Rent is due, but you may not have it because you can’t go to work, or your business went under. The landlord wants the rent, but just don’t have it through no fault of your own. The landlord threatens eviction if you don’t pay, rather than reasonably riding out the storm with you. If your only tool is a hammer, everything looks like a nail.
It sounds like impending doom, but it’s not. Get out of victim mode. Learn what to do. CalTenantLaw.com is your lifeboat.
Let’s start with some good news. On March 27, 2020, Governor Newsom issued an executive order [download PDF here] postponing residential evictions for nonpayment of rent attributable to COVID. The order only postpones the time to respond to an unlawful detainer summons served on you for 60 days [i.e. you have 65 days to file a response to the Complaint] and prevents a lockout by the Sheriff if the tenant has complied with the 3 requirements. It DOES NOT STOP EVICTIONS, and the postponement only applies until May 31, 2020. Starting June 1, 2020, these protections don’t exist.
Those requirements are:
(1) that the tenant paid rent previously [it is not clear if this means that the rent was current]
(2) that the tenant NOTIFIES the landlord IN WRITING no later than 7 days after the rent is due that they need to postpone rent payment due to COVID. The valid reasons are (a) unable to work because they, or a household or family member for whom they care, was sick with a suspected or confirmed COVID case, (b) their income was reduced due to COVID or governmental order, OR (c) the tenant needed to care for a child whose school was closed due to COVID. If you do not give that notice, you do not have the protection of this law! Be sure to write that notice now, and send it certified mail!
(3) The tenant has verifiable written proof of the reasons for nonpayment of rent, shown to the landlord when the back-rent is paid [not before]. Termination letters, medical bills, and paystubs are among the suggested forms of proof. [There is no indication in the order of when that back rent would be paid.]
You cannot be evicted without the case first going through court and the landlord getting a judgment for the Sheriff to enforce, even if the landlord threatens otherwise. If the landlord tries to drive you out physically, or by turning off utilities, you call the police, they side with you, and you press charges against the landlord as well as sue the landlord for trying.
Better than that, the courthouses are essentially closed, except for answering the phone (maybe), accepting filing of papers and simple clerical functions; there are no trials or hearings for eviction cases until maybe some time in April. They CAN still file defaults and judgments to lock you out, however, so don’t think you’re safe. You still have to fight the eviction to avoid that.
With the courthouses already having been closed for so long, their backlog is horrendous, so that things that would normally have been heard quickly are set off to the future. That means, if you follow the Game Board and our instructions, you could remain in possession for several months without having to pay rent during that time. My record was 4 ½ years without such a crisis. I will break that.
Adding to the chaos that benefits you is all the landlords trying to evict millions of tenants for nonpayment of rent and other things will flood the courts with their cases, pushing back the time for hearing any given motion or trial even further. The legal system bottlenecks at the courthouse, where the judges only have so much time
to hear matters, so if the judge can only hear 5 matters in a day, 20 matters would have to be spread out into the future. Do the math.
Similarly, the eviction lawyers who can handle the normal flow will be understaffed to handle the onslaught of cases. As they try to get everything done to accommodate the increase, they will be making even more mistakes than they normally do, which we exploit to give you even more time. They will also be unable to handle the high volume of cases they are handed, except as they can get done, by and by. An impatient landlord may have to wait weeks just to get started.
The landlords, faced with this new reality, and who bullied and threatened you if they didn’t get your money, have their hollow threat revealed: if you don’t pay them now, they hope to get you out by Christmas. Worse for them, the banks [so far] want their mortgage payments, and will foreclose if they don’t get their money. Granted, the Congress could require the banks to defer interest to the end of the loan principal, and avoid massive foreclosures and bank bailouts, but without that, the landlords are in a desperate state. Landlords get updated on these situations through their publications, so they will face the prospect of losing their property to the bank if something doesn’t work out for them.
If the bank takes the property in a foreclosure while the landlord is trying to evict you, that eviction stops, and a new one begins with the bank giving you a 90-day notice to leave, followed by yet another lengthy eviction case. Stubborn and greedy as so many landlords are, that scenario is likely to be commonplace. To avoid the hassle, the bank may just pay you to go after all that free time.
