Question 1: As always, any updates on the state of the courts and unlawful detainers?
Answer 1: As most readers will know, California again updated its comprehensive state law directed at protecting tenants from eviction for non-payment of rent. Originally passed as AB 3088 in August 2020, updated by SB 91 in January, AB 832 was passed June 28th and essentially extends all the provisions of the earlier versions, set to expire June 30, through September 30th.
As with AB 3088 and SB 91, AB 832 provides the comprehensive procedure and rules regarding nonpayment of rent cases through, at this point, September 30th, 2021. It added additional restrictions on unlawful detainer actions seeking unpaid rent that accrued during the period April 2020 and September 2021. It creates a new law known as the Rental Housing Recovery Act, which imposes similar restrictions on actions seeking rent that comes due after October 1, 2021. As a benefit to the property owner, it also increases the amount of rent reimbursement from the previous 80% cap to 100% of the tenant’s unpaid rent if the tenant qualifies. The details of those changes and additions will be the subject of a pending AOA seminar.
As described in a prior article, arguably the Legislature left it to local jurisdictions to address eviction protections not related to rent payment issues. I say arguably because the language of AB 832, as with SB 91, is open to two competing interpretations. In one (the one I subscribe to) the relevant language seems to make it clear that any local ordinance or measure passed after August 19, 2020 “to protect tenants from eviction is subject to all of the following: Any extension, expansion, renewal, reenactment, or new adoption of a measure, however delineated, that occurs between August 19, 2020, and September 30, 2021, shall have no effect before October 1, 2021.”
To me, this is clear. No local eviction control measures passed after August 19, 2020 can take effect until October 1, 2021.
However, just below that subsection is a provision that local jurisdictions are relying on to pass post-August 19, 2020 eviction protections/restrictions. “(b) This section does not alter a city, county, or city and county’s authority to extend, expand, renew, reenact, or newly adopt an ordinance that requires just cause for termination of a residential tenancy or amend existing ordinances that require just cause for termination of a residential tenancy, consistent with subdivision (g) of Section 1946.2, provided that a provision enacted or amended after August 19, 2020, shall not apply to rental payments that came due between March 1, 2020, and September 30, 2021. (See Code Civil Procedure 1179.05(b).)
The key, I believe, to interpreting these competing sections is the reference in the latter section to Civil Code Section 1946.2(g). In brief, this refers to a provision that was a part of the statewide rent/eviction control law passed in 2019 known as AB 1482. At Civil Code Section 1946.2(g), that statute exempts from 1482’s provisions any property covered by a local rent control law in effect prior to September 1, 2019, or, any local rent and eviction control measure that was enacted after September 1, 2019 that is more protective of tenant rights than AB 1482.
So, it will be up to a judge to pick one of the two competing interpretations. If the Court picks the one I believe is accurate, then, for example, San Francisco’s recently enacted eviction moratorium for all causes other than public health and safety through September 33 would be invalid (at least until October 1). It is obviously a significant issue for the court (and then likely appellate court) to provide clarification. However, by the time that happens, it may be, in effect, moot, as any appellate ruling would likely be issued after September and almost every existing measure will have expired.
Question 2: What is the status of local county eviction moratoriums?
Answer 2: As previously reported here, and subject to the response in Answer 1, various jurisdictions, both City and County, have generated a hodgepodge of pandemic tenant eviction protections, and so an owner’s options with regard to tenants in violation of their lease will depend on the location of the property. One thing that all the local ordinances have in common is an exception to eviction restrictions if the case is based on ‘public health and safety’. In other words, while an owner’s right to move in, or terminate a tenancy for violating subletting provision or similar type lease violations is restricted in these jurisdictions, such as San Francisco and much of the East Bay, if the tenant presents a threat to people or, less clearly, property, courts are allowing those cases to proceed. Other jurisdictions, such as much of the Peninsula, have removed, or allowed to expire, the broader eviction restrictions, limiting most restrictions to the state-based nonpayment of rent rules. So, as was the case pre-Covid, where your property is located will determine to a great extent what actions you can take regarding your tenant.
Below is the status of eviction moratoria in each of the Bay Area counties. But in summary, and with the exception of San Francisco, Alameda and Contra Costa counties, all the Bay Area counties had defaulted to the statewide rules in place until June 30, 2021 (now September 30). In such counties, evictions for ‘good cause’ (e.g., owner-move in, lease breach etc) are allowed. The brief survey below is taken from the respective counties’ websites, the address of which follows the status summary.
San Francisco amended its Administrative Code to extend the COVID-19 based limit on residential evictions, which allows evictions only if based on the non-payment of rent or violence or health and safety issues, from June 30, 2021, to September 30, 2021. A proposal is currently before the board to extend these protections through 2021.
San Mateo was about to issue new eviction protection laws, but withdrew them based on the passage of AB 832. Thus, the county will apply the state law rules to unlawful detainer actions through September 30th.
In anticipation of the state law SB 91 expiring at the end of June, Santa Clara County passed an eviction moratorium for unincorporated areas of the county. The county resolution was passed unanimously by the Board of Supervisors at their June 22nd meeting. The moratorium, which is based on the state law, which was subsequently extended itself, will be in effect on July 1st until September 30th. However, since AB 832 passed, it is likely the county moratorium will be moot.
