Question 1: What is the latest status of the landlord’s right to require the tenant to pay rent or move out during the COVID-19 crisis? What about other grounds to terminate a tenancy?
Answer 1: As discussed in last month’s article in some detail, for all of California, evictions for non-payment of rent are extremely limited, based on the Executive Orders N-28-20, issued March 16, N-37-20 issued March 27, and N-66-20, issued May 29, by the Governor. However, the state wide Governor’s Orders are also not exceedingly clear.
Those orders provide the baseline of tenant protections related to evictions for non-payment of rent. N-28-20, issued March 16, gave local authorities the legal right to suspend evictions for non-payment related to Covid 19, AND ‘suspended’ all unlawful detainer actions, but ‘only to the extent of the limitation imposed by local government order’. N-28-20 was to expire May 31.
N-37-20, issued March 27, extended the unlawful detainer tenant’s response date for any UD served during the period of the Order to 60 days from 5 days, if the tenant was current in rent prior to March 27 and can document that the non-payment is related to Covid-19’s impact. It also ordered that no Writ of possession (the document the Sheriff requires in order to carry out an eviction) shall issue while the Order is in effect for the protected category of NPR evictions. N-37-20 was to expire May 31.
Executive Order N-66-20, issued May 29, extended the timeframe for the protections set forth in Executive Order N-28-20, for an additional 60 days from the date of the Order (so, the extended period runs to July 28).
The protections only apply if the tenant was current with rent prior to the date of the Order N-28-20 (March 27), notified the landlord within seven days of the rental due date of the inability and reason for non-payment, and can document that the reason for nonpayment is based on the impact of the virus on the tenant’s economic situation. And it appears the standing State Orders do not themselves impede evictions after May 31, but extend until July 28 the authority of local governments to impose eviction restrictions.
That leads to a review of the status of the related court, county and city issued eviction protections or moratoria. A complete review of those multiple provisions is beyond the scope of this response, but a review of the most prominent confirm that in most cases, evictions are stayed for any reason “except when the tenant poses an imminent threat to the health or safety of other occupants of the property.”
Most ordinances also will prohibit later evictions for non-payment of rent that accrued during the applicable state of emergency, but allow for collection efforts of such unpaid rent after the grace period (anywhere from 3-12 months) expires. For example, Alameda county passed on May 12 an expanded county-wide ordinance that will not only limit evictions for all reasons (other than the Ellis Act and safety issues as the Oakland version does), but will provide “Tenants twelve (12) months to repay overdue rent, unless the tenant and landlord can come to a mutual repayment agreement. The repayment period will ensure residents have a reasonable amount of time to become current on past rent. The amended moratorium will also create a permanent ban on evictions for this overdue rent, instead making the overdue rent a consumer debt. Without this provision, the county’s eviction moratorium only delays a wave of evictions that will likely result from this crisis. By declaring that rent that becomes overdue during the public health crisis can never be used to evict a resident – landlords retain the ability to pursue the overdue rent as debt via small claims court, a payment plan or garnishing of wages.
So, if that provision passes, any unpaid rent that accrues during the emergency period will not be due for 12 months, and may not be demanded by the three day notice to pay or quit option that is the landlord’s customary route to demand and collect past due rent. Obviously, removing the threat of eviction for failure to pay the rent, even 12 months later, provides a significant protection to the tenant, and a commensurate burden on the owner.
The expiration dates of those local ordinances are not identical and each city’s or county’s provision needs to be checked, usually by an online search of “COVID-19” and the city or county and ‘eviction or unlawful detainer”.
Meanwhile, the California Supreme Court’s order, applicable to all county courts, continues to prohibit new eviction actions (other than those for public health or safety), or defaults in actions that were filed prior to the order, until August 31, 2020, and increasing the time for a trial date, once requested, from 20 days to 60 days.
Question 2: We have a no animal policy and a tenant got a dog without our knowledge. We sent her a warning to remove the dog and she sent back a letter a week later from a therapist saying she needs it for emotional support. The letter from the therapist in San Marcos was dated the day we gave her the warning letter. Dogs have caused us problems in this building and we don’t want them there. Do we have any legal rights to get her to remove the dog or move out or anything else? She is working and does not have financial issues with COVID-19. Thank you
Answer 2: I have written on this issue many times, and the answer is generally the same. The tenant has the right, by state and federal fair housing and disability statutes, to a ‘reasonable accommodation’ of a disability. In the housing situation, it often results in the case you describe below, though the more thoughtful tenant will make the request before getting the pet. If the tenant has a diagnosed disability, and a qualified medical person prescribes an ‘emotional support animal’ as helpful to the tenant’s condition, then the basic requirements of the ‘reasonable accommodation’ have been met.
There are restrictions on the disabled tenant’s ‘right’ to have the pet, which mostly center on the conduct of the pet. But standard lease provisions that prohibit pets will fall before the tenant’s RA right.
It is not completely clear if a tenant who breaches the lease by getting the pet first, and then, when challenged, provides the necessary support for the request, would be subject to eviction for failing to cure the default within the three day period. But providing the medical documentation during that period would ‘cure’ a three-day notice on that issue. The validity of the medical documentation can be challenged, as there are certainly reports of (in some case, less-than-reputable) websites offering such documentation on request, without a personalized visit to the medical professional.
