As many of you know, Governor Newsom signed the COVID-19 Tenant Relief Act of 2020 (AB 3088) in August of last year. This legislation provided protection for tenants who are one or more months behind in rent. Additionally, it enumerated responsibilities for landlords regarding their tenants. The provisions in that legislation were set to expire in February and March 2021. However, on January 29, 2021, Governor Gavin Newsom signed SB 91. SB 91 extended the provisions of the COVID-19 Tenant Relief Act of 2020 (AB 3088). Let’s take another deep dive into the COVID-19 Tenant Relief Act of 2020 and examine how SB 91 changes it.
Eviction Protection for Tenants
The centerpiece of the legislation was the eviction protection provided to tenants. Previously, a landlord was required to serve those tenants (who missed a rent payment between March 2020-August 2020) with a notice regarding their protections under the act. This was also a prerequisite to any unlawful detainer proceeding.
- SB 91 changes the March 2020 and August 2020 timeframe to March 2021 to June 30, 2021.
- Landlords must provide the notice to the tenant by February 28, 2021.
You may remember that landlords could file an unlawful detainer action. To do so, they were required to serve each tenant with a 15-day notice to pay or submit a declaration stating they cannot pay their rent because of COVID-19. If the tenant submitted the declaration, any back rent incurred between March 2020 and August 2020 need not be repaid until March 1, 2021.
In addition, any tenant who submitted the declaration would only have to pay 25% of their rent between September 2020 and January 2021. Tenants can pay the 25% in one lump sum on January 31, 2021, or in payments. If tenants chose to pay in payments, they must have paid the 25% balance by January 31, 2021.
If the 25% was not paid by the January deadline, a landlord could commence eviction proceedings on February 1, 2021, for all back rent.
In addition, a tenant who was served the notice and did not respond could be evicted by an unlawful detainer, immediately.
However, if the unlawful detainer judge determined that the reason for failing to submit the declaration was a mistake or otherwise, they could grant the same protections under the act without requiring the declaration.
As expected, SB 91 changed all of this by extending the above-mentioned deadlines. Under SB 91, the tenant must pay 25% of the rent between September 2020 and June 30, 2021. The tenant can also still pay the lump sum or monthly payment. If the tenant had previously filed a declaration on the landlord and was paying the 25% monthly or was waiting for the January 31, 2021 deadline, they now have until June 30, 2021.
If the tenant fails to pay the 25% by June 30, 2021, an unlawful detainer proceeding can commence. However, if a tenant (who was provided both notices) fails to serve the landlord with the required declaration, the landlord is free to file an unlawful detainer action immediately. Although, bear in mind the current CDC order that established a nationwide eviction moratorium. This will likely prevent the immediate unlawful detainer action allowed under the California act.
To reiterate, the protections under AB 3088 only apply to evictions based on unpaid rent resulting from COVID-19. A landlord can still move forward with just cause evictions under AB 1482. To clarify, the only caveat to this is that some local cities still have eviction orders in place. Therefore, be sure to check whether they have expired and are applicable.
Keep in mind that paying the 25% does not forgive the past due rent. Paying the 25% and serving the declaration are required to prevent eviction. The landlord is free to serve a small claims action against the tenant. AB 3088 specifically provides that the landlord can bring a lawsuit for all unpaid rent against the tenant in small claims court. Landlords can choose to do this regardless of the amount of unpaid rent. But how does SB 91 change this? A small claims action against the tenant cannot begin until August 1, 2021.
One new item that SB91 introduced was in response to the COVID relief legislation passed by Congress in December. The federal legislation set aside $25 billion for direct financial relief to rental property providers through the states. SB 91 provides the criteria for distribution of that rent relief. I will be addressing the rent relief portion of SB 91 in a subsequent post.
Ultimately, SB 91 makes many important changes to the COVID-19 Tenant Relief Act of 2020. The hope with SB 91 is that it will allow additional time for tenants to get back on their feet. Further, SB 91 provides landlords some welcome relief for any missed rent payments.