Updated on April 23, 2020
Can a landlord evict tenants before coronavirus or the stay at home order lifts? Can they begin the process of eviction before the pandemic is over? Here is what you need to know.
In California, an eviction action is called “unlawful detainer”. An unlawful detainer occurs when a tenant, without the permission of their landlord, remains in possession of a premises after the landlord has terminated the tenancy. Generally, before a landlord may properly initiate an unlawful detainer action, the landlord must provide the tenant notice. Then, if a tenant refuses to move out, the landlord then files a complaint with the Court. (California Code of Civil Procedure Section 1166a(a).) However, due to the Coronavirus pandemic, some of these rules have temporarily changed. Furthermore, these issues have risen to the forefront of the news as troubled economic times leave many tenants and landlord at an impasse.
This blog will first discuss the general notice requirements for an unlawful detainer action. Then this blog will discuss the tenant-friendly changes implemented by the Court leadership as a response to the Coronavirus pandemic. Finally, this blog will briefly examine the efficacy of notices served during California’s state of emergency. While this blog primarily focuses on residential tenancies, many of the issues discussed are applicable to commercial tenancies. If you are a residential or commercial landlord, you may benefit from consulting with an attorney.
Before a landlord may successfully bring an unlawful detainer action, in most circumstances (there are a few exceptions) a landlord must serve a tenant with written notice of termination of the tenancy. (Code Civ. Proc. section 1946.1.) The amount of notice required depends on a number of variables. These variables include whether landlord is re-taking possession for himself or herself, whether the tenant occupies the premises on a fixed-term or a non-fixed term, and how long the tenant has been in possession.
Fault-based evictions are generally based off the tenant’s breach of the lease. These are also called “just cause” evictions. Examples of fault-based evictions include a tenant’s failure to pay rent, or a tenant’s breach of a material term in the lease. Sometimes, a tenant will have an opportunity to “cure” the violation. (Code Civ. Proc. section 1161(3).) Before a landlord may terminate a tenancy for a fault-based eviction, the landlord must provide the tenant with a minimum of a 3-Day Notice. (Code Civ. Proc. section 1161.)
Generally, after the notice period runs, the landlord may begin eviction proceedings by filing a complaint with the court. A tenant who refuses to leave is called a “hold over” tenant. The unlawful detainer process will culminate with a trial. However, amidst the backdrop of the Coronavirus pandemic, many of these rules have been temporarily suspended by California lawmakers and Courts.
On April 6, 2020, the California Judicial Council adopted 11 Emergency Rules to deal with the Coronavirus pandemic. The Emergency Rules can be accessed here. Emergency Rule 1 specifically addresses unlawful detainer actions and prohibits a Court from issuing a summons on a complaint for unlawful detainer. (Rules of the Court, Emergency Rule 1(b).) Generally, this means that a landlord cannot successfully file a complaint while Emergency Rule 1 is in effect. There is an exception if the action is “necessary to protect public health and safety.” (Id.) However, this exception will likely be rarely granted and it will require a case and fact specific analysis. Unless amended or repealed, Emergency Rule 1 will stay in effect until 90 days after Governor Gavin Newsom declares that California is no longer in a state of emergency. (Emergency Rule 1(e).) Hopefully, this will not last long.
So… can California landlords evict tenants before coronavirus ends? Emergency Rule 1 protects tenants during the economically uncertain times of Coronavirus. In a sense, it is the Judicial System’s counterpart to Gavin Newsom’s Executive Order N-37-20 (“N-37-20”). Executive Order N-37-20 can be accessed here. Specifically, N-37-20 extends the time some tenants have to respond to an unlawful detainer complaint by 60 days. Specifically, N-37-20 applies to tenants who are not able to make rent payments due to economic burdens related to the Coronavirus pandemic. (Executive Order N-37-20(1)(b).) In normal times, a tenant has five days to respond. (Code Civ. Proc. Section 1167).)
Cities have also implemented similar measures. (See Los Angeles Ordinance No. 186585, Section 49.99-2(A).) In fact, Los Angeles’ rules are even stricter than the State’s. For example, Los Angeles has completely banned owners from exercising no-fault evictions during the emergency period. (Los Angeles Ordinance No. 186585, Section 49.99-2(B) Further, Los Angeles prohibits owners from evicting commercial tenant for non-payment of rent for reasons related to the COVID-19 pandemic. (Los Angeles Ordinance No. 186585, Section 49.99.3.)
As discussed, Emergency Rule 1 prohibits a landlord from filing an unlawful detainer action during the Coronavirus emergency period (plus 90 days). However, it appears a Landlord may properly serve a Notice to Quit in some cities and in some circumstances. The landlord simply won’t be able to enforce the Notice until the court reopens and the sunset period on Emergency Rule 1 runs.
For example, Los Angeles Ordinance No. 186585, Section 49.99-2(A) temporarily prohibits landlords from evicting tenants for non-payment of rent due to the economic burdens of COVID-19. It also prohibits landlords from beginning no-fault eviction proceedings. However, it is unclear to what extent a Notice to Quit may be binding in specific circumstances. For example, if a tenant fails to pay rent and does not have a Coronavirus-related excuse, a landlord may be able to post a 3-day Notice to Quit in an attempt to reserve the landlord’s right to enforce the Notice when the Courts do re-open. Also, determining what it means to begin a no-fault eviction proceeding may be something that could lead to a legal dispute. After all, in order to begin a no-fault eviction, often times you are still required to serve notice. To better understand the nuances, we suggest you consult with an attorney to see whether it makes sense to even serve the notice.
Another issue, what if a tenant on a one-year lease ending June 1, 2020 elects not to renew the lease? May a landlord serve a 30-Day Notice on May 1, 2020 to protect his or her right to re-take the premises once the Courts re-open. While this may fall under the category of “No Fault” evictions prevented by many municipalities during the state of emergency, a landlord may be able to preserve his or her rights for when the courts re-open. Ultimately, it depends on the applicable ordinance. In San Francisco, for example, such a Notice to Quit may be binding. (Roberts, Chris, “How To Get Rent Relief During The Coronavirus Crisis“.)
Landlords and tenants face many questions in the rapidly changing landscape of landlord-tenant law during Coronavirus. Many tenants are scared and wonder “can landlords evict tenants before coronavirus ends”? Each situation is unique and requires an individual analysis based on the specific facts. The attorneys at Schorr Law have years of experience litigating landlord-tenant issues. If you are a residential or commercial landlord with a Coronavirus-related real estate issue, contact an attorney at Schorr Law for a consultation today.