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Legal Q & A By- Richard Beckman

Posted on 01. Aug, 2020 by in all

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Question 1: I know someone asked this last month, but what is the latest status of the landlord’s right to require the tenant to pay rent or move out during the COVID 19 crisis? What about other grounds to terminate a tenancy?
Answer 1: As discussed in last month’s response to that question, for all of California, evictions for non-payment of rent are extremely limited, based on the March 27 EXECUTIVE ORDER N-37-20 issued by the Governor.

That order is the baseline of tenant protections related to evictions for non-payment of rent. That order states that even if a local court accepts an unlawful detainer for filing (which most are not, discussed below), the time allowed for the tenant to file a response is extended by 60 days, if the tenant is served while the Order is in effect (the current Order is to be in effect through July 31). The protection only applies if the tenant was current with rent prior to the date of the Order (March 27), notified the landlord within seven days of the rental due date of the inability and reason for non-payment, and can document that the reason for nonpayment is based on the impact of the virus on the tenant’s economic situation.

Supplementing the state order, a review of local ordinances confirms that in most cases, evictions are also stayed for any reason “except when the tenant poses an imminent threat to the health or safety of other occupants of the property.” 

Most ordinances also will prohibit later evictions for non-payment of rent that accrued during the applicable state of emergency, but allow for collection efforts of such unpaid rent after the grace period (anywhere from 3-12 months) expires. The specific ordinance for each city and county has to be carefully reviewed to insure the owner or property manager is ‘up to date’ on the existing restrictions on enforcing the tenant’s obligations, or taking any other action that is related to seeking possession of the unit.

The expiration dates of those local ordinances are not identical and each city or county’s provision needs to be checked, usually by an online search of “Covid-19” and the city or county and ‘eviction or unlawful detainer”.
Meanwhile, the California Supreme Court’s April 6 order, applicable to all county courts, continues to prohibit new eviction actions (other than those for public health or safety), or defaults in actions that were filed prior to the order, until August 31, 2020, and increasing the time for a trial date, once requested, from 20 days to 60 days. The Chief Justice had scheduled a judicial council meeting for June 10, at which time it was widely anticipated that she would amend the April 6 order to expire August 3, which would have been a tremendous boost to landlords. However, at that June 10 meeting, the Chief Justice simply ‘punted’ and explained that “After discussions with the Governor, legislative leaders, and Judicial Council members—as well as hearing from residents with many different viewpoints—I have suspended for the time being the vote on the emergency rules dealing with evictions and judicial foreclosures. I believe the executive and legislative branches will need more time to sort through various policy proposals.” 

The Chief Justice essentially is waiting for the legislative branch to take action. As she stated, “As I mentioned in April when we first adopted temporary emergency rules and took other actions, we are at a point with the pandemic with no guidance in history, law, or precedent. When the Governor issued his executive order providing me, as chairperson of the Judicial Council, and the council with the authority to protect the public during the pandemic, I promised the Governor that we would assume this responsibility with the utmost care. The rules we promulgated are temporary measures designed to protect the health and safety of the public while ensuring that access to justice remains available. The judicial branch cannot usurp the responsibility of the other two branches to deal with the myriad impacts of the pandemic. At the beginning of the statewide shelter-in-place orders, the Legislature was not in session and the Judicial Branch was a constitutional partner with the Executive Branch in adopting temporary, emergency rules designed to protect the public and our justice system. We will work with the Governor and legislative leaders on an updated time frame for amending, sun setting, or repealing the Judicial Council’s rules, orders, or other actions taken under the authority assigned to us under the Governor’s Executive Order.”  So, stay tuned for updates…

 

Question 2: Per our lease agreement, tenants are required to provide us with 30 days’ notice to vacate the premises. However, if the tenants decided to leave prior to 30 days, are we legally obligated to refund them the pro-rated rent as of the actual move out date as opposed to the 30 days’ notice?
Answer 2: If the tenant vacates with less than 30 days’ notice to the lessor, the tenant – generally speaking – remains liable for the rent for the 30-day period. There are, as you might imagine, always exceptions to the rule, but that is a relatively straightforward one and will be the general rule absent an agreement to the contrary, or facts justifying a tenant ‘breaking’ the lease by providing less than the standard 30 days’ notice.

 

Question 3: Our tenant was supposed to give 60 days’ notice to move out. He only gave 10 days’ notice and moved out at the end of May. Since he is liable for the rent through July 20th (end of 60 days), does he have the right to use the property until then, even though he moved out and gave us his key. He still might have an extra key to the property.
Answer 3: Similarly, to the question above, absent a lease requirement (which it seems your lease has), a tenant only needs to give 30 days’ notice of his or her intention to terminate a month to month lease. And once the tenant returns the keys and confirmed he or she has moved out, the tenant has surrendered possession and any right of occupancy. At that time, it is generally recommended that the locks should be changed, to avoid any such issue as the tenant trying to return. However, that does not necessarily mean the tenant is liable for the rent for the remaining days, since once the tenant returns possession to the owner (by, for example, returning the keys with a statement of intent to vacate the unit), the owner has a duty to ‘mitigate the damages’, which means taking reasonable efforts to re-rent the property to new tenants. If the owner is successful in having new tenants start paying similar rent during the remainder of the prior tenant’s 60-day notice period, the prior tenants are excused from paying rent for that remaining period.

