There seems to be a fair amount of confusion over the statewide ban on Unlawful Detainer filings and how that ban dovetails with ordinances passed by specific cities and counties. We thought an overview would be helpful.
STATEWIDE BAN ON UNLAWFUL DETAINER FILINGS
The California Judicial Council amended the California Rules of Court on April 6, 2020. The amendments were extensive but for purposes of this article, we will focus on the statewide ban on the issuance of any Unlawful Detainer Summons.
Emergency Rule No. 1
states, in relevant part, as follows:
“A court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.”
“A court may not enter a default or a default judgment for restitution in an unlawful detainer action . . .”
“This rule will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted
, or until amended or repealed by the Judicial Council.”
The purpose of this particular amendment was to immediately STOP ALL UNLAWFUL DETAINER ACTIONS. This means NO new Unlawful Detainer action may be filed anywhere in the State of California. This includes all types of property and all types of cases. The court did not distinguish between cases for delinquent rent caused by the pandemic versus cases for illegal use or other non-monetary issues. No filings means no filings. This also means that existing cases already in the queue will NOT move forward. This order supercedes any ordinance enacted by any city or county.
The city ordinance covering the area where my property is located says
there is a moratorium on evictions through May 31, 2020. Can I start an Unlawful Detainer case on June 1st?
No, the statewide ban supercedes any local ordinance. No Unlawful Detainer case may be filed until “90 days after the governor declares the state of emergency to be over”.
I have a tenant who is growing marijuana illegally in my industrial park.
This has nothing to do with COVID-19. What can I do?
Nothing. The statewide ban is as to on ALL Unlawful Detainer actions. The Judicial Council did not distinguish between monetary and non-monetary cases.
IMPACT OF LOCAL ORDINANCES ON RENT DEFERRAL AGREEMENTS, REPAYMENT PERIODS AND LATE FEES
Many cities and counties throughout the state have passed ordinances to deal with the fall-out from the COVID-19 pandemic. While any local ordinance that deals with Unlawful Detainer cases has been superceded by the California Judicial Council amendments as discussed in No. 1 above, the local ordinances DO still impact many aspects of what a landlord may or may not do with respect to tenants including rent increases, late fees and repayment periods for deferred rent. Be familiar with your local ordinances and make sure to be in compliance.
Can I charge late fees, interest or assess other penalties?
It depends on your local ordinance. Many cities have specifically said that no late fees or other penalties may be assessed as to rent that falls delinquent during the pandemic.
My city ordinance says tenants have six (6) months to pay back deferred rent. I would like to have the money paid back in three (3) months. Can I do that?
We believe that is problematic. If the city ordinance gives a tenant a specified period of time, we believe you need to honor that mandate. The only way around it would
be to disclose, in your deferral agreement, that the city has allowed a specific period of time and that you and the tenant have agreed to have the repayment period be shorter. If you have disclosure, you are probably fine. Most tenants aren’t going to agree to a shorter time period, however, unless there is a benefit to them so this would likely work only if you are giving the tenant some other concession.
I know I can’t file an Unlawful Detainer action but can I serve a Notice to Pay Rent or Quit?
Check your local ordinance. Most cities do not prohibit you serving a
notice but some do. You want to make sure you stay compliant with the local order.
If my tenant is not paying and will not respond to my efforts to contact them, can I apply the security deposit?
The application of a deposit is very lease specific. Review your lease and make sure you are giving any notices the lease may require before you apply any portion of the deposit. Provided the tenant is delinquent and you are in compliance with the lease, you
should be able to apply the deposit to cure or partially cure the delinquency.
TENTATIVE SCHEDULE FOR RE-OPENING OF COURTS
All courts in California have been closed to the public for some time, all hearings (civil and criminal) through May 31st were taken off calendar and only a small number of matters deemed to be emergency matters have been handled.
While the e-file system is up and running, it does not appear that anyone is actually processing the documents submitted. We have not received any filed and conformed documents back from most court systems since mid-March which means there is a
very large backlog of documents in the queue
that need to be processed. In addition, there are literally thousands of hearings that will need to be re-set.
We have received “tentative” dates as to when the So Cal courts are to re-open on a limited basis to handle civil matters. These
dates are tentative only
and may be extended further:
Orange County: May 22, 2020
Riverside County: May 15, 2020
San Diego County: May 22, 2020
San Bernardino County: May 29, 2020
Los Angeles County: Has continued to process civil documents during pandemic.
The court system was backlogged “before” the COVID-19 pandemic hit. We do NOT expect the courts to re-open and be back to “business as usual” quickly. The entire court system will need to be restructured to accommodate “social distancing” requirements for its staff and the public. We expect to see many hearings be held electronically and a complete revision of the jury process. We also suspect it will take the court an inordinate amount of time to catch up and process the thousands of documents that have been sitting in the queue for the last 6 weeks.
When the courts re-open, will I be able to file Unlawful Detainer actions
as to those tenants who have refused to work with me on rent deferrals or gone silent on me?
No. While the courts will re-open on a limited basis, the Judicial Council
amendment will remain in place for
“90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.”
Do we have any idea when the governor will remove or amend the state
of emergency order?
No. Unfortunately, while the governor has provided us with a 4-step process to re-open businesses over time, he has given no time line whatsoever as to when that will happen.
Some counties have decided to allow businesses to re-open in spite of the governor’s order. If we have property in one of those counties, will the courts start processing unlawful detainer cases earlier?
No. The Judicial Council order is statewide and impacts the entire court system. While a county may choose to lighten up the restrictions and allow businesses to re-open,
they have no control over the court system.