Notices, Notices, Notices! What Do They All Mean?

When you come home and see a notice on your front door, then it can cause you to panic. “What did I do wrong?” “Am I late on the rent?” “Did my kids do something wrong?” All those thoughts can run through your mind when your landlord posts a notice on your front door. Landlords can serve different types of notices on tenants for different reasons. Over the next few blog entries, we’ll take a look at some of the notices that a landlord might serve on a tenant and see what they mean. Today we will focus on the Three-Day Notice to Pay or Quit.

The first notice that most tenants will be familiar with is a Three-Day Notice to Pay or Quit. This is a notice that a landlord serves on the tenant if the tenant has not paid rent on time. Most tenants’ rent is due on the first of the month (your lease should tell you when your rent is due). Rent is due on that date, regardless if that date is a holiday or a weekend. Most tenants’ leases, however, also state a date on which the rent is late. This is known as a grace period. The number of days can vary. So some tenants’ rent payments are due on the first of the month and are late on the fifth of the month. Once the tenant’s rent is late, then the landlord can serve the Three-Day Notice to Pay or Quit. If the landlord tries to serve the notice before the rent is late, then they are going to run into complications down the road if they try to evict the tenant. Normally, landlords know when they can serve Three-Day Notices to Pay or Quit.

What are the tenant’s options when a Three-Day Notice to Pay or Quit is served upon the tenant? First, the tenant can pay the rent (and any late fee) within that three-day period. If the tenant pays the past-due rent within that three-day period, then the landlord cannot try to evict the tenant.

But when do the three days end? If a tenant is served on a Monday, then do the three days expire on Wednesday, Thursday, or Friday? Surprisingly, counting days can be a little tricky in the law. But here’s the scoop: the day on which the tenant is served the notice does not count as one of the three days. So, if the tenant was served the notice on Monday, then the tenant would have Tuesday, Wednesday, and Thursday to pay the rent. If Friday rolls around, and the tenant still has not paid the past-due rent, then the landlord is entitled to begin eviction proceedings. Now, to be candid, the landlord may still take a tenant’s rent even beyond the expiration of the three-day period, but the landlord doesn’t have to take the rent. The landlord can instead decide to evict the tenant for failing to pay the rent.

There are several other factors that determine when the three days actually expire. Factors such as how the notice was served on the tenant (in person, posted on their door, given to someone else in the family), what day of the week it was served, and what day of the week it is set to expire can all significantly impact when the three days expire. Because there are so many variable factors, tenants are encouraged to speak with a lawyer about their particular situation and concerns.

The next option that a tenant has if they are served with a Three-Day Notice to Pay or Quit is to quit. Quit? Yes, the tenant has the option of packing up and moving out of the apartment or home within the three days. But this does not mean that the landlord cannot come after the tenant for outstanding rent and for future rent. Put simply, this option has one benefit: it keeps the landlord from beginning eviction proceedings against the tenant. For all tenants know that one of the worst things that you can have on your record when looking for a new apartment is an eviction proceeding.

Eviction proceedings are a special type of legal proceeding that is primarily concerned about removing a non-paying tenant from the apartment or home, so that the landlord can get a new tenant in who will pay rent. As a result, eviction proceedings get priority in the courthouse. But if a non-paying tenant moves out within that three-day period, then the law won’t let the landlord file an eviction proceeding against the tenant. The tenant still will have the right to sue the former tenant for the past due rents and future rent, but the landlord would have to go to a different courthouse to do that, and those courthouses take a lot more time and money to bring about justice. As such, landlords are a lot more likely not to sue the tenant who just ups and moves out within three days of being served a Three-Day Notice to Pay or Quit. It doesn’t mean that they won’t, or that they are not entitled to do so. Rather, it just means that the odds are less likely. And, sometimes, for a tenant, that can be worth the risk.

As a practical matter, if you are a tenant and you know you are going to be late on your rent, then you want to let your landlord know ASAP. Working with your landlord is always better than surprising your landlord. Life happens. People get laid off. People lose their jobs. Emergencies fall into everyone’s laps from time to time. The tenant who knows that he or she cannot pay the upcoming rent is smart to let their landlord know in advance.

When a tenant is laid off from work and is waiting for unemployment to kick in before the tenant can make the rent payment, the landlord is likely going to be a lot more lenient if the landlord knows what happened and approximately when the tenant’s unemployment is going to kick in. Remember, landlords are in the business of renting apartments. If they have to wait a few extra days to get the full rent, then they are likely going to wait. It doesn’t mean that they are lawfully required to wait, but from a practical standpoint, they are likely going to opt to wait for the rent payment over beginning eviction proceedings.

