Effective Immediately: Residential Tenants Receive Further COVID-19 Protections in California

On August 31, 2020, California Governor Gavin Newsom signed an eviction protection law that significantly amends the long-standing procedures for initiating and prosecuting residential unlawful detainer actions based on failure to pay rent. The new law, called the COVID-19 Tenant Relief Act of 2020 (Tenant Act), includes the following new rules:

• Before October 5, 2020, a court may not: (1) issue a summons on a complaint for unlawful detainer in any action that seeks possession of residential real property based, in whole or in part, on nonpayment of rent or other charges or (2) enter a default or default judgment for restitution in an unlawful detainer action that seeks possession of residential real property based on nonpayment of rent or other charges.

• A plaintiff in an unlawful detainer action must file a cover sheet that indicates whether the action is based in whole or in part, on an alleged default payment of rent or other charges.

• On or before September 30, 2020, a landlord must provide a tenant who, as of September 1, 2020, has not paid one or more rental payments that came due during the period March 1, 2020 through August 31, 2020, with the statutorily prescribed notice set forth in Code of Civil Procedure Section 1179.04(a). This notice summarizes the protections under the Tenant Act.

• A landlord must comply with new notice requirements when seeking payment of “COVID-19 rental debt.” “COVID-19 rental debt” means “unpaid rent or any other unpaid financial obligation of a tenant under the tenancy that came due during the covered time period.” “Covered time period” means the “time period between March 1, 2020, and January 31, 2021.”

• The new notice requirements include the following:

• Tenants must be given at least 15 days, excluding Saturdays, Sundays, and other judicial holidays, to pay rent or deliver possession.

• The notice must state the amount of rent demanded and the date each amount became due.

• The notice must advise the tenant that the tenant cannot be evicted for failure to comply with the notice if the tenant delivers a signed declaration of COVID-19-related financial distress to the landlord on or before the date that the notice to pay rent or quit or notice to perform covenants or quit expires.

• If the notice to pay rent demands rent that came due during the protected time period (defined as the period between March 1, 2020 and August 31, 2020), the notice must include the statutorily prescribed advisory of the tenant’s rights under the Tenant Act. The language of the advisory is in Code of Civil Procedure Section 1179.03(b)(4).

• If the notice to pay rent demands rent that came due during the transition time period (defined as the period between “September 1, 2020 and January 31, 2021), the notice must include the statutorily prescribed advisory of the tenant’s rights under the Tenant Act. The language of the advisory is in Code of Civil Procedure Section 1179.03(c)(4).

• A copy of a declaration of COVID-19-related financial distress must be served with each notice to pay rent or quit. A “Declaration of COVID-19-related financial distress” means a written statement, signed under penalty of perjury, that states the reason(s) the tenant is unable to pay rent due to the COVID-19 pandemic. The specific reasons related to the COVID-19 pandemic are described in Code of Civil Procedure Section 1179.02. If the tenant is a “high-income tenant,” the landlord may demand additional information.

• If a tenant timely delivers a declaration of COVID-19-related financial distress in response to a notice demanding payment of rent that came due during the protected time period the tenant shall not then or thereafter be deemed to be in default for purposes of the unlawful detainer statute. (A notice is timely delivered if delivered to the landlord within 15 days of service of the notice demanding rent).

• With respect to an uncured notice to pay rent that came due during the transition time period, a landlord may not initiate an unlawful detainer action before February 1, 2021.

• A tenant may not be found guilty of unlawful detainer, now or in the future, based on nonpayment of COVID-19 rental debt that came due during the transition time period if, on or before January 31, 2021, the tenant tenders one or more payments that, when taken together, are equal to not less than 25 percent of each transition period rental payment demanded in one or more notice and for which the tenant timelydelivered a declaration of COVID-19-related financial distress to the landlord.

• If the tenant does not timely deliver the declaration, and the landlord files an unlawful detainer action, the tenant can file the declaration with the court within the time period permitted to respond to an unlawful detainer summons. If, after a noticed hearing, the court finds that the tenant’s failure to timely deliver the declaration was the result of mistake, inadvertence, surprise, or excusable neglect, within the meaning of Code of Civil Procedure section 473(b), the court must dismiss the lawsuit, subject to certain exceptions.

• Before February 1, 2021, a court may not find a tenant guilty of unlawful detainer except in limited circumstances, including: (1) the tenant was guilty of the unlawful detainer before March 1, 2020; (2) the tenant fails to comply with the new rules pertaining to notices to pay COVID-19 rental debt; (3) the unlawful detainer arises from an “at-fault just cause,” among other reasons. 

• To recover COVID-19 rental debt, landlords can file a small claims lawsuit starting March 1, 2021. The jurisdictional limits of the small claims court will not apply to disputes over COVID-19 rental debt.

• With respect to eviction-related laws enacted by local government that are currently in place related to the COVID-19 pandemic, the following rules apply:

• Any extension, expansion, renewal, reenactment, or new adoption of a measure, however delineated, that occurs between August 19, 2020, and January 31, 2021, shall have no effect before February 1, 2021.

• Any provision which allows a tenant a specified period of time in which to repay COVID-19 rental debt shall be subject to all of the following: (a) If the provision in effect on August 19, 2020, required the repayment period to commence on a specific date on or before March 1, 2021, any extension of that date made after August 19, 2020, shall have no effect; (b) If the provision in effect on August 19, 2020, required the repayment period to commence on a specific date after March 1, 2021, or conditioned commencement of the repayment period on the termination of a proclamation of state of emergency or local emergency, the repayment period is deemed to begin on March 1, 2021; (c) The specified period of time during which a tenant is permitted to repay COVID-19 rental debt may not extend beyond the period that was in effect on August 19, 2020. In addition, a provision may not permit a tenant a period of time that extends beyond March 31, 2022, to repay COVID-19 rental debt.

• The Tenant Act, which is effective immediately, is retroactive to August 19, 2020 and expires February 1, 2025.

Landlords and tenants should carefully review all requirements of the Tenant Act to ensure compliance.

Nicholas Kanter is a Shareholder in our Employment, Civil Litigation and Real Estate Practice Groups.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.