How does the recent state law, Assembly Bill No. 3088, also known as the Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020, affect the County’s eviction moratorium? + On August 31, 2020, Governor Newsom
signed Assembly Bill No. 3088 into law, which took immediate effect. Under this state law, residential tenants who
have suffered from “COVID-19-related financial distress” are protected from eviction
under certain conditions. More information about how the state law protects
residential tenants suffering from economic hardship due to COVID-19 and how to
receive the protections of the state law can be found here: https://landlordtenant.dre.ca.gov/faqs.html.The County’s eviction moratorium continues to
protect small business tenants and is extended through to March 31, 2021. Small
business tenants who qualify for protection under the County’s ordinance have
up to 6 months after the moratorium expires or terminates to repay at least 50%
of the past-due rent, and up to 12 months after the moratorium expires or
terminates to repay in full the past-due rent.
What changes did the Board action on November 3, 2020 have on the County’s eviction moratorium? + On November 3, 2020, the County Board of Supervisors enacted Ordinance No. NS-9.293, which extended the County’s eviction moratorium for protected small business tenants until the earlier of: (a) the date that Governor Newsom’s Executive Order N-28-20 or similar executive order expires (which is currently March 31, 2021), or (b) April 30, 2021. This means the County’s eviction moratorium for protected small business tenants is currently extended through March 31, 2021. What changes did the Board action on August 25, 2020 have on the County’s eviction moratorium? + On August 25, 2020, the County Board of Supervisors enacted Ordinance No. NS-9.292, which extended the County’s ordinance until November 30, 2020 and clarified existing law that any waiver of a tenant’s rights under the ordinance are void. State law enacted on August 31, 2020 placed specific limits on local ordinances. The residential tenant protections of the County’s eviction moratorium are now deemed to have expired on August 31, 2020 and to be replaced by the state law protections. However, the County’s eviction moratorium continues to protect small business tenants and is extended through to March 31, 2021. Do small business tenants still have to pay rent? + Yes, small business tenants are still obligated to pay rent. However, if a small business tenant has suffered a substantial loss of income and/or a substantial out-of-pocket medical expense as a direct result of the COVID-19 pandemic, they will be able to delay paying rent and are protected from being evicted because they cannot pay rent on time while the temporary eviction moratorium is in effect. If a tenant cannot pay rent as a direct result of the COVID-19 pandemic, they should notify their landlord as soon as possible in writing, and support their claim using objectively verifiable means (including documentation), being sure to keep a copy and proof of delivery if possible. How are landlords affected? + Landlords may still collect rent consistent with their rental agreements. But landlords cannot evict small business tenants for non-payment of rent if the small business tenant has suffered a substantial loss of income and/or a substantial out-of-pocket medical expense due to the 2020 COVID-19 pandemic. What is considered a “substantial loss of income” or “substantial out-of-pocket medical expense”? + What constitutes a “substantial loss of income” or a “substantial out-of-pocket medical expense” will depend on your specific situation. Generally, a reduction in operating hours, closure of your place of business, a substantial decrease in business income, the need to miss work to care for a school-aged child or a family member who is infected with 2020 COVID-19 resulting in a substantial loss of income, or other similar cause of diminished income are all examples of substantial loss of income when it is due to the 2020 COVID-19 pandemic or related guidance or orders from the local, State, or federal government.
A “substantial out-of-pocket medical expense” would be a medical expense for yourself or an immediate family member due to the 2020 COVID-19 pandemic.
How do I prove I have had a substantial loss of income or a substantial out-of-pocket medical expense? + Small business tenants who believe they have suffered a substantial loss of income or a substantial out-of-pocket medical expense due to the 2020 COVID-19 pandemic should provide their landlord with documentation, such as, but not limited to:
- Bank statements;
- Letters or notifications from schools the tenant’s dependent child attends that have closed due to the 2020 COVID-19 pandemic and that have caused a substantial loss of income (because, for instance, a parent has had to stop working to take care of a child or children);
- Medical bills
You may also provide any other documentation that demonstrates a substantial loss of income or a substantial out-of-pocket medical expense due to the 2020 COVID-19 pandemic.
When will back rent that accumulates during the moratorium be owed? + Protected small business tenants will have up to 6 months after the moratorium ends
to repay at least 50% of the past-due rent deferred during the moratorium and
12 months after the moratorium ends to repay in full the past-due rent deferred
during the moratorium. A landlord may not charge a late fee for rent that
was due during the eviction moratorium so long as the rent is repaid according
to this timeline.
Are non-profits protected too? + Yes, non-profit entities that satisfy all other requirements under the Ordinance are included under the definitions of “Tenant” and “Commercial Real Property” My lease is located in San José, Milpitas, or another incorporated city. Does this ban apply to me? + Yes, the temporary eviction ban applies county-wide to both incorporated cities and unincorporated areas within the geographic boundaries of the County. However, if a City has enacted its own anti-eviction regulation, the City’s own regulation applies within the City, except to the extent the County’s Ordinance provides stronger protections to small business tenants, in which case the stronger protections of the County’s Ordinance apply. What should I do if my landlord tries to evict me for non-payment of rent? + Under the temporary moratorium, landlords of small business tenants must state the reason for the termination of tenancy. For a small business tenant that qualifies for protection under the Ordinance, if a landlord tries to terminate your tenancy without complying with the terms of the temporary moratorium, the notice of termination is void. If such tenants receive eviction papers, they can use the landlord’s failure to comply with the temporary moratorium as a defense in the landlord’s eviction lawsuit. If a tenant receives lawsuit papers, they should immediately seek legal help to respond to the lawsuit. Additionally, if a landlord tries to terminate your tenancy without complying with the terms of the temporary moratorium, a tenant may bring their own lawsuit in Superior Court against the landlord for violating the Ordinance. Civil fines and penalties, monetary damages and injunctive relief may be imposed on landlords who seek to retaliate or deny small business tenants of their rights and protections under the ordinance. As a landlord, am I required to inform my tenants about this ordinance? + Prior to initiating any repayment plan with a tenant protected by this Ordinance, a landlord must first inform the small business tenant of their repayment rights under the Ordinance (ie. the tenant has up to 6 months after the moratorium ends to repay at least 50% of the past-due rent and 12 months after the moratorium ends to repay in full the past-due rent).
Any notice to terminate tenancy served on a small business tenant protected by this Ordinance during this temporary moratorium must include the reason for the termination, a notice of the tenant’s rights under this ordinance, and a notice of emergency rental assistance programs. A form of this required notice to a tenant can be obtained here. |
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