Can the service of a Three-Day Notice to Pay or Quit ever be evidence of housing discrimination? Yes, potentially. But this is going to be hard to prove. If the landlord is quick to serve Three-Day Notices to Pay or Quit on one group of persons (for example, single men), but not on other groups of persons, then it may be evidence of discrimination. If you think that you might be a victim of discrimination, then you want to focus on the most important thing at the moment: getting caught up on your rent. Once you do that, then you need evidence (not just pure speculation) that supports your suspicion. If there is evidence of discrimination, then you may want to pursue a claim.

In the end, the sight of notices on your front door are never a pleasant sight. Read them immediately, and be prepared to act. If you are behind on your rent, then pay the past due rent (and any late payment) within three days of receiving the notice or you run the risk of being evicted.

11.4 Times Is Enough!

According to the Census Bureau, the average American moves 11.4 times in a lifetime. If you are like most people, then you dread the thought of moving. What seems like it should take just a few hours, turns into a few days. Things get scratched, things get broken, and you often wonder why you are holding on to all this junk. But there is no time to waste, so you just throw all the junk into a box and take it out to the moving truck. You promise yourself that you’ll go through it as soon as you get to your new place.

After you move and unpack, you have to find a new place to work on your car, a new place to cut your hair, a new place to just about everything under the sun. While it is sometimes nice to escape some neighbors, when you arrive in a new neighborhood, you know no one. While it is a chance for a fresh start, it also can be a cause of loneliness. If you’ve had to move further away from family because of a job opportunity, then the holidays can become disappointing when you are celebrating them all alone.

While the average American moves 11.4 times in a lifetime, some are forced to move against their at the drop of a hat when a landlord serves a notice on them to terminate their tenancy. Sometimes the notice to move is justifiable. For example, a tenant fails to timely pay the rent, and the landlord starts the eviction process. Other times, the notice to move is unjustifiable. For example, the landlord may just be sick of seeing your children playing in the common areas of your apartment complex, so the landlord hands you a notice to terminate your lease in 30 days. And the wild scramble to find a new place begins.

Put simply, whenever you move, it should be because it’s your choice or because the terms of your lease are up. You should never be forced to move away from a home because a landlord is sick of your children. That’s illegal. If you find yourself in that situation, then call the Law Offices of Stuart E. Fagan for help.

Racism, Renting, and Retaliation

In light of current events, I want to share three incidents involving racial discrimination in the housing context. The first, technically, would not be classified as housing discrimination because it involved a short stay at a motel. But I want to share it anyway, so that we can learn from what people of color go through when simply trying to find a place to lay their head.

“Vacancy”

When my brother’s best friend (we’ll call him Paul) finished his time in the military, the last thing that he wanted to do was to spend one more night in the barracks. As such, he gathered all of his stuff and walked to a local motel. The motel had a “vacancy” sign lit up, so he knew he was in luck.

As Paul walked into the door, the clerk asked, “Can I help you?”
“Yes, I’d like to get a room for tonight,” said Paul.
“I’m sorry, but we don’t have any vacancy,” said the clerk.
“But the sign outside says that you have vacancy,” said Paul.
“I don’t know why that sign is on,” said the clerk as he reached over to turn it off. “But we don’t have any vacancy.”
Paul, a black American, was in disbelief. But he turned and walked out the door and back to the barracks. After 100 yards or so, Paul turned around just in time to see the “no vacancy” sign switch to “vacancy.”

“I was calling about the ad in the paper.”

One of my best friends (I’ll call him Michael) and I were once talking. At the time, Michael was looking for a new apartment. At the time, there were plenty of rentals in his economic range.
“It’s tough to find an apartment,” Michael said to me.
“What do you mean?” I asked.
“I have to call at least three or four apartments every time before I ever get an apartment that I can look at,” said Michael.
“Are you just randomly calling places?”
“No, they all are advertising that they have vacancies, but when I call, they say that they are already gone.”
When I was younger and a renter, I had never experienced this phenomenon. Every time an apartment complex was advertising a vacancy and I called, I was always invited to come look at the available apartment.
But Michael explained to me that as a black man, he always had difficulty finding an apartment, even when they were advertised for rent. It didn’t take long, and I realized that Michael was likely the victim of what is known as linguistic profiling.
Linguistic profiling is the practice of listening to a person’s voice for cues as to whether that person is white, black, or some other race or protected characteristic. It’s wrong, but it’s tough to prove. But what is happening is that the person who is calling about the vacancy is being denied a housing opportunity because of his or her race (or other protected category).
If you think that you are the victim of linguistic profiling, then one of the practical things that you can do is to have someone else call shortly after you’ve called about the opening. Obviously, if you think that you are being treated differently because of your race, then it makes sense to have someone else call who is a different race from you. Otherwise, they might run into the same problem.

