COVID Evictions Help

COVID Eviction Protection Law: What to Do

The New Eviction Notices

You may have received a “15-day” eviction Notice including a Declaration to sign, and need to know what to do.  While in a panic, it is tempting to take the bait, which promises to avoid an eviction, but it has a huge downside. Here are the simple explanations of the new State and Federal laws, and Civil Code 1511.

We can provide you with the full 72 pages of the Tenant Relief Act or the 37 pages of Trump’s Moratorium if you wish through the caltenantlaw.com website.   Contrary to what you may have heard, you are probably better off NOT SIGNING the Declarations. Here is how it works:

Options in the Notices

1. For amounts due prior to September 1st, the notice you got gives you 3 weeks (15 court days) to mail or otherwise send in the signed Declaration. You don’t have to pay anything as a condition, nor show any proof of your inability to pay this back amount. If you do sign, you can’t be evicted for nonpayment of that amount, but the landlord can still file a small claims case against you for it, instead.  If you don’t sign and send in the Declaration by the 21-day deadline, the landlord CAN start evicting.

2. As to rents due from September 1 to January 31, there is a different 3-week notice, Declaration and a different process. If you submit that declaration, you don’t have to show proof of any inability to pay (unless you’re “high income”), and you have until January 31, 2021 to pay  only 25% of the total amount due for those months. If you do sign and pay, then you can’t be evicted for nonpayment of the rest, but the landlord can still sue you for the unpaid amount in small claims or regular superior court.

3. You can also use the declaration in the Trump set, a completely different approach, to postpone any nonpayment eviction until 2021, if those statements in that declaration are true.

These notices and declarations are intended to protect you from eviction, but only temporarily and only for nonpayment of rent during the COVID period [3/1/20-1/31/21].

What About the Money?

Civil Code 1511 says you are “excused” from paying the rent, meaning at the very minimum that you are excused from paying now while you are still at reduced income, and at most excused from ever paying it, either legally or in practical terms. Section 1511 is the main defense to COVID-related cases.

These new laws say by signing the declaration, you are only not being evicted for nonpayment. Instead, the landlord can get a huge judgment against you in small claims court. AB 3088 expanded small claims court to cover all landlord’s rent claims, no matter them amount. That makes is easy and cost-effective for the landlord to win against you to get that judgment. That will ruin your credit, allow the landlord to take your car, bank account, household furniture, and other personal property, and garnishee your wages 25%. A few months after signing the declaration, thinking you are “out of the pot,” you will find yourself “into the fire.”

By signing the declaration, you are gambling that you will somehow have the money to pay in the future, while still paying future rent and other necessities. If your pre-COVID income gave you enough to cover current expenses with plenty left, and you are lucky enough to return to that income level post-COVID, then you can probably safely pay the back amount due if you sign this declaration. However, if you were spending almost all of your paycheck covering only current expenses before, or end up like that if and when you return or get a job, what seems like a rescue could turn into a disaster, the darker lining of a dark cloud.  You could file bankruptcy, of course, to wipe out the whole debt, which may not look so bad with a substantial percentage of the nation doing that, but it could affect you in other ways.

To Sign or Not to Sign

You are making this decision, not the landlord.  The landlord is required to give you this choice: to fight the debt as an eviction case or as small claims.  In any conflict, whether war, chess, or litigation, the outcome is largely the product of the circumstances.  If you are playing their game, you lose; if they are playing your game, you win.  In which context are you going to have the best chance of winning, in real terms?   If you watch Peoples Court, Judge Judy, or those types of shows, small claims court is very much like that.  Eviction trials are more like the normal kind of courtroom scene, with the jury and legal formalities.

Beyond that superficial appearance are some significant circumstances that weigh heavily in favor of not signing the AB 3088 State law Declaration, signing the Trump declaration [IF all of that is true], and fighting the eviction head-on, rather than taking your chances in small claims court:

• • Given the millions of eviction cases, and the various technical things that can prolong it, an eviction case could (in the post COVID world) last for many months or even years, whereas a small claims case would be over relatively quickly.
  • If you fight the eviction case instead of submitting the declarations, your “rent” obligation ends when the notice expires, so if you win the eviction case, you owe no back amount; in the small claims situation, you could end up fighting both that case and a new eviction case starting February, 2021, not buying your peace as expected.
  • If you fight the eviction case, once the notice expires, you are free to sublease, change the locks, have a pet, and do all the other things your lease prohibited; whereas if you submit the declaration to postpone a nonpayment eviction, you could still be evicted on other [fake] grounds like breach of lease, while the landlord gets all the back rent in small claims.
  • If you win the eviction case, you can sue the landlord’s lawyer for malicious prosecution, which gives you leverage in negotiating a great settlement when your victory approaches, whereas in small claims court, there is no attorney until the appeal stage.
  • While the eviction case is continuing months on end, you can separately sue the landlord in small claims or regular Superior court for breach of contract, trespass, invasion of privacy, nuisance, retaliation, fraud, etc., getting a judgment against him even before the eviction case gets to trial. In a small claims case, your Defendant’s Claim would be heard at the same trial.
  • Due to the strength of Civil Code 1511, an eviction for nonpayment has to fail because you are “excused” from paying, and not in default, due to COVID; a small claims judge might not even consider that law in his zeal to help all these clamoring landlords win as quickly as possible.
  • In an eviction trial, you can take days to present your case, with all the witnesses and evidence you have, whereas in small claims court, you are lucky to get as much as half an hour.
  • In an eviction case, you have the right to a jury trial, who could [and probably would] be sympathetic to your plight; there is no such right in a small claims case.
  • You have the right to a lawyer appearing with you in the eviction case, but not in small claims.
  • In an eviction case, evidence rules protect you from false or damaging evidence, whereas in small claims trials, evidence is casually presented and you are caught by surprise.
  • The eviction case permits “discovery,” where the landlord has to provide you documents and answer questions in advance, so you don’t get surprised at trial; in small claims you are canght by surprise.
  • The extra time you get in possession fighting an eviction case is worth in rent/time terms far more than what you spend fighting it.
  • The eviction case can be won on simple technicalities, which the small claims case could overlook, such as an incorrectly served eviction notice.
  • The eviction case involves defenses such as retaliatory rent increases, repair and deduct and illegal late fees paid in the past, that could undermine the landlord’s case entirely, while in small claims those offsets would simply be deducted from the total owed.
  • The time, expense and risk of fighting the eviction can build up to such a burden that the landlord would forgive all back rent, just to cut his losses and avoid the risk of losing, or even pay you to go, or the landlord may lose the property in foreclosure and the bank starts a new case and/or pays you to go.
  • The extra time, expense, and risk of an eviction case particularly with a jury trial gives the tenant far more leverage in negotiating a great settlement [such as being paid to go rather than owing any rent], whereas the quick small claims time frame removes any landlord incentive to yield from full payment.
  • Money that you spend for legal help in defending against an eviction can be recovered from the landlord when you win, but not in a small claims case.
  • Eviction cases are shielded from credit and tenant blacklisting unless there is a judgment against you; small claims cases are open to the public, and tenant blacklisting companies could simply search for small claims cases over $10,000, write down your name and ruin your chances for renting in the future.

Lots to think about and then discuss in a consultation. Your particular situation may warrant signing the declaration.  If in doubt, DON’T SIGN IT and fight the eviction head-on.

Trump Eviction Moratorium

Amid a national economy and tenancies on the brink, President Trump issued his own order on September 2, 2020, creating an eviction moratorium under the given conditions. Click here to download the actual Executive Order.