Alameda County issued a moratorium on most all evictions until February 28th, 2021 or 60 days after the expiration of the local health emergency, whichever is later. The state of emergency remains in place due to HEALTH OFFICER ORDER NO. 21-01. The only exceptions to the eviction prohibition are: 1) if a tenancy creates an imminent threat to public health or safety, 2) if a court or government agency has ordered that the property be vacated, or 3) if the landlord is seeking to permanently remove the property from the rental market.
Through September 30, 2021, a landlord shall not terminate a residential tenancy for any no fault cause for eviction. (b) Through June 30, 2021, a landlord shall not terminate a residential tenancy on the basis of a tenant allowing an unauthorized occupant to live in the dwelling unit, if the occupant is a member of the tenant’s immediate family living in the dwelling unit as a result of the COVID-19 pandemic. (c) Notwithstanding the foregoing, nothing in this section limits a landlord’s ability to terminate a residential tenancy for any of the following reasons: (1) The termination is necessary to protect the landlord’s health or safety or any other tenant’s health or safety. (2) The termination is necessary where the owner or a member of the landlord’s immediate family intends to occupy the residential real property. (3) The termination is to remove the residential real property from the rental market, but only when authorized by Government Code section 7060 et seq.
Similar to Santa Clara County, Marin County, in anticipation of the expiring state law, passed a measure in early June that continues to bar evictions through September for people economically impacted by the coronavirus.
Question 3: I have a tenant who signed the lease and moved in on 04/09/2021. Apparently, some other people are living in the apartment now who are not listed on the lease. It appears he is not living there at all. I have emailed him as well as mailed and posted on the door the Oakland 7 Day Notice to Cease on 05/05/21. The response was that they are his relatives and he will just add them to the lease. I was wondering if I have any legal options?
Answer 3: Under the Oakland eviction control law, referred to as Measure EE, there is a significant difference where the tenant sublets the unit entirely, versus someone who tries to include additional occupants in the unit the tenant is occupying. In the latter case, the tenant must be given, apparently in addition to the ‘pre notice notice’ you have already served, a 14 Day notice to allow the tenant to cure the violation by submitting the required request for approval of additional occupants (which is almost impossible to reject), or move the subtenants out until the tenant can properly submit the request. In either case, however, the tenant has to first request permission to add additional occupants, not just ‘add them to the lease.’ Failure to request approval first is a violation of the lease.
If you are certain that the tenant has done the former, i.e., sublet the entire unit and no longer personally resides there, then I do not believe you are obligated to give him the 14 Day opportunity to cure, but rather may proceed under state law and a three-day notice to quit once the required ‘pre-notice notice’ has expired. However, discussed above, there is currently an eviction moratorium in Alameda County prohibiting evictions of residential tenants for any reason other than ‘public health and safety’ threats. It is unlikely that this tenant would come under that category.
Therefore, while you wait for the moratorium to lift, it would appear the primary issue is whether to accept rent or not. If you are prepared to forgo that rent in the interest of not complicating your right to terminate this tenancy once the right to file an eviction action resumes, that is by far the safest approach. However, if your lease contains the standard ‘anti-waiver’ clause, it would allow you to accept rent FROM THE TENANT, while making it clear that you are not waiving your right to enforce the subletting clause when the courts reopen. You would not establish a tenancy with the occupants by accepting rent from a non-tenant, as long as you notify the tenant and the third party of the provisions of CC 1947.3 below. However, since the occupants are likely not able or willing to sign that declaration, it is likely a moot point, and rejecting or returning the rent, with a written explanation, is your safest course.
However, I would consider sending the tenant another letter explaining that you will enforce the non-sublet clause as soon as the court allows, by serving a three-day notice to cure or quit along with a three-day notice to pay or quit, since you would then be able to demand the unpaid rent as well as possession should he fail to cure both notices. You could then also include the 1947 declaration just in case they want to sign it and return it with the rent.
Civil Code 1947.3
Subject to the limitations below, a landlord or a landlord’s agent shall allow a tenant to pay rent through a third party.
(A) A landlord or landlord’s agent is not required to accept the rent payment tendered by a third party unless the third party has provided to the landlord or landlord’s agent a signed acknowledgment stating that they are not currently a tenant of the premises for which the rent payment is being made and that acceptance of the rent payment does not create a new tenancy with the third party.
(B) Failure by a third party to provide the signed acknowledgment to the landlord or landlord’s agent shall void the obligation of a landlord or landlord’s agent to accept a tenant’s rent tendered by a third party.
(C) The landlord or landlord’s agent may, but is not required to, provide a form acknowledgment to be used by third parties, as provided for in subparagraph (A), provided however that a landlord shall accept as sufficient for compliance with subparagraph (A) an acknowledgment in substantially the following form:
I, [insert name of third party], state as follows:
I am not currently a tenant of the premises located at [insert address of premises].
I acknowledge that acceptance of the rent payment I am offering for the premises does not create a new tenancy.
|(signature of third party) _____||(date)|
(D) A landlord or landlord’s agent may require a signed acknowledgment for each rent payment made by the third party. A landlord or landlord’s agent and the third party may agree that one acknowledgment shall be sufficient for when the third party makes more than one rent payment during a period of time.
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.