“We don’t like your kind around here.”

One of the first fair housing cases that I took involved a white woman. The woman was divorced. She and her husband had one child, who was then a teenager. The child would spend the school year with his mom and summer with his dad.

My client began looking for a new apartment during the summer. The landlord liked her and wanted to rent an apartment to her. She informed the landlord that her son would be living with her during the school year. “That’s no problem,” said the landlord. Shortly thereafter, my client moved into her new place.

Before long, summer rolled around, and her son came home. Her son, incidentally, was half white and half black.

Not long after her son moved in with her, my client saw the manager. He wanted to talk to her. “”So I saw your son the other day and I see your son is black!”

“Yes, why?,” said my client.

“That explains why I’ve seen blacks go to your house before.”

On another day, the landlord accused my client of having people come in and out of her apartment while she was gone to work. When she denied the charge, the landlord replied:
“I don’t want your kind of people around here. All of the neighbors over on your side have complained because they are scared of the blacks and your son is black and I can’t have my other tenants leaving because of you and your son and black friends or whatever they are!”

In disbelief, my client responded:
“My son is an A-B student that works hard in school, has never been in trouble with the law, and that we never really see our neighbors that much because we keep to ourselves.” She then added that she did not believe that was the truth or the reason.

“Your son is a black teenage boy and they are known to be gang members and I don’t care what you say you won’t convince me otherwise because I know how ‘they’ are. I don’t want any teenagers on my property and the black ones especially they are the most trouble.”

My client then stated to the landlord that his current statements and prior similar statements that he had made amounted to racial and age discrimination. The landlord snickered and said to her, “Well, you’d have to prove it, and you won’t be able to, so you can just move and let it be; you can’t touch me.”

It wasn’t long, and the landlord served a 30-day Notice to Terminate my client’s tenancy. Needless to say, we filed a lawsuit and were able to eventually reach a settlement. That case, however, has remain etched in my memory due to the landlord’s blatant racism.

Repairs and Retaliation

Most landlords are quick to make necessary repairs to tenants’ homes because they know that if repairs go unfixed, then the tenant is likely to either not renew their lease or take legal action. As such, if you are a tenant and your residence needs a repair, then the first thing that you want to do is to promptly notify the landlord of the needed repair. Ideally, you will have time to put your repair request in writing (or submit it electronically), so that there is a record of your repair request. Keep copies of your repair requests, for they will be important to you if your dispute ends up in court. But, if there is no time to make a written request (e.g., there is a water leak), then follow up your initial telephonic or oral request with an email or written note. The email or note only needs to say something such as, “As I mentioned, the roof in the bedroom is leaking. Thank you, for agreeing to send someone to fix it right away.” The point of the written record is to prove that you told the landlord about the problem.

Sometimes when the repair is not urgent, then you may run into a landlord who is slow to fix the problem. Other times, a landlord simply will refuse to make necessary repairs because the landlord doesn’t want to spend the money.

If your landlord refuses to make necessary repairs to your apartment or house, then you may need to contact your local housing and code enforcement department for help (it’s free). Code enforcement is responsible for enforcing laws of the State of California and some county ordinances. The local housing and code enforcement department can inspect the rental property and document any code violations. (See the list below of most major counties’ code enforcement telephone numbers.)

Briefly, the Uniform Housing Code and the California State Health and Safety Code set minimum standards for dwellings. A code violation makes a building “substandard” within the meaning of the law when the violation is to such an extent that it endangers life, limb, health, property, safety, or the welfare of the public. Code enforcement thus will check to see if your home meets those standards. These standards include such items as requiring adequate heating, plumbing, and electrical systems, and more.

After code enforcement inspects the rental property, if it finds code violations, then the code enforcement inspector will mail the property owner a courtesy letter explaining the alleged complaint and ask that the owner contact the code enforcement department for information on how to fix the alleged violations. The property owner is then given a reasonable amount of time to take care of the violation. If the owner fails to timely fix the problem, then it may be subjected to fines (and other legal measures). Be that as it may, code enforcement works with many responsible property owners who maintain or bring properties into compliance. This type of voluntary compliance is the goal, rather than issuing fines and enforced compliance.

But sometimes landlords don’t take too kindly to tenants calling code enforcement for help. And it time landlords begin to take retaliatory actions against the tenants. The retaliation may take the form of a refusal to renew a lease. Or it may take the form of towing a tenant’s car even though it had the proper parking sticker on it. Some landlords may even go into a tenant’s unit and snoop around or do damage to the unit while the tenant is away from home. If you sense that the landlord has begun to retaliate against you, then seek legal help ASAP. You have a right to live in a non-threatening environment. There are specific laws that protect tenants from landlord retaliation. Feel free to call us if you need help.

