California, Nevada and Federal Covid-19 Tenant Eviction Protection Legislation

CALIFORNIA

On August 31, 2020, Governor Gavin Newsom signed AB 3088 enacting the Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020. The Act was signed into law to address what is expected to be an overwhelming number of residential evictions resulting from the COVID-19 pandemic and associated business closures. 

The Act precluded California courts from initiating legal proceedings (i.e. issuing a summons or entering a default judgment) on a landlord’s complaint to retake possession of a residence, legal proceedings known as an unlawful detainer, before Oct. 5, 2020. Landlords filing an unlawful detainer action after Oct. 5 are now required to file a cover sheet to indicate whether the property in question is residential or commercial and, if the property is residential, whether the action is based on nonpayment of rent or other charges.

Unpaid Rent from March 1 Through August 31, 2020

Once eviction courts re-open to nonpayment cases after October 5, 2020, tenants who could not afford rent because of the pandemic will be afforded temporary rent relief and eviction protection through January 21, 2021. The Act prohibits residential tenants from being evicted for failure to pay rent due to a COVID-19-related hardship occurring between March 1 and Aug. 31, 2020, so long as the tenant provides the landlord with a written declaration of hardship.  If a tenant has unpaid rent between March 1, 2020 and August 31, 2020, the landlord must provide the tenant with notice regarding tenant rights under the Act by Sept. 30, 2020.

Unpaid Rent from September 1, 2020 Through January 31, 2021

Residential tenants experiencing a new COVID-19-related hardship between Sept. 1, 2020 and Jan. 31, 2021 are also protected from eviction provided they pay at least 25 percent of the rent due during this period. Tenants with a household income of at least $100,000 per year, or 130 percent of the median household income, may be asked to submit additional documentation to support their hardship declaration.  Almost all tenants in California are protected by the new law.  The extra protections apply to all residential units, mobilehome parks, boarding houses, boarders, and in most cases short-term rentals, such as Airbnb.  For best practice purposes, Landlords should provide their tenants with notice regarding tenant rights under the Act as soon as practicable.

Unpaid Rent Can Be Collected Beginning March 1, 2021

Although landlords may not use nonpayment of rent due to the Covid-19 pandemic as grounds for eviction, residential tenants still owe all unpaid rent to the landlord. Landlords are permitted to start recovering past unpaid rent beginning March 1, 2021. The Act expands the jurisdiction of the small claims court to allow landlords to file claims for unpaid rent related to COVID-19, regardless of the amount owed, until Feb. 1, 2025.

Landlord Obligations

The Act requires landlords to provide hardship declaration forms in the same language in which the lease is written. Landlords must inform their residential tenants of their rights under the Act by September 30, 2020. Landlords are also prohibited from taking action against tenants or modifying existing leases in retaliation for nonpayment of rent due to COVID-19. The Act has strict penalties for landlords who exercise “self-help” to evict tenants, such as locking tenants out, removing property or shutting off utilities.

Tenant Obligations

Residential tenants facing financial hardship due to COVID-19 should return hardship declaration forms, which landlords are required to provide, within 15 days of receiving the form. As long as a residential tenant follows the procedures of the Act, including making the 25 percent minimum rent payments, they will be protected from eviction, including “just cause” eviction if the landlord attempts to evict the tenant for COVID-19-related non-payment of rent.

Tenants now have additional time to pay rent, because the Act extends the notice period for nonpayment of rent from 3 days to 15 days.

Beginning Oct. 5, 2020, California courts will be permitted to enforce unlawful detainers for reasons other than non-payment of COVID-19-related rent, such as creating a nuisance, damaging the property or violating other terms unrelated to payments. In addition to complying with the terms of the Act, tenants must continue to comply with all other lease terms to avoid eviction.

Local Ordinances Must Be Consistent With The Act

The California Legislature also took steps to create rent-relief uniformity throughout the State. Existing local ordinances may remain in place, but any future local ordinance must be consistent with the Act. All existing and future local ordinances must also comply with the repayment schedule provisions of the Act. If the local ordinance was in effect and required a repayment period to begin after March 1, 2021, or conditioned commencement of the repayment period on the end of the state of emergency or local emergency, the Act now deems that repayment period to begin on March 1, 2021 and requires such period to be complete by March 31, 2022.

Commercial Evictions

The Act specifically excludes tenants of commercial property from the definition of “tenant.” Consequently, commercial properties are not covered by the new Act, and commercial tenants do not receive the same statewide eviction protections provided to residential tenants. Commercial landlords may file unlawful detainer actions against their commercial tenants — unless the properties are located in a city or county that has an eviction moratorium of its own that extends to commercial tenants.

