By Anthony Castillon-Mendoza,
Attorney, Noland, Hamerly, Etienne & Hoss
As Published by the Salinas Valley Business Journal, April 2021
The question every landlord wants answered: can you evict someone during COVID? Yes, but it depends. The California Legislature passed the Tenant Protection Act of 2019. Then in 2020, the COVID-19 pandemic brought on a new law, the COVID-19 Tenant Relief Act. The Centers for Disease Control and Prevention issued its eviction moratorium, effectively eliminating all evictions, based on the nonpayment of rent, which was extended to March 31, 2021. In January, California’s SB-91 extended the COVID-19 Tenant Relief Act to July 1, 2021. It is understandable for landlords to be confused and wonder whether evictions are possible or if landlords should wait until this pandemic is over before evicting anyone.
The quickest answer to whether evictions are possible, yes. However, they are tricky and some strategic decisions must be made early in the process. Evictions based on the nonpayment of rent are difficult. A 15-day notice to pay rent or quit must be issued to defaulting tenants, including statutory language which must be copied verbatim from the COVID-19 Tenant Relief Act, in no less than 12-point font. However, the language and additional notices, depend on the months for which the tenant owes rent. Also, when serving a 15-day notice, landlords must also attach a declaration of COVID-19 related financial distress. If the owed rent is for months prior to August 31, 2020, should the tenant sign and return the declaration, under the COVID-19 Tenant Relief Act the tenant cannot be found in default. For owed rent for months after September 1, 2020, if the tenant signs and returns the declaration to the landlord and pays 25% of owed rent, the landlord may not initiate an unlawful detainer action, based on that owed remaining rent, now or in the future.
With all that being said, if a tenant is not paying rent, the law strongly protects them during this pandemic. However, other evictions, such as those based on breaches of the lease, committing nuisance, and committing waste, are still viable. Furthermore, terminating a month-to-month lease for a no-fault just cause, such as removing the unit from the rental market, for the most part, remains unaffected. Despite this, landlords who wish to evict tenants must tread very carefully. While an eviction may not be based on the nonpayment of rent, landlords should expect tenants to assert new defenses created by the COVID-19 Tenant Relief Act, specifically retaliation applied to COVID-19 rental debt.
Retaliation is normally reserved for those cases where a landlord attempts to evict a tenant based upon a protected characteristic such as race, religion, national origin, and sexual orientation. However, tenants may now allege, and must prove, their landlord actually is evicting them because of their failure to pay their COVID-19 rental debt. Should the tenant prevail, the landlord faces potential punitive damages and other costs.
Ultimately, the landscape of eviction law has drastically changed over the past few years. With the COVID-19 pandemic, eviction law has now become more technical, strict, and simply put, tricky. Each case and each eviction must be evaluated individually with a careful strategy tailored to the facts of each case, or else you run the risk of incurring civil and criminal penalties. So to all landlords asking, “Is it possible to evict tenants during COVID?” the answer is yes, it is possible. But landlords are strongly urged to seek legal advice before initiating any eviction action.
This article is intended to address topics of general interest and should not be construed as legal advice.
© 2021 Noland, Hamerly, Etienne & Hoss