Code Enforcement Telephone Numbers:

Alemeda County: (925) 960-9486 or (510) 670-5400 or (510) 238-3381
Contra Costa County: (925) 674-7210
Fresno County: (559) 600-4550
Kern County: (661) 862-8602
Los Angeles County: 3-1-1 or (213) 473-3231
Monterey County: 2-1-1 or (831) 372-8026
Orange County (Environmental Health): (714) 433-6000
Riverside County: (951) 955-2004
Sacramento County: 3-1-1 or (916) 875-4311
San Bernardino County: (909) 884-4056 or (760) 995-8140
San Diego County (Environmental Health): (858) 505-6903
San Joaquin County: (209) 460-5000
San Francisco County: (415) 558-6454
Santa Clara County: (408) 299-5770
Solano County: (707) 784-6100
Sonoma County: (707) 565-1992
Stanislaus County: (209) 525-6700
Tulare County: (559) 624-7060
Ventura County: 2-1-1 or (800) 339-9597
Yolo County: (530)757-5646

HOW TO SPOT DISCRIMINATORY HOUSING ADS

If you are looking for a new place to live, then you likely are going to be looking at advertisements for new places to live. While landlords are not allowed to discriminate when announcing rental vacancies, it can happen. So let’s take a look at what those discriminatory ads might look like and then talk about what you can do about it.

Families with Children (“Familial Status”)

In the old days, it was not uncommon for an apartment complex to state in an advertisement, “Sorry, no children!” But in 1988 familial status was added to the list of protected categories under the Fair Housing Act. Why? Because families with young children were having trouble finding places to live. Also, landlords were using the excuse of having children to discriminate against people because of race or national origin. For example, if the landlord didn’t like a certain race, then it was much easier for the landlord to discriminate against those people based on their race by simply claiming that the landlord normally would rent to them, but since they had young children, the landlord wasn’t going to rent to them. Obviously, this was a problem that needed to be fixed, so Congress added the category of “familial status” to try to stop both problems.

What is “familial status” anyway? It’s a status. For example, what is your marital status? Are you single or married? What is your employment status? Are you working or not? When it comes to familial status, people who live together are either “familial” or not. Simply put, to fall within the category of “familial status,” the people who live together must consist of: a child (under 18 years old) living with either: 1) a parent or parents; 2) a lawful guardian; or 3) someone who has written permission to have that child live with them (think of someone like a grandparent). Let me give you a few examples: 1) a 14-year old daughter living with her mom would fall within “familial status.” 2) three college students living together would not fall within the classification of “familial status,” for none of them is a child. 3) parents living with their 18-year old son would not be classified under “familial status” because their son is over 18 years old. Normally, it is easy to determine if a group of people living together falls within the protected category, but some living arrangements can be messy.

Ads stating things such as, “ideal for working professionals,” arguably indicate a preference for adults only. So, too, do ads that declare an apartments is “perfect for single or couple.” The implication? The apartment is not perfect for a family with children. Finally, ads that proclaim: “nice, quiet, mature, neighborhood” seem okay at first blush. But when you start to think about the ad, “quiet” and “mature” arguably indicate that children are not welcome.

Race/Color

Ads stating a preference for one race or another are clearly unlawful. But these types of ads can be blatant (“no blacks”) or subtle (“nice, Asian community”). Either way, they are unlawful.

Religion

Advertisements that openly express a preference (“Christian couple preferred”), limitation (“Muslims only”), or discrimination (“no Jews”) are all illegal. Likewise, ads that describe current residents (“nice Jewish community”) or the neighborhood (“near the mosque”) may be illegal, for they seem to indicate a preference for a certain type of tenant.

Sex

When it comes to advertisements that state a preference for one sex over the other, then there is an exception. But first, let’s see what a discriminatory ad based on sex might look like. An ad that states “female preferred” is a classic example of a discriminatory ad.

But if the vacancy that is being announced is one for a roommate, then it is okay for the ad to limit applicants to one sex. It is not illegal for a person to look for a roommate of a certain sex. This makes sense. Imagine two young, college women who rent an apartment off campus. One of the women graduates and the other woman wants a new roommate. She is not required to rent to the first person who meets the qualifications (sorry, guys). She can lawfully choose to rent only to another woman.

