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:
-
- The eviction case permits Discovery, where the landlord has to provide documents and answer questions, while small claims does not.
- 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.
- 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
- Given the millions of eviction cases, and the various technical things that can prolong it, and eviction case could (in the post COVID world) last for many months or even years, whereas a small claims case would be over relatively simply.
- 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 incentive for the landlord to yield from full payment.
- 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 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 rick of losing, or even pay you to go, or the landlord may lost the property in foreclosure and the bank starts over or pays you to go.
- If you fight the eviction case instead of submitting the declarations, your “rent” obligation ends, 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.
- 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 the back money in small claims.
- 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 get their judgments as quickly as possible.
- 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 appear 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.
- 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.