 

Question 4:  Does the new order from Governor Newsom regarding evictions include Santa Rosa, CA? That is, no evictions for any reason?
Answer 4: The Newsom emergency order is statewide, but does not prohibit evictions for reasons other than COVID-related rent defaults. Although the legislature is considering statewide laws to broaden the scope of the emergency order, it is the local laws and the state court eviction measure that are more restrictive. While Santa Rosa does not seem to have enacted its own eviction restriction ordinance, Sonoma County has which applies to Santa Rosa, and is similar to the state-wide order, but does not appear to contain any eviction restrictions for reasons other than nonpayment of rent. Also, keep in mind that the Sonoma superior court will not process any evictions other than for public safety until at least August 31 (the currently set date, which is subject to change).

 

Question 5: What should I do if my tenants don’t get along? One tenant is complaining about his roommate accusing him of being disrespectful to him. They have a problem sharing the fridge and the common space.

Answer 5: Unless one tenant or the other is acting in such a fashion as to create a serious nuisance to the other, or the neighbors, by, for example, threats of, or actual, violence, or other disruption, there is not a lot that can be done other than letting the tenants work it out between themselves. If both tenants are the problem, then you may need to take action against them both as a collective nuisance.

 

Question 6: My lease for a condo in Silicon Valley contains a $5,000 buy-out provision in the event my tenant vacates before the end of the lease term. It also contains a hold-over provision increasing the rent in case the tenant refuses to sign a new lease. Tenant expressed willingness to sign a new 10-month lease, but also has intimated that he may want to move in a few months. Given the slow rental market caused by the pandemic, do you recommend omitting the buy-out provision such that tenant is liable for rent until the unit is re-rented? Would a new lease omitting the buy-out provision be considered “substantially similar” to the current lease? And importantly, if the tenant holds over, refuses to sign a new lease, is the buyout provision in the current lease enforceable? Thank you for considering my inquiry.
Answer 6: While your question is beyond the scope of the Q&A forum, which does not allow for specific advice to a specific situation, a general response would note that your inquiry stated your unit is subject to rent control, but the San Jose laws exempt condominiums from both rent and eviction control. Given that, you have much more leeway to reach an agreement with the tenant as to your questions. Whether a ‘buyout provision’ is an enforceable lease term probably depends on whether it passes an examination of what is called a ‘liquidated damages’ provision. This is a state law that applies to residential tenancies which govern whether such a provision is a reasonable estimate of the owner’s anticipated losses from a breach of the lease by the tenant. A $5,000.00 fee on an apartment of roughly the same value would probably pass that exam, as long as there is a statement in the lease regarding the discussions had between you and the tenant as to that issue. 

 

Question 7: One of our units requires essential maintenance (fix water leak) and another unit requires non-essential maintenance (fix towel rack and cabinet door hinge). During the COVID-19 pandemic, how can a landlord protect themselves from lawsuits that might arise if a maintenance worker is accused of transmitting the virus to a tenant or a tenant is accused of transmitting the virus to a maintenance worker?  For example, is this issue covered by the business insurance of the maintenance service company we ask to do the maintenance? Is there a liability waiver we should have tenants and maintenance workers sign?  Are there preventative measures that we should require of both tenants and maintenance workers (e.g. masks, gloves, distance, cleanup procedures before and after, etc.)? Should we tell tenants we are deferring non-essential maintenance requests until the pandemic is abated?

Answer 7: All good questions. Regarding insurance, I would reach out to your carrier and see if they have an opinion. But any licensed contractor should have a comprehensive general liability policy that you would want to make sure applies to any claims brought against you that arise from the contractor’s work.

Legal issues about transmitting the virus between workers and tenants are going to play out over the coming months and years. It will likely be based on a negligence type claim, and all that can be done to avoid such claims is to act as ‘reasonably’ as one possibly can, given that is the standard for a claim of negligence (i.e. the failure to use “reasonable, or due, care” in any given situation). In this situation, it might mean deferring non-essential maintenance. 

But for essential maintenance, which obviously must be done, the contractor will, (presumably, but must if not already), have developed the now ‘standard’ virus protocols of ensuring to the extent possible their workers are not infected, that when they enter the home they are wearing the proper personal protective equipment (PPE), that, perhaps, they provide the occupants with a questionnaire as to whether any occupant is showing any COVID symptoms, and provide the occupants with the contractor’s own completed questionnaire on that same topic.

And then having a protocol for disinfecting any part of the premises they came in contact with.

 I’m not sure what more can be done. The concept of a liability waiver is a very interesting one. But I don’t believe it would be enforceable, given that the tenant’s right to habitable premises cannot be waived. So, employing ‘best practices’ is the one most likely to inhibit spread of the disease, and also limit one’s exposure to that other virus (i.e. litigation). 

 

Question 8: I read that starting July 1 owners have to provide new and existing tenants with some notices under the state rent control law that took effect at the beginning of the year. Can you remind me what they are?
Answer 8: Thank you for reminding us that the state rent control law (AB 1482) requires certain notices to tenants as soon as July 1. AB 1482 applies to all housing not already subject to local non-rent control. The law exempts certain properties, and a primary exemption is for single family homes or condos (with certain restrictions). However, the exemption will only apply if the owner provides specific written notice to the tenants about the exemption. For new tenants, the written notice must be in any new lease starting July 1, 2020. For existing tenancies, notice may be given to the tenant     as an addendum. If the specific notice is not provided, landlords risk losing this exemption all together. There are also requirements that tenants, new and existing, be provided notice of the existence of AB 1482. For new tenants, the notice must be given by July 1, and by August 1 for existing tenants, and may take the form of an addendum to the existing lease. Finally, for any owner who may want to ‘owner-occupy’ the premises, AB 1482 requires that any lease entered into after July 1 provide the tenants with a notice that preserves the right to evict the tenant for the owner’s occupancy. AOA has both forms on their web site.


Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 510-548-7474; email rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com.

 

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