National Origin

In this day and age, national origin has become a hot political issue. Thus ads that state things such as “no immigrants” or “no foreigners” or “Mexicans preferred” will likely be deemed illegal by courts. Advertisements that appear in a language other than English may be illegal because they are indirectly indicating a preference for someone who speaks that language. For example, if an ad only is in Korean, then it may be proved that the landlord illegally preferred Koreans over other tenants. Also, ads that describe current residents (“quiet Korean community”) or the neighborhood (“predominantly Chinese neighborhood”) may be illegal.

Handicap/Disability

When the Fair Housing Act was amended in 1988 to add familial status as a protected category, Congress also added the category of handicap as a protected category. Nowadays, it is more common to use the term “disabled” instead of “handicap,” but the technical category is handicap.

At any rate, advertisements that state such things as “no wheelchairs” or “able-body people only” or “must be able to live independently” are unlawful. Likewise, ads that describe the apartment complex as unable to accommodate people with disabilities (e.g., “units are not accessible”, “no pets, even seeing eye dogs”) are also unlawful.

Conclusion

If you have run into a discriminatory ad, then what can you do about it? First, you should report the unlawful ad to publisher of that ad (whether that be Craigslist, an internet provider, social media, newspaper), so that it can be removed.

Next, you might want to complain to a local fair housing agency, so that it can investigate the matter. The fair housing agency may have had other complaints about this landlord, so it may decide to pursue an action against the landlord.

Finally, Thomas Jefferson said, “Evil triumphs when good men do nothing.” Put simply, unless potential tenants do something about landlords who make discriminatory ads, then they will continue to do so. If you want to do something, then you may choose to file a claim with HUD (202) 708-1112 or California’s Department of Fair Employment and Housing (“DFEH”) (800) 884-1684. Or you can contact a fair housing attorney to assist you in filing a claim of housing discrimination against the landlord. The choice is yours.

“Those Are The Rules That You Signed”

When most people look for a new place to live, they are thinking about what the new place has to offer. Does it have a pool? Is there a gym on site? How far away is the local grocery store? Are there good schools nearby? Is there a play area for the kids? Is public transportation available? Is the rent fair?

Put simply, most people don’t think much about what an apartment complex’s rules are before they sign the lease. And this is particularly true for families with children. Besides, who has the time to read through a whole bunch of rules while the manager is waiting for you to sign the lease? I never did when I was a tenant.

But then one day the manager shows up at your apartment and says, “I found your child sitting outside without adult supervision. That’s against the rules.” “The rules?” you say, “he’s 15 years old. He’s not doing anything wrong.” “Sorry,” says the manager, “but if he’s going to be outside, then you have to supervise him.”

To be frank, most parents don’t have to time to be babysitting 15-year-olds who simply want to go outside and hang out with their friends after school.

So what is a parent supposed to do if they run into these type of rules? On the one hand, if parents tell their children to simply disobey the rules, then they run the risk of being served a warning notice, or they may even face an eviction.

On the other hand, often when a parent tries to reason with a manager about such rules, then the manager simply replies, “I’m sorry, but those are the rules that you signed.”

Put simply, families with children are often put between a rock and a hard place. If they disobey the rules and allow their children to be outside without adult supervision, then they run the risk of being evicted for breaking the rules. But if they obey the rules, then they are forced to make their children stay inside all the time.

Isn’t there a better choice? Yes, there is. While apartment complexes are allowed to enact and enforce reasonable rules, the type of supervision rule mentioned above has been found to be unreasonable (and therefore illegal), even if you signed them! Unfortunately, it normally takes the help of a lawyer to get an apartment complex to realize that it needs to change its rules. If you are in that situation, then, please, get in touch with us.

Do I have to Pay My Rent? Yes!

In this crazy time, some are wondering if they have to pay their rent. Yes, you have to pay your rent . . . unless . . . there is a moratorium on rent payments. Moratorium? What’s that? A moratorium is a legally authorized period of delay in the payment of a debt. In other words, if a moratorium is in effect, then you don’t have to pay your rent . . . right now. Even if there is a moratorium in effect, then you will have to eventually pay the rent. You do not simply get to live where you are living rent free.

This poses a problem for those renters whose incomes have been taken away by the coronavirus. So what is a renter to do? First and foremost, don’t waste any unemployment or stimulus check that you might receive. If at all possible, pay your rent now. Because if you don’t pay your rent now, then you are going to owe it later. And if you don’t have it later, then your landlord is going to be able to rightfully evict you.

But what about moratoriums on evictions? How do those work? Again, a moratorium is a legally authorized period of delay. Eventually, the delay comes to an end, and the evictions can begin. In short, a moratorium on evictions does not mean that you give to live rent free. It just means that your landlord can’t evict you right now. Your landlord will be able to eventually evict you for not paying rent, even if you did not have the ability to make your rent payment.