NEVADA

On March 24, 2020, Governor Sisolak issued Emergency Directive 008 establishing a statewide eviction moratorium through June 30, 2020 whereby no notice to vacate, notice to pay or quit, eviction, foreclosure action, or other proceeding involving residential or commercial real estate based upon a tenant or mortgagee’s default of any contractual obligations imposed by a rental agreement or mortgage may be initiated under any provision of Nevada law. 

On June 25, 2020, Governor Sisolak issued Emergency Directive 025 modifying the state’s eviction restrictions in Emergency Directive 008. Beginning August 1, 2020, housing providers could file for lease violations outside of nonpayment using a 5-day notice to cure followed by a 5-day unlawful detainer. Additionally, filings for nonpayment were allowed in cases where residents default on payment plan arrangements, provided the governor’s form or other acceptable form was used as an addendum to the lease agreement. Starting September 1, 2020, filings for any nonpayment of rent could be filed and late fees may be charged on future rent.  Any evictions stayed had to be re-served unless the resident in question responded to the initial notice.

Governor Sisolak signed Nevada Emergency Directive 031 on August 31, 2020, which prohibited the initiation of nonpayment of rent summary eviction through October 14, 2020.  However, Nevada’s statewide moratorium on such evictions expired on October 15, 2020.

FEDERAL

On September 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued an Agency Order to temporarily halt residential evictions to prevent the further spread of Covid-19 (Order).  The Order temporarily halts the residential evictions of “covered persons” in applicable jurisdictions for nonpayment of rent from September 4, 2020, through December 31, 2020.  Covered persons still owe rent to their landlords and must still fulfill their obligations and the terms of their lease.  When the Order expires, consistent with applicable landlord-tenant or real-property laws, a covered person will owe their landlord any unpaid rent and any fees, penalties, or interest as a result of their failure to pay rent during the period of the Order.

“Covered Persons”

For the purposes of the Order, a “covered person” is any tenant, lessee, or resident of a residential property who provides their landlord with a declaration under penalty of perjury that:

(1) The individual has used best efforts to obtain all available government assistance for

rent or housing;

(2) The individual either (i) expects to earn no more than $99,000 in annual income for

Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not

required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii)

received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the

CARES Act;

(3) The individual is unable to pay the full rent or make a full housing payment due to

substantial loss of household income, loss of compensable hours of work or wages, a

lay-off, or extraordinary out-of-pocket medical expenses;

(4) The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and

(5) Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

Tenant Declaration Required For Protection

A tenant, lessee, or resident of a residential property must provide a completed and signed copy of the declaration to their landlord.  The declaration form may be found on the CDC’s website, and may be signed and communicated either electronically or by hard copy.  Landlords are not required to make their tenants aware of the Order and Declaration, but landlords must otherwise comply with all requirements of the Order. Anyone who falsely claims to be a covered person under the Order by attesting to any material information which they do not believe to be true may be subject to criminal penalties under 18 U.S.C. § 1621 (perjury) or other applicable criminal laws.

Applicable Jurisdictions and Properties

The Order applies in all states (including the District of Columbia) that do not have in place a moratorium on residential evictions that provides the same or greater level of public-health protection than the CDC’s Order. Relevant courts deciding these matters should make the decision about whether a state order or legislation provides the same or greater level of public health protection.

The Order applies to any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes.  The Order does not apply to hotel rooms, motel rooms, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the state, territorial, tribal, or local jurisdiction.

Evictions Other Than On The Basis Of Non-Payment Of Rent Are Allowed

Covered persons may be evicted for reasons other than not paying full rent. For example, the Order does not prevent a tenant from being evicted for:

(1) engaging in criminal activity while on the premises;

(2) threatening the health or safety of other residents;

(3) damaging or posing an immediate and significant risk of damage to property;

(4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or

(5) violating any other contractual obligation of a tenant’s lease, other than the timely payment of rent or similar housing-related payment (including nonpayment or late payment of any fees, penalties, or interest).

The Order is unclear as to whether it allows for evictions that are not based on failure to pay rent, but are also not one of the five exempted categories listed above.  Tenant advocates may argue that the order prohibits any eviction of a covered person not falling into the five exempted categories, or that any non-enumerated ground for eviction would similarly need to involve tenant misconduct or a lease violation (other than nonpayment of rent). This interpretation would block all evictions of covered persons not only for nonpayment of rent, but also based on lease expiration, no cause eviction with proper notice, eviction based on the landlord wishing to move into the property, and any other evictions unrelated to a tenant’s lease violation.  However, the text does not explicitly provide that the included list of permissible grounds for eviction is exclusive, and a landlord theoretically could seek to terminate a tenancy for a non-enumerated reason unrelated to nonpayment of rent.

David W. Wolfe  is an associate attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He can be reached at wolfe@portersimon.com or www.portersimon.com.

The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the contents of this blog and expressly disclaims liability for any errors and omissions.