What changes did the recent Board actions on May 26, 2020 and June 2, 2020 have on the County’s eviction moratorium?
On May 26, 2020 and June 2, 2020, the County Board of Supervisors enacted Ordinance No. NS-9.288 and Ordinance No. NS-9.289, respectively. These actions extended the eviction moratorium through July 28, 2020 and amended the repayment period for a tenant to repay the past-due rent from 120 days to 12 months after the moratorium ends, with at least 50% of the past-due rent repaid within 6 months after the moratorium ends. Landlords may not charge a late fee so long as the rent is repaid according to this timeline. The ordinance was also amended to require a landlord to inform a tenant of their repayment rights under the moratorium prior to initiating any repayment plan with the tenant. These amendments to the ordinance are effective as of June 2, 2020.
Why did the County enact a temporary ban on evictions?
The County is already experiencing a homelessness and home affordability crisis. The 2020 COVID-19 pandemic and related government orders and guidance are likely to cause significant disruption to local businesses and the local economy, further adding to the financial strain County residents and businesses face due to job loss, medical expenses and related loss of income. The County Board of Supervisors enacted this temporary ban in order to prevent further homelessness and protect the health, safety, and welfare of its residents.
Do tenants still have to pay rent?
Yes, tenants are still obligated to pay rent. However, if a 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 and are protected from “no fault” eviction as listed in California Civil Code section 1946.2(b)(2) 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 tenants for non-payment of rent or exercise a no-fault termination provision if the tenant has suffered a substantial loss of income and/or a substantial out-of-pocket medical expense for themselves or an immediate family member 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, job loss, a reduction in work 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?
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:
- Letters from employers citing the 2020 COVID-19 pandemic or related government action as the basis for termination of employment, reduced work or earnings;
- 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?
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.
Does this ban apply to commercial tenants?
Yes, the County ban also applies to commercial tenants if they meet the size standards for a small business under the U.S. Small Business Administration’s table of size standards by industry, codified in the Code of Federal Regulations at 13 C.F.R. section 121.201. The Code of Federal Regulations is available on the Internet at https://www.ecfr.gov/
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”
I live 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 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 or pursuant to a no-fault termination provision?
Under the temporary moratorium, landlords must state the reason for the termination of tenancy. For a tenant who 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 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.
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 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 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.