In the end, it all sounds rather brutal, but it is something that we all have to live through. So, make sacrifices where you can and ask your landlord if you could possibly pay some rent now and make up the difference in the months ahead. For example, you might offer to pay 75% of your rent now and make up the difference by paying an extra $250/month (or whatever it might be) once you get back to work.

Landlords should be willing to work with their current tenants because if they don’t, then they’ve got to pay to evict them and then start all over again. Expect landlords to be reasonable, but, unfortunately, they are not required to be reasonable.

DOT-TO-DOT. “IS IT A DOG?” “NO, IT’S HOUSING DISCRIMINATION”

Do you remember when you were a kid and you played dot-to-dot? You’d start connecting all the dots and you’d start to have some idea of what the figure was going to be. Eventually, after you connected enough dots, you could see the figure: “Oh, it’s a dog!”

Figuring out whether you have been discriminated against under the Fair Housing Act or California’s Fair Employment and Housing Act is a lot like dot-to-dot. So, let’s see if any of the “dots” below look familiar. Under the Fair Housing Act, it is against the law:

• For a landlord to refuse to rent to a person because of that person’s race, color, religion, national origin, sex, familial status, or disability;
• For a landlord to tell you an apartment or a house is not available for rent when it actually is available for rent;
• For a real estate agent to intentionally show you homes only in certain neighborhoods, basically because they don’t want you to buy a home in another neighborhood;
• For a landlord to have different terms, conditions, or privileges for renting an apartment or a home;
• For a landlord to advertise housing to preferred groups of people only;
• For a landlord to refuse to make reasonable accommodations for persons with a disability if the accommodation may be necessary to afford such
person a reasonable and equal opportunity to use and enjoy a
dwelling;
• For a landlord to harass, coerce, intimidate, or interfere with anyone
exercising or assisting someone else with his/her fair housing
rights.

In the end, if you see some of these “dots” starting to connect together, then realize that you may be a victim of housing discrimination. Know also, however, that one “dot” can be enough to prove housing discrimination, so you don’t have to wait until all the dots are connected before calling for help.

When Does 5 Days Equal 60 Days? Coronavirus, Rent Payments, and Executive Order N-37-20, Part 2 (Sort of)

23 days after issuing his first executive order proclaiming a State of Emergency in the State of California, Governor Newsom issued a second executive order that brought further relief to California tenants. Below we will take a look at the significance of his order.

5 = 60?

Normally, when a landlord personally serves an unlawful detainer action (i.e., an eviction) on a tenant, the tenant has a mere five days to file a response to it. (A tenant gets 15 days to respond, if they are served by mail.) As such, tenants often scramble to find a lawyer for help. Sometimes, sadly, tenants simply don’t know what to do and just let the five days pass without doing anything. This puts the eviction in the fast lane.

Governor Newsom has done something significant for tenants in executing this latest executive order. What he has done is to give tenants 60 days to file a response to an unlawful detainer. Why is that significant? Because it means that the landlord cannot finish the eviction process in short order. As a result, the tenant cannot be evicted for at least 60 days, regardless if the tenant is paying rent or not. In fact, the tenant will not be evicted for quite some time because once a tenant files a response to an unlawful detainer action, then the matter is set for trial. The landlord then has a number of hurdles to jump through before being able to lawfully evict a tenant.

In the normal process of things, an unlawful detainer is set for trial a week or two after the tenant files a response. Trial is then conducted. It doesn’t last weeks or days. It usually lasts but a few minutes. If the landlord proves its case (it usually has no problem proving its case), then judgment is entered in favor of the landlord. The landlord then gives the necessary paperwork (a writ of possession) to the marshal, and the marshal serves the paperwork on the tenants informing the tenants that they will be physically removed from the property if they have not moved out by a certain date. This date is usually very sudden.

Governor Newsom’s order, however, forbids the enforcement of any writs while the Governor’s executive order is in effect (for qualified evictions). So when does the Governor’s order end? Right now, it ends on May 31, 2020. That’s obviously subject to change. Regardless, what this means is that a landlord cannot ask a marshal to enforce an eviction until at least June 1, 2020.

But can a landlord begin an eviction before that time? Yes, but then the landlord has to wait for the 60 days to pass from the service of the unlawful detainer on the tenant before having the matter set for trial. Practically speaking, however, 60 days from April 1st is May 31, 2020, so that is not going to be a real issue.

What’s the Catch?