Having just perused one website offering ESA certificates, it is apparent that the COVID-19 pandemic is offering a fertile area for such sites to base their diagnosis of anxiety, which would benefit from an ESA. I did not complete the questionnaire, but anticipate that anyone answering ‘yes’ to simple questions regarding anxiety over the recent pandemic, and other negative emotions, would be immediately offered the appropriate documentation, on a rush basis for a small additional charge. So it is no surprise that your tenant was able to procure the necessary documentation.
To challenge the tenant’s ‘request,’ you would need to consult with a qualified legal professional to evaluate your tenant’s specific facts, and determine whether a challenge would be warranted. However, and particularly in the current ‘hold’ on most evictions, the likelihood of reversing the situation is likely small. But only a qualified legal professional with the complete facts could provide you that determination either way.
Question 3: My property is under statewide rent control and not by a local ordinance (although there are some renter protections in Redwood City). As I understand the law, 30 days’ notice is sufficient for a rent increase less than 10% in any given year. Redwood City’s website has some confusing information that states if a tenant has resided in the apartment for over one year a 60-day notice is required per CA state law. I’ve copied and pasted their information below:
Can a property owner increase a tenant’s rent along with offering the required minimum lease term?
Yes, a property owner can provide notice of a rent increase; however, the notice must be in accordance with California State law. The law specifies that a 30-day notice must be given to tenants that have lived in a unit for less than one year and a 60-day notice must be given to tenants that have lived in a unit more than one year.
Answer 3: The information you received seems to confuse notices of termination of tenancies with rent increases.
A tenant in possession longer than one year is entitled to a 60-day notice of termination (unless Section 8, in which case it’s a 90-day notice). Otherwise, a 30-day notice is required.
Rent increases of 10% or less only require a 30-day notice. However, last year, AB 1110 was passed, which requires 90 days’ notice if a landlord of a residential dwelling with a month-to-month tenancy increases the rent by more than 10% of the amount of the rent charged to a tenant annually. However, under the current states of emergency, there are state-wide restrictions on rent increases over 10%, so use of the 90-day notice will be rare.
Question 4: My tenant paid 40% in April and nothing in May. She sent me a letter but can’t provide any evidence of impact. She applied for relief support from a non-profit Sunnyvale Community Service in early April, but nothing has happened yet. The tenant said she would make a payment on May 20 but did not. When I asked about it, I got call from an agent of Sunnyvale Community Service (SCS) saying I can’t ask tenant directly to pay but have to go through them. Do they have the rights? What is the best way to deal with the situation? Thank you!
Answer 4: I am not familiar with an organization, other than a legal service/attorney that is representing the tenant, notifying a landlord that the landlord must not contact the tenant but must ‘go through’ them. There is a legal rule of professional ethics that states a represented party (meaning a person or entity which has retained legal counsel, in this case, the tenant if the SCS is a licensed attorney service) may not be contacted directly by an attorney for another party. However, that rule does not apply to prohibit a party to a dispute (in this case, you) from contacting the represented party directly (in this case the tenant). While the represented party may expressly advise that such direct contact is ‘prohibited,’ the legal code of ethics would not apply to enforce that request from the tenant. However, it is possible that such direct contact after being requested otherwise could be seen as some form of harassment. All in all, it is probably better to accede to the tenant’s representative’s directive regarding communications, though it would be helpful to know the tenant, in fact, authorized such representation and approves the request of no direct contact.
Question 5: Do you have guidelines for what constitutes normal wear and tear?
Answer 5: Not really. One can look to industry guidelines for the normal lifespan of particular items (think, dishwasher, carpet, etc.); it is generally a commonsense analysis. When in doubt, it is likely a court would grant the tenant the benefit of any doubt, so perhaps use that as an operating guideline.
Question 6: Can you recommend a source to read about landlord obligations for remediation of mold issues reported by a tenant who paid for a professional mold lab analysis?
Answer 6: Generally speaking, the owner has to make a reasonable inquiry as to the existence of harmful mold and, if discovered, retain professional services to remediate the problem. Below are two general mold resource websites that may provide additional guidance.
Question 7: How do SB 329 and SB 222 affect my ability to qualify a tenant based on income? Normally, I require three times the rental income. Say rent is $2,000.00. If they have a voucher for say $1,000.00, can I still require them to have an additional $5,000.00 a month in income?
Answer 7: SB 329, effective January 2020, changed the California Fair Employment and Housing Act, which prohibits housing discrimination, including discrimination based on source of income. “Source of income” means lawful, verifiable income paid directly to a tenant or paid to a representative of a tenant. Existing law specified that the landlord was not considered a representative of a tenant. This was specifically meant to reference Section 8 payments, meaning a landlord could refuse Section 8 without violating the ‘source of income’ provision.
SB 329l instead defines the term to mean verifiable income paid directly to a tenant or to a representative of a tenant, or paid to a housing owner or landlord on behalf of a tenant, including federal, state, or local public assistance and housing subsidies, as specified. This meant Section 8 vouchers would be included in ‘source of income’.
SB 222 was a statement by the Legislature regarding the importance of housing for veterans and it declared that housing discrimination on the basis of veteran or military status is against public policy. The bill also specified that a federal Department of Housing and Urban Development Veterans Affairs Supportive Housing voucher is a source of income.
I believe the proper application of both statutes is that the tenant is entitled to aggregate his or her ‘sources of income’ to meet the owners’ income requirements. So, the answer is yes to your question about being able to require proof of the balance of the standard monthly income requirement.
Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 510-548-7474; email [email protected] or by visiting the website www.bfc-legal.com.