COVID-19 has impacted every sector of society. In the case of tenants who are caught between a severe housing shortage and rising housing costs, as one local official put it, "sympathy has translated into policy" in the form of tenant protection laws and moratoriums on rents and evictions. On the other side are landlords, particularly mom and pop landlords, who feel squeezed, as they, too, have bills to pay. They depend on rent payments to pay the mortgage and utilities of the rental property.
Members of the Silicon Valley Association of Realtors have been learning about this conflicting issue and best practices, so they can best serve their clients. At a recent virtual Realtor meeting, landlord-tenant attorney Brian Skarbek, with the Law Offices of Todd Rothbard, explained to the group that three layers of law are blocking landlords from receiving rent payments from tenants - the California Judicial Council's Rule 1, which suspends all eviction cases except for public health and safety reasons; other COVID-19 moratoriums imposed by local jurisdictions; and the Tenant Protection Act of 2019, popularly known as the rent control and just cause eviction law.
The Judicial Council suspended all eviction lawsuits for at least 90 days after Gov. Newsom lifts the current state of emergency order. Chief Justice Tani Cantil-Sakauye has hinted the Council may vote to lift the moratorium this week.
Skarbek indicated the moratorium on eviction proceedings is being legally challenged because it is unconstitutional. The ruling violates the doctrine of separation of powers because it is not the role of the judicial branch to legislate.
The landlord-tenant attorney said other COVID-19 eviction moratoriums imposed by local jurisdictions are just as unlawful and they are likely to be challenged, as well. Some counties/cities that enacted their own moratorium have extended the grace period for rent payments beyond the Council's 90-day rule to as far out as 180 days.
Although tenants only get the reprieve from paying rent due to a COVID-19 impact, Skarbek said some cities' standards for COVID-19 related impacts are very broad. Additionally, tenants not impacted by COVID-19 are also not paying rent and landlords are prevented from filing a suit against them because of the moratorium. Should the Council lift the moratorium, local eviction moratoriums would continue to apply, but landlords would be allowed to take legal action in cases like this. Skarbek expects there will be a backlog of cases in the courts, since these cases will be added to pre-COVID cases already on the docket whose proceedings were halted by the moratorium.
Additionally, the Tenant Protection Act places restrictions on rent increases and only allows evictions for just cause, making it more difficult for landlords to terminate a lease. Once a tenant has stayed in a property for 12 months, the owner can terminate the lease only for just cause. Skarbek said single-family homes, condos and townhomes are exempt, but landlords were required to provide tenants a notification/addendum using mandatory exemption language for covered properties by August 1st. If not done by the deadline landlords can rectify this with a change of terms agreement.
"Any rental agreement here forth must include the exemption language," said Skarbek.
For now, Skarbek advises landlords to accept partial payments. "Take what you can get. Given the current environment, if you can get part, take part."
Skarbek added that landlords cannot change the terms of a lease that is current, or break a lease. He also warned it is illegal to turn off utilities in retaliation for non-rent payment.
For questions or more information on landlord-tenant laws, email Office@ToddRothbardLaw.com or call (408) 244-4200.
The Silicon Valley Association of REALTORS® (SILVAR) is a professional trade organization representing over 4,000 REALTORS® and Affiliate members engaged in the real estate business on the Peninsula and in the South Bay. SILVAR promotes the highest ethical standards of real estate practice, serves as an advocate for homeownership and homeowners, and represents the interests of property owners in Silicon Valley.
The term "REALTOR®" is a registered collective membership mark which identifies a real estate professional who is a member of the National Association of REALTORS® and who subscribes to its strict Code of Ethics.
Variations of this article have appeared in local area newspapers.
For further information, please email or call the SILVAR office at (408) 200-0100.