Title: Residential Evictions in 2021: January Update
- By: P.J. Van Ert
As 2021 begins, it is still difficult to predict with any accuracy where Covid-19 will take landlord and tenant relations. The federal and state response to the Covid-19 pandemic has proven a complicated area of law for landlords, tenants and the Courts.
Most notably, the COVID-19 Tenant Relief Act of 2020 (“AB 3088”) and the federal eviction moratorium order issued by the Centers for Disease Control ("CDC Order") are the most current laws impacting how landlords proceed and what rights tenants have in this area.
Under AB 3088, all residential properties, now and through February 1, 2021, are subject generally to the “just cause” eviction rules set forth under AB-1482. Most residential evictions cannot go forward under this provision. AB 3088 removed the exemptions available to landlords under “just cause” evictions and AB 1482.
Under AB-1482, residential tenancies fall into two categories, “No Fault” terminations, and “At Fault” termination of tenancy. What follows is an explanation of how AB-3088 has superseded AB 1482 until January 31, 2021.
- “No fault” termination of tenancy is allowed when the tenant has not breached the lease and requires that the landlord pay one month’s rent in relocation assistance or grant the tenant a rent waiver. Under AB 3088, the “no fault” reasons are severely restricted until January 31, 2021 (or later, if the statute is extended) to the following circumstances: (1) substantial remodeling only where it is necessary to maintain compliance required by law governing habitability, or (2) where an owner of a single-family property or condo is in contract to sell to a buyer who will occupy the property. Remember that if a “just cause” reason applies, then under AB 1482, the Landlord must provide notice and relocation assistance.
- “At Fault” termination may be based on the following: (1) non-payment of rent, (2) material violations of the lease, (3) the tenant causes a nuisance or engages in criminal/unlawful activity, (4) failing to allow the owner access to the property, and (5) failing to sign an extension at the end of a lease term.
With the exception of default on rent, the “at fault” termination reasons are all still available as valid grounds for eviction. However, due to Covid-19, landlords must be very careful in pursuing an eviction where any part of the “at fault” reason is tied to the non-payment of rent. As most landlords are aware, tenants now may submit a declaration of hardship due to Covid-19, which fully protects them from any eviction process. The declaration must include the following showings: an individual at or below $99,000, joint at or below $198,000, unable to pay due to financial hardship, efforts to timely pay as much as they can, and to avail themselves of public assistance programs. This protection from the CDC extends to January 31, 2021 and may extend further.
In sum, if one of the two exceptions to just cause does not apply, or the basis for the eviction is other than material violations of the lease or criminal activity/nuisance, a landlord may not be able to proceed with eviction of a residential tenant. If the landlord proceeds with an eviction in violation of the current statutes and orders, they may be subject to severe criminal and civil penalties. Courts have not uniformly applied the law for evictions; some judges are taking the position, even now, that all residential evictions are subject to moratorium. And don’t forget that local governments are also taking actions in this area! For these reasons, landlords should speak with an attorney before proceeding with an eviction.