COVID Eviction

Know Your Rights

This section explains your rights under the many laws in place, which address evictions in 2020 during the COVID pandemic and related orders and laws. Even if you are not being evicted for nonpayment of rent, many of these circumstances directly apply to you. You should also watch the video on this subject available at https://caltenantlaw.com/covid-evictions-help and download the related paperwork.

The Problem

The situation is that due to the COVID-19 pandemic, the government, at all levels, responded with laws, orders and rules, adding to the statutes and case law, which already existed. Recognizing that 2% or so of the population could die from exposure to this virus, the economy was shut down. “Shelter at Home” was the euphemism for the house arrest that tenants were required to obey. Business closures, or severe restrictions on their operation, were imposed. Schools were closed, forcing parents and others to care for those children even if they had been able to work otherwise. For those who got sick, staying home in quarantine was required, and others who had to care for the sick were also unable to work. The economy went into a coma.

Millions of tenants were unable to earn an income, or suffered a reduced income, as a result of those laws and circumstances. Even after the “state of emergency” is declared over, many tenants will find that their employer has gone out of business, or that their hours are severely reduced, because the economy has fallen into the deepest depression since 1929. In a nutshell, since you were unable to earn an income due to COVID and the related governmental orders, you can’t pay the rent through no fault of your own. You may also have other types of disputes which turned into eviction, but you are caught up in the legal and economic fiasco in the wake of this crisis.

Meanwhile, the landlords want their rent. They want to evict you, perhaps only as an excuse to oust a rent-controlled tenant and jack up the rent. Prior to COVID, landlords were able to horribly bully tenants into submission with threats of eviction. However, as a result of COVID and related developments, the whole landlord-tenant world has turned upside down.

The Solution

In 1872, California enacted its first laws. Among them was Civil Code Section 1511, which excuses your failure to pay rent. You don’t have to pay rent, so you can’t be evicted for not paying. It’s that simple. California borrowed this law from other States, all of which had just been through the Civil War, and had experienced typhoid fever and small pox epidemics, with governmental responses that interfered with contracts. The solution to such widespread, catastrophic circumstances was to excuse performance of any affected contracts. It was invoked during the two world wars. This is the third time.

Section 1511 applies to all contracts, not just rentals. If there is a superhuman force [like COVID] or a governmental action [like preventing income], Section 1511 protects you as the innocent victim. The patchwork of ordinances enacted by cities [https://caltenantlaw.com/special-covid-ordinances] and “executive orders” pale in comparison to Section 1511, and confuse the situation. Some laws require repayment within some time, or notice by a deadline, or an agreed repayment schedule, without which you have no protection. Section 1511 requires none of that, and excuses your failure to pay on the schedule you agreed if you are still unable to pay that back amount due to the COVID situation.

Ironically, the result of this flurry of COVID orders and laws was more chaos:

• Depending on your city or region, the rules vary from weak and mild regulation to harsh and even criminal prosecution for landlords evicting their tenants for nonpayment due to COVID.
• The Governor’s Executive Order of March 27, 2020 did not give more time to pay rent due to COVID, as one would have expected, but only 60 more days to file a response to the UD complaint for not paying within 3 days.
• Due to COVID exposure risks, the courts all went into hibernation for over 3 months, creating an enormous backlog of cases, which will take years to catch up.
• Realizing COVID evictions could break the legal system, the courts attempted to postpone eviction filings by an Emergency Rule until 90 days after the Governor announces the end of the emergency, to help the court sort out the backlogged cases.
• But that Emergency Rule only prevented the issue of the UD summons, not the filing of a UD itself, so that some landlords are filing the UD, handing it to the tenants to negotiate with a “gun to their head.”
• Even the helpful ordinances that try to keep the peace refer vaguely to tenants providing “proof” of their inability to pay, without saying what that is, and where there may be none except what the tenant claims, like being sick with a mild case of COVID or taking care of a school child.
• Some ordinances require that written notice to the landlord and other information must be done before the rent is due, when there was no publicity to the tenants to tell them that this law existed.
• Some ordinances require the tenants catch up on the rent within some time, like 2 months or a year, when the tenant may use their entire income just covering the current rent and necessities, with nothing left to pay any back amount at all.
• Some ordinances require a repayment schedule. The tenant only avoids eviction, being forced to commit “false promise fraud” by promising what they don’t know they will be able to do.
• The repayment plan for tenants who can’t pay the huge amount by the ordinance deadline, face a UD because their post-COVID income is lower, the employer folded, or their regular pay was not enough to have any money left over to pay any back amount.
• None of these ordinances supersedes Civil Code Section 1511, which requires no proof, no payment schedule, no deadline to take action, no specially worded notices, but only the tenant’s claim of inability to pay. The ordinances confuse the law. Tenants don’t need the ordinances, but are led to believe that they have no rights because they didn’t jump through the hoops.
• Landlords who served eviction notices during the Emergency can’t enforce it by a UD until 3 months later. Their own lawyer tells them it’s going to be a while, and they get desperate.
• By the eviction notice, the landlord ironically loses all control, because the lease is gone. The tenants can do whatever they want, including subleasing, having pets, changing the locks, etc., while paying no rent. There is no more lease to break, no more punishment than already started.
• You could actually move out, sublease the place to someone else, have that income, and pay none of it to the landlord, but use a small part of it to pay for the ongoing eviction defense.
• The landlords, accustomed to bullying their tenants, will go crazy because their whole plan of attack doesn’t work anymore. The matches are wet. The sword is paper. They are powerless.
• The tsunami of UD cases filed in the Fall of 2020 will exacerbate the backlogged cases already choking the courts. UD hearings and trials postponed to months ahead will make properly defended cases take years, not weeks.
• Even evictions based upon other grounds, like lease expiration, violation of a lease term, or foreclosure, will be caught up in the total delay of eviction cases, lasting years without paying.
• Desperate landlords, whose iron fist domination of their tenants pre-COVID, will find their brutal tactics leading to their own foreclosure of the property, particularly as more and more tenants just stop paying rent, suing the landlord, and reporting defects to the Building and Health Departments.
• Desperate landlords may try any number of illegal tactics to get the tenants out, like terminating utilities, threatening the tenants, accusing the tenants of crimes, or even physical violence.

Conclusion

The landlord’s threats of eviction are hollow, because it will take a long time for a well-defended case to be completed, and you will have a strong defense that the jury can relate to. You may have other defenses beyond the COVID situation, as well. The solution to this fiasco is that you fight the UD, and after winning the UD, you sue the landlord and his lawyer for malicious prosecution, as well as any other claims you may have. When you win the UD, you owe no “rent” because the landlord tore up the lease. You owe no “damages” (the rental value while fighting the case), because you did not unlawfully detain. Unless and until you agree to re-rent the place, the landlord can only start another long, expensive and fruitless UD based on a 60-day notice, if even that is allowed.

Yet another silver lining to the COVID cloud is the likely exodus of people from the city, raising the vacancy rate of apartments and thereby lowering the rents. For 3 months, many people have had to work from home, and now have come to love tele-commuting. Their employer can downsize office space and reduce overhead. If tenants paying exorbitant rent for an apartment near work can now live anywhere, they will leave the city and buy a nice home in the country. When the vacancy rate increases, landlords panic because they have to lower their rents to fill the vacancies, and fix things to keep their tenants happy. Wouldn’t that be something?! We haven’t seen that in 50 years.

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