While the Governor’s executive order is helpful, it does come with some prerequisites: 1) it only applies to evictions for non-payment of rent; 2) the tenant has to notify the landlord in writing (no later than 7 days from when rent is due) that the tenant needs to delay some or all of the rent because of an inability to pay due to reasons related to COVID-19; and 3) the tenant has to retain verifiable documentation explaining the tenant’s changed financial circumstances that resulted in the tenant not being able to pay the full rent. The verifiable documentation ultimately has to be turned over to the landlord. In other words, this is not a “take my word for it” type of defense.

What Qualifies as “Reasons Related to COVID-19″?

No, binge watching CNN or Fox News coverage of COVID-19 does not count! Obviously, if the tenant or one of the tenant’s children has contracted coronavirus (or suspected to have contracted the disease), then that counts. Income reduction caused by COVID-19 also counts. And a tenant whose children’s school was closed as a result of coronavirus will have a reason related to COVID-19, but only if the tenant needed to miss work to care for the child. So, if a tenant’s 17-year-old child’s school is closed, then it is going to be hard to convince a court that a tenant would need to miss work to care for that child. (Yes, litigation is looming regarding how old a child needs caring if home from school.)

When Should a Qualified Tenant File a Response to an Unlawful Detainer Action?

While a qualified tenant now has up to 60 days to file a response to the unlawful detainer action, the LAST THING IN THE WORLD that the tenant wants to do is to respond immediately. Why? Because the sooner the tenant files a response to the unlawful detainer lawsuit, the sooner the trial date is set. And the sooner the trial date is set, then sooner the tenant is going to lose. Yes, there is still some protection because the marshal will not be able to serve and enforce the writ of possession, but there is no reason for a tenant to put his or her eviction on the fast track. Some courts, in addition, have pushed back trial dates, but there is no reason for a tenant in distress to respond until the last possible date.

Evictions (During a State of Emergency) that were Already in the Process:

When the Governor’s two executive orders are read jointly, then a landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction, and the marshal will be able to serve the writ of possession (effectively ending the tenants’ occupancy) because those tenants did not meet the prerequisites of the new law.

Does Anyone have to Pay their Rent?

Yes, people who don’t qualify have to pay their rent on time. If they don’t, then they will face eviction. Indeed, Governor Newsom’s executive order states expressly: “Nothing in this Order shall prevent a tenant who is able to pay all or some of the rent due from paying that rent in a timely manner or relieve a tenant of liability for unpaid rent.” Tenants who can–but don’t–pay rent will be subject to eviction, as normal. And they won’t get 60 days to respond.

Coronavirus, Rent Payments, and GOVERNOR NEWSOM’S Executive Order N-28-20

You may have recently heard that California Governor Gavin Newsom issued an executive order concerning evictions and foreclosures. But what exactly did it say with respect to evictions? (We’ll leave foreclosures for another day.) Let’s address the main issues.

The first item in the executive order states: “The time limitation set forth in Penal Code section 396, subdivision (f), concerning protections against residential eviction, is hereby waived.” (Cal. Penal Code section 396 will be discussed in depth below.)

What good is the first item of the order? It only seems to extend the time before a landlord can raise rents after evicting a prior tenant. The first order continues, “Those protections shall be in effect through May 31, 2020.” Put simply, this provides a disincentive for landlords to think about evicting tenants and raising rents. That practice is prohibited by the Governor’s executive order until May 31, 2020 (with possible extensions).

The second item of the order basically says that local government is allowed–but not required–to limit when a landlord cannot evict a tenant. Basically, the Governor is passing the ball to local government to let them make the unpopular decision (unpopular, that is, from the landlords’ perspective) to stop evictions. This way, the Governor can tell all the big donors, “Hey, I didn’t forbid you from evicting delinquent tenants; the local government did.”

All kidding aside, if the local government takes no action to delay evictions, then evictions can proceed as normal. This likely will come as a surprise to most California tenants.

But even if the local government decides to implement limitations on evictions, it is very limited in the kind of evictions that it can limit. For the executive order only permits local governments to limit evictions when two conditions are met: 1) the basis for the eviction is nonpayment of rent, which is basically caused by a substantial decrease in a household’s income; and 2) the decrease in household income was caused by the COVID-19 pandemic AND it is documented. Thus the only evictions that a local government could choose to stop would be those where the tenant was unable to pay rent because the tenant’s rent was substantially reduced as a direct result of the COVID-19 pandemic and there was documentation to support the claim.

While there will be many people who actually will fit the bill, it does not mean that the tenant who was already out of work, and thus unable to pay the rent, gets to just stay in place until the pandemic passes. That tenant can be rightly evicted, even if the local government gets around to implementing limitations on evictions. So, too, may the tenant who lost a part-time job be evicted if the tenant did not have a substantial decrease in household income. (Do you think that some lawyers and judges are going to have a fun time figuring out what that means?)

