The state’s COVID-19 eviction moratorium expired on September 30, 2021 for everyone in Northern California, with exception of Alameda County. The Alameda County Eviction Moratorium protects tenants from all evictions unless they are being evicted (1) because property owners are withdrawing units from the rental market (under the Ellis Act),(2) the eviction is necessary to comply with a government order, or (3) the eviction is because a tenant is an imminent health or safety risk to other tenants, not including exposure to COVID-19. The Moratorium covers properties in unincorporated areas as well. The Alameda County Eviction Moratorium will continue for 60 days after the local public health emergency is declared over. As of the date of this posting, the local public health emergency is still in effect and there is no indication that it will end any time in the near future. What can you do now to collect rent?
First, you should try to obtain rental assistance for your tenants. Apply for rental assistance as soon as possible and encourage your tenants to apply for rental assistance as well. California’s AB 832 (extension of the COVID-19 Tenant Relief Act) increased the amount of rental assistance paid to landlords from 80% to 100% for rent owed from April 1, 2020 through September 30, 2021 and possibly beyond that date. Landlords were required to send a notice about the extension of the COVID-19 Tenant Relief Act by July 31, 2021 to those residents who had outstanding rental payments as of July 1, 2021. If you did not do so, you should send the notice immediately.
If you have a tenant that has paid rent consistently and did not miss a rental payment until August or September 2021, then there is no harm in serving the notice now. The city of Oakland and the city of Fremont have their own emergency rental assistance programs, so you should file your applications now. Oakland landlords can apply here or call 510-238-6182. Fremont landlords can apply here. You can also apply for state rental assistance through the Housing is Key website or by calling 1-822-430-2122. All of these programs require the cooperation of the tenant so try your best to keep the lines of communication open. If your tenant outright refuses to respond or apply for state rental assistance, make a note of it and keep all your records regarding your communications. Such cases will likely be the only cases that may be able to obtain an eviction for non-payment moving forward. You will also need this information should you decide to file a small claims case for unpaid rent whenever the local moratorium expires in Alameda County.
It is also important to note that AB 832 and the local moratoriums do not forgive COVID-19 rental debt. Instead they protect tenants from eviction for rent that became due between March 1, 2020 and September 30, 2021. Tenants are still liable for the the unpaid rent. Landlords may want to consider filing small claims actions for unpaid rent. Effective November 1, 2021 through September 30, 2025, actions over the usual limit of $10,000 may be brought in small claims court to collect COVID-19 rental debt. Code of Civil Procedure Section 116.223(b)(1). Former limits on the number of small claims cases that can be brought in a calendar year will be temporarily suspended to allow landlords to collect COVID-19 rental debt. Small claims court may prove to be a cost- effective method of obtaining a judgment for unpaid rent. How long such cases may take to move through the system is difficult to predict until we start to see it in practice. One of the main differences between small claims court and regular civil court is that attorneys may not appear on behalf of parties in a small claims action. The landlord and the tenant will appear and present their cases to a small claims judge. The judge has discretion to reduce the unpaid rent amount owed to a landlord if the landlord refused to cooperate with applying for emergency rental assistance programs and the tenant meets the eligibility requirements for such funding. Code of Civil Procedure § 871.10(b).
In fact, the landlord must also attach to the complaint documentation that the landlord made “a good faith effort to investigate whether governmental rental assistance is available to the tenant” and thereafter sought the assistance for the tenant or cooperated with the tenant’s efforts to apply for assistance. Code of Civil Procedure 871.10(a). Landlords should apply for rental assistance now if they decide to file a small claims action on November 1, 2021 or afterwards. Code of Civil Procedure §116.223(b)(2) states that the court shall reduce the damages awarded for any amount of COVID-19 rental debt sought by payments made to the landlord to satisfy the COVID-19 rental debt, including payments by the tenant, rental assistance programs or another third party. This means that if a tenant appears in court and informs a judge that their application is pending, the landlord likely will not prevail (and should ask the court to continue the hearing to a date after the program decides whether the tenant qualifies).
What can you do with your money judgment? California allows the judgment to last 10 years and judgments can be renewed for an additional 10 years if the Landlord creditor renews it in a timely manner. When judgments are renewed the interest that has accrued will be added to the principal amount owed. Landlords might consider using the judgment as a bargaining tool in the negotiation of a possible “cash for keys” or buyout agreement with their tenant. (Of course, before discussing a possible buyout agreement with tenants, landlords are required to provide the tenant with disclosures of tenant rights such as the right not to enter into a buyout agreement and the right to consult an attorney.) Tenants’ rights and required disclosures are different for each county, so landlords are encouraged to consult with an attorney prior to discussing the topic with their tenants. As before the pandemic, buyouts continue to be an effective tool to resolve disputes and safely conclude the landlord-tenant relationship, with the landlord recovering possession of the rental unit.
The attorneys at Zacks, Freedman & Patterson can assist you navigate eviction moratoria and other real estate matters. Contact us at your convenience to request a consultation.
Neither this website nor this post are intended to create an attorney-client relationship.