As we continue to adjust to the “new normal” of a world battling the Coronavirus pandemic, previously meaningless words and phrases like the “curve,” “social distancing,” or “shelter in place” have become everyday vernacular.  New directives continue to be issued that impact our daily lives and add to an already confusing landscape of do’s and don’ts.  While good intentioned, the order has resulted in sudden, unanticipated changes in the way businesses can operate, if they can continue to operate at all.  This has caused businesses, and the individuals they employ or once employed, to experience severe financial stress with no clear end in sight.

As a result, residential and commercial tenants experiencing Coronavirus-induced financial pressures are asking themselves not only how they will be able to pay rent this month, but for the foreseeable future.  In response, state and local leaders in California have raced to enact legislation aimed at alleviating the enormous anxiety and stress felt by residential and commercial tenants as a result of this pandemic.  Additionally, most recently, the Judicial Council of California adopted 11 categories of COVID-19 emergency rules, one of which suspends nearly all evictions in California.

While the passage of these orders and rules was a good first step, a sufficient understanding of what they mean is a necessary next step. 

This three-part article, originally posted on April 10, 2020 and updated here to reflect changes over the past four months, aims to provide information for landlords and tenants alike with respect to rental obligations and evictions in: California; the City of San Diego; and how the Courts are similarly addressing these issues. 

Statewide California Eviction Moratorium

First, on March 16, 2020, Governor Newsom issued Executive Order N-28-20, which was essentially a nudge to local municipalities that they can (and should) enact their own eviction and/or rent moratoriums for tenants that are unable to pay rent because of COVID-19.  This Order, however, would pave the groundwork for local cities and towns across the state to institute their own eviction protections.

In just a week’s time, the landscape continued to shift; namely, California issued its statewide Stay At Home Order and many national and state banks and credit unions agreed, and continue to agree, to mortgage payment deferments or assistance for business and homeowners.  This shift enabled further action by Governor Newsom in the context of rent and evictions.

On March 27, 2020, Governor Newsom added his necessary first boost to his prior eviction order and issued Executive Order N-37-20.  The Order prohibited landlords from evicting residential tenants for nonpayment of rent caused by COVID-19 and prohibited enforcement of eviction orders by law enforcement or courts.  This protection only lasted through May 31, 2020 and the Order did not apply to commercial leases. 

In the time between Executive Order N-37-20 being issued and its expiration at the end of May, hundreds of local municipalities across California began to utilize the power entrusted to them by Governor Newsom (via his first Executive Order N-28-20) and instituted their own eviction moratoriums, often applicable to both residential and commercial leases.  However, the ability of local municipalities to afford tenants protection from eviction was slated to expire on May 31, 2020, pursuant to Executive Order N-28-20, Paragraph 2.  In other words, local eviction moratoriums would not be able to last into June.

With California residents confronted with a looming expiration of their eviction protections, Governor Newsom first issued Executive Order N-66-20 on May 29, 2020 (extending the timeframe 60 days to July 28, 2020); and then Executive Order N-71-20 on June 30, 2020, which extended the timeframe through September 30, 2020.  As a result, local governments and municipalities were given the power to extend their eviction moratoriums through September.

Assuming a tenant’s local city, town or municipality elects to extend eviction moratorium, there are still requirements that tenants must meet in order to be protected under Governor Newsom’s Order(s).  Specifically, unless a local ordinance specifies otherwise, a tenant will not be protected if they do not abide by the following requirements:

1. Prior to March 27, 2020, the tenant paid rent to the landlord pursuant to the lease agreement.
2. The tenant notified the landlord in writing before the rent is due, or within a reasonable period of time afterwards not to exceed seven days, that the tenant needs to delay all or some payment of the rent because of an inability to pay the full amount due to reasons related to COVID-19 (examples of reasons found in the Order);
3. The tenant must retain verifiable documentation explaining the tenant’s changed financial circumstances to support the tenant’s assertion of an inability to pay.  The tenant is not required to submit the documentation to the landlord at the time of notice, but will be required to provide the landlord with documentation of his/her inability to pay no later than the time of payment of back rent owed.

It is important to note that the unpaid rent is not waived or excused and must still be paid to the landlord once the Order is no longer in effect.  Additionally, subject to local ordinances specifying otherwise, landlords appear to still be allowed to terminate leases for non-payment and other, legal causes (e.g. serve 3-Day Notices To Pay or Quit); but, are simply banned from enforcing any evictions and removing tenants while the Order is in effect. While this ensures that those residential tenants that fall within the Order’s scope will not be physically removed from their homes during the pandemic, it does not alleviate the root problem of being unable to pay rent.  Moreover, the Order does not provide any protection to commercial tenants (i.e. the thousands of businesses struggling to stay afloat.) 

San Diego’s eviction moratorium, on the other hand, goes a bit further, and is addressed here.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this web site or any of the e-mail links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.  

Part 1 and Part 2 of this three-part article, which addresses Governor Newsom’s statewide California eviction moratorium and the City of San Diego, can be found here and here.