The Governor’s order expressly states that the only evictions that the local government can stop are the ones talked about above. So, the local government CANNOT ban all evictions at this time.

Next, the Governor’s order is very clear: “Nothing in this Order shall relieve a tenant of the obligation to pay rent, nor restrict a landlord’s ability to recover rent due.” What does this mean? First, even if the local government limits evictions, this is not a get-out-of-paying-rent-free card. Tenants who have not had a substantial decrease in their household income still have to pay rent. The Governor’s order is meant to protect certain people who have been substantially impacted by the coronavirus, and no one else. Next, as we have discussed, the executive order is not meant to restrict a landlord from being able to collect rent that is due. In other words, if a tenant did not lose a job and thus can pay rent, but chooses not to, then the landlord can seek to collect that rent, and even evict that tenant. In the end, the Governor’s executive order protects some tenants, but not all.

Cal. Penal Code §396

Rent Increases During a State of Emergency:

In the State of California, during a state of emergency, it is illegal for a landlord to increase a tenant’s rent by more than ten percent, except for in limited situations, for the first 30 days following the proclamation. Cal. Penal Code §396(f). That’s right, it’s a crime. It is perfectly fine, however, for a landlord during that 30-day period of the state of emergency to increase an existing tenant’s rent by up to ten percent. So, if a landlord increased the tenant’s rate from $1,000/month to $1,100/month, then that ten percent increase would not be unlawful under Cal. Penal Code §396(f). 31 days after the proclamation or declaration, all bets are off, and the rules go back to normal. Thus if two months after the state of emergency is declared a landlord increases the tenants rent from $1,000/month to $1,200, then such a rent increase would not violate Cal. Penal Code §396(f). It doesn’t mean that the rental increase wouldn’t violate any other law (e.g., perhaps a local rent control ordinance), but it would not violate Cal. Penal Code §396(f).

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

It is also illegal for a landlord to start an eviction during a state of emergency and rent or offer to rent to another person at a rental price greater than the evicted tenant could be charged. In other words, a landlord cannot evict a tenant who is paying $1,000 a month for rent, and then turn around and immediately rent the same place to another tenant for $1,200 a month, for that is a greater amount than the landlord could have been charged. Remember, it would be okay for a landlord to raise a tenant’s rent by up to ten percent.

Note, this does not mean that a landlord is forbidden from evicting a tenant who does not pay rent. It simply means that the landlord cannot evict a tenant for the purpose of immediately getting a new, higher-paying tenant. Cal. Penal Code §396(f). But 31 days after the proclamation or declaration of the state of emergency, all bets are off, and the rules go back to normal.

When might a situation arise where a landlord is trying to evict a tenant who is not late on rent? It might occur where a tenant is on a month-to-month tenancy. (Many tenants are on month-to-month tenancies without even realizing it, for if a term lease expires, then, in most cases, it automatically becomes a month-to-month tenancy if a new term lease is not signed.) The landlord could give the tenant the required notice to terminate the tenancy (30 or 60 days, depending on how long the tenant has been renting). If the tenant does not timely move out after receiving the notice to terminate the tenancy, then the landlord normally has the right to start the eviction process. But that is not true during a state of emergency, if the reason the landlord is terminating the tenancy is to get a new tenant to pay a rent that is more than ten percent higher than the old tenant’s rent.

Evictions (During a State of Emergency) for the Purpose of Selling the Rental Property:

If during a state of emergency, however, a landlord is terminating the tenancy because, for example, the landlord wants to put the house up for sale, then that is perfectly fine. That is not illegal. Of course, if the landlord says one thing and does another, then the landlord may be guilty of a crime, if the landlord raises the rent on the new tenant by more than ten percent within the 30 days following the proclamation or declaration of the state of emergency.

Let’s imagine a landlord who truly wants to sell the rental property. The landlord evicts the tenant. But then the landlord realizes two months later that the market has tanked, then there is nothing illegal about a landlord putting the house up for rent in excess of ten percent greater than the last tenant’s rent. By way of example, if the evicted tenant were paying $1,000/month for rent, and the landlord was now offering that same place for rent at $1,500/month, then there would be nothing illegal about that because it was more than 30 days following the proclamation or declaration of the state of emergency.

Evictions (During a State of Emergency) that were Already in the Process:

A landlord who was in the process of evicting a tenant when the state of emergency was declared is allowed to finish up the eviction and set the new rental rate. In that situation, the landlord is not limited to raising the rent by only ten percent. Cal. Penal Code §396(f).