You may have received an 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 postpone an eviction, but that may not actually be your best choice, and in most cases, it is not. Here are the simple explanations of the new State and Federal laws, and Civil Code 1511. There are details and some exceptions to keep it understandable. 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.
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 Declaration. You don’t have to pay anything as a condition, nor show any proof of your inability to pay, for this back amount. If you do that, 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 send in the Declaration by that 21-day deadline, the landlord CAN start an eviction.
2. As to rents due between September 1 and January 31, there is a different 3-week notice 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 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 to postpone any eviction until 2021, if those statements in the declaration are true.
These notices and declarations are intended to protect you from eviction. You can avoid eviction temporarily and only for nonpayment of rent during the COVID period [3/1/20-1/31/21].
What About the Money?
These new laws emphasize that by signing the declaration, you are not being relieved of any rent debt. You are only not being evicted for nonpayment. The assumption is that you will just have a huge judgment for unpaid rent that will ruin your credit, and subjecting you to garnishments, taking your car and other personal property, while you are trying to pay future rent. The State law expands small claims court to cover the landlord’s rent claims beyond the $10,000 limits, in order to cost-effectively help the landlord win against you to get that judgment. 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.
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 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 or Judge Judy, or those types of shows, small claims court is very much like that. Eviction cases are more like the normal kind of courtroom scene, with the jury and legal formalities.
Beyond the 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:
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.