The Judicial Council of California’s Emergency Rule 1

On April 6, 2020, the Judicial Council of California adopted 11 categories of COVID-19 emergency rules to assist California courts in a variety of respects, one of which is evictions.  Pursuant to Emergency Rule 1, effective immediately, essentially all evictions and unlawful detainers are suspended.  The rule prohibits any California Court from issuing a summons on any unlawful detainer complaint, as well as entering the default of any tenant in any unlawful detainer action.  There is a narrow exception for actions necessary to “protect public health and safety;” however, this phrase is undefined.  As originally drafted, this Rule was set to remain in place until 90 days after Governor Newsom lifts the California State of Emergency declaration. 

As time ticked by and the pandemic worsened across California, it became quite clear that the California State of Emergency was not going to be lifted any time soon.  As a result, the statewide ban on evictions, pursuant to Emergency Rule 1, was essentially set to be in place indefinitely. Realizing this and reiterating the intent of Emergency Rule 1 to only be temporary, the Judicial Council of California took action to amend Emergency Rule 1.

On August 13, 2020, the Judicial Council voted 19-1 to amend Emergency Rule 1 to end California’s statewide eviction freeze. Pursuant to the Judicial Council’s amendment, the statewide eviction freeze will be lifted as of September 1, 2020.  In voting to amend the eviction ban, California Chief Justice Tani G. Cantil-Sakauye stated, “The duty of the judicial branch is to resolve disputes under the law and not to legislate. I urge our sister branches to act expeditiously to resolve this looming crisis.”

The Judicial Council’s eviction suspension was extraordinarily broad in that it did not limit itself to situations in which commercial or residential tenants are grappling with financial difficulties caused by COVID-19, and, instead, served as a blanket suspension on evictions. For over five months, the Emergency Rule has prevented landlords from taking any legal action against any tenant, regardless of whether the tenant has been affected by COVID-19.  Now, with the passage of the Judicial Council’s Amendment to lift the statewide eviction freeze, California State Courts can now resume all unlawful detainer proceedings that came to a sudden halt in April of 2020 and begin processing all unlawful detainer complaints filed during the eviction freeze.

Similar to Governor Newsom’s eviction Order, the Judicial Council’s rule did not alleviate the root problem of tenants being unable to pay rent.  As noted by the California Chief Justice, the legislature—not the judiciary—have the proper tools to attempt to solve the inevitable eviction crisis, and it will up to the California legislative bodies to craft a solution to afford relief to residential tenants.  One such measure that the State Legislature is considering is AB 1436, which strikes a balance of protecting financially impacted tenants from eviction while also preserving landlords’ rights.

AB 1436 prohibits landlords from evicting tenants that cannot pay rent due to the economic effects of COVID-19. However, the proposed law permits landlords to evict a tenant that is not financially affected by COVID-19 and fails to pay rent, or a tenant that occupies the property unlawfully.  In its current form, AB 1436 satisfies landlords’ interests and concerns and protects tenants that have felt the financial impacts of COVID-19. AB 1436 does not apply to commercial tenancies.   

President Donald Trump’s Executive Order to Ban All Evictions

On August 8, 2020, President Donald Trump signed four separate executive orders, one of which was meant to protect all U.S. renters from eviction (the “Order”). However, the Order does little to achieve its overall purpose as it does not restrict any landlord, commercial or residential, from evicting a tenant.

The Order directs the Secretary of Health and Human Services and the Director of the CDC to evaluate whether halting evictions is “reasonably necessary to prevent the further spread of COVID-19.” The Order also instructs the Secretaries of the Treasury and Housing and Urban Development departments to identify all federal funds that can be used to provide temporary financial assistance to renters that are struggling to pay rent.  The Secretaries of Treasury and Housing and Urban Development are further required to “promote the ability of renters and homeowners to avoid eviction.”

The Order does little to effectuate an instant protection to millions of Americans—and Californians—that are struggling to pay rent. Rather, the Order requires that other federal agencies investigate the problem and determine if it necessary to halt evictions and provide financial relief to renters.  Looking ahead, all renters across the U.S., including California renters, must look to their state legislatures and local municipalities for assistance.

Conclusion & Recommendations

Commercial and residential landlords and tenants are facing an incredibly unique and unparalleled set of circumstances.  The temporary eviction moratoriums at both the state and local levels have been enacted to try and combat not only the financial and economic stresses caused by the COVID-19 pandemic, but also the consequences of such stresses, such as losing one’s home or possession of a business.  It is important to be cognizant of the fact that there are sure to be situations and instances that remain unaddressed, subject to dispute or simply fall within the inevitable grey areas.  Additionally, the landscape will continue to shift and landlords and tenants should continue to look for the most recent updates.   

With that in mind, landlords and tenants should try to be patient with each other and remain organized.  Document as much of the interactions with your tenant or landlord as you can, and preserve all letters, notices, correspondence (e-mails and text messages included) exchanged with your landlord or tenant.  Additionally, both landlords and tenants should understand that tenants will still be responsible for the rent that they are unable to pay on time. The eviction moratoriums do not forgive tenant’s missed rent payment.  Finally, the requirements in the Orders and Ordinance speaking to notice and documentation are the minimum requirements.  There is nothing from preventing a landlord or a tenant from engaging further with one another to try and come to mutual understandings, payment plans, lease addendums or the like and such options should almost always be considered. 

Should you have questions or concerns about your rights or obligations, whether from a landlord or tenant’s perspective, an experienced real estate attorney can help you navigate these issues and the uncertainty that comes along with them.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this web site or any of the e-mail links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.