, 2021, and ordinances that expire prior to February 1 cannot be extended until that date. Further, if local ordinances establish a repayment period, they must require that repayments begin on or before March 1, 2021.
Impact on Commercial Evictions
AB 3088 does not apply to commercial unlawful detainers, meaning that commercial evictions can commence beginning September 2, 2020. However, locally enacted moratoriums may provide an extra layer of protection for certain commercial tenants. For example, the City of Los Angeles’ eviction moratorium, which does not expire until three months after the lifting of the local COVID-19 emergency period, prohibits evictions for commercial tenants unable to pay rent due to the COVID-19 pandemic. Yet, in Los Angeles, as in many California cities and counties, emergency tenant protection ordinances that apply to commercial evictions are generally limited to small businesses. Jurisdictions which have enacted similar moratoriums include the cities of Oakland, San Francisco and San Diego, as well as Alameda, Santa Clara, Los Angeles and San Diego counties. The terms of the various 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 of the details of these ordinances.
In addition, some California state courts have adopted local rules prohibiting all unlawful detainer matters, including those involving commercial tenancies. For example, the Alameda County Superior Court issued a stay on evictions on March 16, 2020, and has extended the stay to December 31, 2020. Similar stays or restrictions on unlawful detainer actions have been put in place by several other local courts across California.
Impact on Advice and Counsel
AB 3088’s requirements are complex and are likely to cause confusion for landlords, tenants and courts. This complex, albeit temporary, set of rules relating to the eviction process and related legal proceedings in the COVID-19 environment will be subject to interpretation by courts and will continue to change. Landlords, tenants and their counsel need to precisely follow all statutorily required procedures and stay abreast of potential future developments in the law.