Background. As explained during a June 29, 2021 presentation, the Board of Supervisors adopted an eviction moratorium ordinance on April 21, 2020 in response to the COVID-19 pandemic. The ordinance applies to both commercial and residential tenancies in the unincorporated area. It enables tenants to avoid eviction for non-payment of rent if they experience financial distress (or certain other adverse impacts) due to the COVID-19 pandemic. The ordinance also prohibits "no-fault" evictions (i.e., evictions occurring for reasons other than non-payment of rent) during the pandemic. Tenants have to follow certain procedures described in the ordinance to receive its protections, including meeting certain notice requirements. Tenants covered by the ordinance cannot be evicted for non-payment of rent so long as they commence repayment by May 1, 2022 and complete repayment within six months.
General Changes. Due to recent changes in state law and the expiration of executive order protections for commercial tenancies, the County needs to adopt certain conforming edits to the moratorium ordinance. These changes consist of:
- Modifying the repayment timeframes for residential tenancies. The ordinance currently allows a protected tenant to make no payments on rental debt until termination of the local state of emergency, and it affords another 180 days thereafter to complete all payments. State law now preempts local ordinances by requiring repayment to begin (as mentioned above) by May 1, 2022 and be completed within 180 days.
- Recognizing that protections for commercial tenancies have ended, consistent with the expiration of Executive Order 03-21 on June 30, 2021 (which provided authority for such local protections).
Both ordinance alternatives included as Exhibits 1 and 2 to Attachment A hereto include these changes, along with a clarifying amendment that excludes campgrounds and recreational vehicle parks from the definition of “residential real property.”
No-Fault Eviction Protections. As discussed during the June 29 Board meeting, the moratorium protects tenants from eviction if they are unable to pay rent and also prevents “no fault” evictions. California law was substantially modified by the Tenant Protection Act of 2019 and, currently, “just cause” is required to terminate most residential tenancies if a tenant has continuously and lawfully occupied a unit for 12 months or longer. Such “just cause” evictions are either “at fault” evictions or “no fault” evictions:
- At fault evictions include lease violations as well as evictions occurring at the end of a fixed term lease (e.g., an eviction occurring at the end of a one-year lease if no extension is signed and the landlord does not accept any additional rent payments).
- No fault evictions are evictions that can only occur if certain circumstances exist, such as withdrawal of the unit from the rental market or if the landlord or a close relative intends to occupy the unit. Importantly, any eviction occurring after the end of a fixed term lease is a “no fault” eviction if the landlord has accepted additional rental payments, converting the expired lease into a month-to-month tenancy.
A detailed summary of the Tenant Protection Act of 2019 (excerpted from a leading real property law treatise) is included as Attachment B. The Act includes limited exemptions, including for newly built housing and deed-restricted affordable housing, but most residential units are subject to the Act.
By prohibiting “no fault” evictions, the County’s moratorium ordinance introduced a significant new restriction on owner rights. The ordinance effectively extends month-to-month tenancies indefinitely and an owner must allow a tenant that invokes its protections--as explained below--to remain in the unit until the Ordinance expires. Tenants must be allowed to stay even if the property is sold, if the landlord desires to move in, and if the landlord desires to substantially renovate the property, even though California law would otherwise permit such no fault evictions after service of a 30- or 60 day (depending on the length of the tenancy) notice to vacate.
This is the basis of several complaints from attorneys and landlords in recent months. Some complaints overlook that the Ordinance requires tenants resisting a no-fault eviction to demonstrate a substantial loss of income from COVID-19 related causes. The ordinance included as Attachment A, Exhibit 1 proposes to narrow and clarify related language so that no fault protections are only available to tenants that have already invoked the protections of the ordinance due to non-payment of rent. However, the Board may also wish to consider entirely revoking County restrictions on no fault evictions due to their disruptive effect in situations where state law otherwise allows an eviction, as discussed above. This would allow no-fault evictions to proceed, and is included in the alternative version of the ordinance included as Exhibit 2 to Attachment A.
It is important to understand that eliminating no-fault eviction protections will allow a landlord to terminate a residential tenancy even if a tenant has properly demonstrated an inability to pay rent and is otherwise protected by the ordinance from eviction. This could result in “pretextual” no fault evictions—evictions that assert a proper no fault basis, such as owner move-in, but are actually undertaken to avoid local and state restrictions on eviction for the non-payment of rent due to COVID-19. The potential for such abuse has prompted a limited number of jurisdictions to further regulate no-fault evictions. For example:
- Los Angeles County requires a landlord to invoke “owner move in” provisions in good faith, defined as occupying the unit within 60 days after the tenant vacates and thereafter occupying it as their principal residence for at least three years;
- Santa Monica has similar restrictions in place, requiring a landlord to move in within 30 days after the tenant vacates and to occupy it for one year thereafter. A landlord has to “allege and prove compliance” with those restrictions in any unlawful detainer action. If the landlord later fails to move in, it must offer the unit back to the tenant and pay the tenant’s moving expenses; and
- San Francisco requires a landlord asserting a no fault basis for eviction to act “without ulterior reasons and with honest intent.” Landlords are also required to provide relocation assistance (cash) to affected tenants in some instances.
The alternative ordinance included as Exhibit 2 to Attachment A includes elements of these approaches. Specifically, it requires the landlord to move in within 30 days after the tenant vacates and to thereafter occupy the residence for one year or offer the unit back to the tenant with moving expense reimbursement. The alternative ordinance also limits other no fault evictions undertaken to withdraw a unit from the rental market, limiting evictions to situations where an owner is in contract to sell the unit to a buyer intending to occupy it as their primary residence. All no-fault evictions must be undertaken in good faith and, to bolster this requirement, the alternative ordinance requires the landlord to “allege and prove compliance” in any unlawful detainer action. The ordinance does not propose relocation assistance.
Options for the Board. In summary, the Board has at least three options:
- Move the ordinance included as Attachment A, Exhibit 1 forward for a second reading and potential adoption. This ordinance, if adopted, would retain the no-fault eviction protections but clarify that they are only available to tenants that are already protected by the ordinance from eviction due to non-payment of rent.
- Move the ordinance included as Attachment A, Exhibit 2 forward for a second reading and potential adoption. This alternative ordinance, if adopted, mirrors the ordinance included as Exhibit 1 but allows no-fault evictions subject to several requirements (summarized above) that are intended to discourage “pretextual” no fault evictions.
- Direct staff to delete all no-fault protections from the ordinance and return with an amended version that reflects evolving state laws relating to repayment timeframes, expiration of commercial tenancy protections, and other matters summarized in the discussion of “general changes,” above.
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