Here’s the capper: You are legally excused from eviction for nonpayment of rent under Civil Code 1511 [see below], because of your “temporary impossibility of performance.” The COVID virus, and the government orders, both provide the legal excuse that you need, in addition to the strong “equity” rules that make it unfair for you to be evicted when the government prevented you from earning an income. That means you have a very strong defense against the threatened eviction when it comes to trial. In addition to the many other legal defenses you may have, this COVID defense is likely to be universally accepted by the courts, and you would win the case. As a lawyer, I can’t guarantee any result, but if you were a juror deciding this case, how would you vote? The landlord may just dismiss the case, seeing that you have not been scared into surrender [their primary weapon in evictions].
You COULD and often DO win the case for any number of reasons. Evictions for nonpayment are easiest type of case for tenants to win, even without the COVID defense. There are so many moving parts to break down for the landlord, from charging illegal late fees, failing to provide a habitable place, failing to reimburse you for repairs you made, or even serving a technically defective notice. For all the saber-rattling and bullying the landlords use up to the day of trial, their knees buckle on the courthouse steps and they agree to something you suggest that they scoffed at, before. Bullies are cowards. That’s why they are bullies.
Once you win the case, the tables are turned, and it’s the landlord who is in trouble. By winning the case, you have several benefits. (1) You are not evicted, and you stay there. (2) Since the landlord has terminated your tenancy by the 3-day notice, there is no “rent” to pay after that expiration day, even if you have lived there for several months without paying anything. (3) The landlord has to beg you to reinstate the rental agreement to start paying rent again. Otherwise, you just stay there without an agreement. (4) If the landlord starts a new eviction case based upon a new 3-day notice, it will also fail, because there is no rental agreement upon which to base a claim for rent. (5) Since you won the case [either by judgment or dismissal], you can sue both the landlord and their lawyer for malicious prosecution, in addition to other things heading into six figures. (6) Since you won the case, you can file a motion for attorney fees and court costs incurred in fighting the eviction. (7) Since you won the case, there is no negative credit or blacklisting; for credit purposes, it never happened.
You would still owe a “reasonable” amount for that time you have been in possession, and what was “reasonable” during the COVID storm may be negligible. However, that could not be in an eviction case, which requires a specific amount due, and therefore it would have to be filed in a separate lawsuit that could take years to complete, and compound the landlord’s expenses, which he probably won’t do. He doesn’t want to put good money after bad.
It is possible that the landlord, seeing their own plight, works something out with you. The current “lockdown” [funny they use a prison term in the Land of the Free] may end soon, and your job may reopen so that you will have income again, while the eviction case is pending. That is, if America returns to normal by the end of April, but the landlord has already terminated your tenancy by the 3-day notice to pay or quit, what then?
First, you are in a stronger bargaining position than the landlord. You have income, but the landlord has no rent, while you still stay there. If the eviction case continues, you still stay in possession without paying anything until it concludes. The landlord chose to live by the sword, so he dies by the sword. Time is on your side.
Secondly, since an eviction may prove unsuccessful and will certainly take more time at greater expense while collecting no rent, the “tough guy” approach he first used may yield to bargaining with you, and even begging. You can resolve the dispute by starting a new rental agreement at a lower rate, with all back rent waived, which prohibits eviction except for breach of the lease, requires the landlord to immediately fix anything that needs it, and gives you unlimited rights to repair and deduct from the rent if he doesn’t. He gives you that in exchange for your agreeing not to sue him for trying to evict you. He may not like it, but it’s the lesser of two evils, and you are calling the shots, by that time.
Finally, you may be in a situation where you lost your job, or were laid off, and then the business you worked at went bankrupt or just closed their doors. The new “stimulus package” just enacted may expedite the economic recovery. At least the rich guys will stay rich while the rest of America suffers. In fighting the eviction, you buy the time to make plans, and there may be laws passed and conditions arising that improve things indirectly. If businesses can return to normal, they need employees, and that means jobs, the ability to save up to move, and a new day for you.
Of immediate concern is the displacement of tenants who do get evicted. We have a large homeless population resulting in part from “free market” economics, where those who can’t afford to live anywhere join Les Miserable. If this COVID pandemic succeeds in evicting those who don’t fight their eviction, we will see large roving bands of homeless families, and Martial Law.
Principle among the barriers to a natural solution is the landlord’s power to prevent tenants from having additional occupants. We are not a heartless population. Tenants would invite friends and family to stay with them, if they got evicted, but for fear of being evicted themselves because of the lease provision preventing additional occupants without the landlord’s permission. What’s the big deal? Is the landlord truly concerned about excess wear and tear, or additional water being used? No, it’s landlord greed: they want to exploit the desperation to get more money, a lot more.
What we need is a law which makes it illegal to evict a tenant for having additional occupants, or increasing the rent more than a reasonable amount to cover those costs, like $10 per month. Tenants displaced due to COVID could at least couch-surf for a while, and not join the homeless. Those who are already homeless could escape to their friend’s apartment. For taking our jobs away, it’s the least our government could to do reduce the impact.
We also need the military to convert its empty bases to housing for our homeless vets, even those with drug problems arising from their military service. For all the money that our military gets of our tax dollars, we should insist that the military house those who risked their lives for us, and help get them back on their feet. After all, a homeless person pays no taxes, so investing in their recovery to get them paying income taxes again is a better investment than the stock market can offer.
When Governor Reagan cut the State budget by ordering mental hospitals to release everyone who was not a danger to themselves or others, our homeless population instantly appeared. There are those among us who are mentally and/or physically incapable of functioning in our society, either by birth or accident. There should be a law that requires the hospitals to take these people back in, and at least provide them room and board, so that they are not suffering among the homeless.
In California, tenants are 2/3 of the population, and yet there is scarce protection from landlord abuses. The statewide rent control law was written by landlords, and is a joke. Statewide strong rent control, and eviction protections are badly needed. We don’t have them because tenants as a group do not vote. If we voted like homeowners do, politicians would be tripping over each to promote stronger and stronger laws. But, they don’t, because when they look at the election precinct maps overlaid on the zoning maps, they see that voter registration and voter turnout in the apartment zones is 5%. Then they see the landlords’ political campaign contributions that they need to win, and guess what?
Tenants need to register to vote, and to vote in every election. Even if there is no one good to vote for (and the tenants are truly disenfranchised), at least the numbers are there in the precinct data. Politicians who need to win, to get that extra edge over their opponent, then go for the tenant vote, and include pro-tenant laws in their campaign. From there, it’s an upward spiral as those politicians win, others learn their secret, and the tenant vote becomes an important element in elections. We can do it, but we won’t win the game by staying home.
The primary problem for tenants is urban congestion: square peg in a round hole. There is just not enough room in cities for the people who need to work there. Vacancy rates are low, so rents keep going up because we need a place to live. Freeways are congested, with travel time on a constant “rush hour” eating up gas and our off-time.
Due to COVID, businesses that have turned to letting employees work from home. They may find that they can operate just as well, and even cheaper. The technology exists to displace employees from their cubicle to their home office. Fiber optic cables are cheaper than freeways, and the government has money to resolve other problems.
Employers don’t need the office space, employees are willing to work for less not to commute to work, and tele-commuting becomes the norm. With that, tenants can buy a house in a small town for less than they are paying for rent, and a mass exodus from the cities follows. Vacancy rates drop, as do rents, freeway congestion disappears, and the landlords have to keep their places habitable. It’s not a dream, but an idea that needs promotion. The pendulum needs to swing in the other direction.
The want of performance of an obligation, or of an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate:
1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse; however, the parties may expressly require in a contract that the party relying on the provisions of this paragraph give written notice to the other party or parties, within a reasonable time after the occurrence of the event excusing performance, of an intention to claim an extension of time or of an intention to bring suit or of any other similar or related intent, provided the requirement of such notice is reasonable and just;
2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or,
3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.