As you are aware, on August 11, 2020, the California Judicial Council (“CJC”) advised the California legislature that it would lift its moratorium on California Unlawful Detainer filings effective September 1, 2020. In response to the CJC’s action, the California legislature passed AB 3088 also known as the California Tenant Relief Act (the “Residential Tenant Act”) governing the relationship between RESIDENTIAL landlords and tenants with respect to COVID related non-payment issues.
COMMERCIAL PROPERTIES:
THE COURTS:
As of September 1, 2022, neither the California governor nor the legislature has handed down any new legislation with guidelines for COMMERCIAL landlords and tenants. Since the CJC lifted its moratorium on Unlawful Detainer cases on September 1, 2020, the courts can “technically” file commercial Unlawful Detainer actions now. In Southern California, we have confirmed that Orange, Riverside, San Diego, San Bernardino and Ventura Counties are accepting “commercial” Unlawful Detainer filings as of this week.
Los Angeles County is more complicated. The City of Los Angeles still has an ordinance in effect through September 30, 2020 that precludes Unlawful Detainer filings. The County of Los Angeles also has an ordinance that covers all unincorporated areas PLUS any cities within Los Angeles County that do not have their own ordinance. The County order extends through September 30, 2020 and precludes Unlawful Detainer filings. We will provide more updates on what can and cannot be done in Los Angeles as more information becomes available.
LOCAL ORDINANCES STILL APPLY:
The CJC’s lifting of the Unlawful Detainer moratorium does NOT offer “Carte Blanche” permission to commercial landlords to start eviction proceedings as they wish. There are numerous ordinances that have been enacted by local jurisdictions (cities and counties) that dictate what a landlord may or may not do with respect to non-paying tenants, tenants with expired leases, and tenants with other non-monetary issues. It is critical that commercial landlords review any local ordinances that govern the city where each property is located to ensure they are in compliance with local ordinances. There are also some county ordinances that not only govern unincorporated areas within the county but in some cases, also govern any city within the county that does not have a specific city ordinance in place. Many ordinances provide that significant monetary penalties can be imposed if a landlord does not comply with the ordinances. We can assist with ordinance review and interpretation.
QUICK OVERVIEW OF ORDINANCES – WHAT YOU NEED TO KNOW:
- Does the city where your property is located have an ordinance that includes an eviction moratorium, rent relief or other COVID related tenant protection? If the city does not, does the county have such an ordinance? Note: If both the city and the county have ordinances, then the ordinance that offers the “most” tenant protection is the ordinance that will prevail.
- When did the ordinance go into effect? What is the stated expiration date in the initial ordinance? Has the city (or county) extended the effective time period? Note: We expect that some cities will step up and take action in the next few weeks to offer additional protection to commercial tenants so it is critical landlords stay current with local legislation.
- Does the ordinance provide for a specific repayment period for rent that became due but was not paid during the emergency period (March – August 2020)? Note: If the only rent that remains unpaid is rent that accrued during the emergency period AND the relevant ordinance provides for a specific repayment period, you will NOT be able to file an action to evict or collect, based on those monies, until after the repayment period has expired.
- What guidelines does the ordinance provide with respect to a repayment plan and/or the repayment period? Were any requirements placed on the landlord?
- What recourse does the ordinance give to the landlord when no repayment plan is negotiated?
- Does the ordinance preclude the landlord from imposing late fees, interest or other penalties for unpaid rent that became due during the emergency period? Note: Billing late fees when an ordinance precludes such fees can subject a landlord to monetary penalties.
UNLAWFUL DETAINER ACTIONS BASED UPON NON-MONETARY ISSUES:
If you have a non-monetary issue such as an expired lease, breach of the use provision, failure to maintain insurance, breach of an exclusive use provision, etc., those cases may proceed now. Obviously, a landlord may not start an Unlawful Detainer action for a non monetary breach to retaliate against a tenant who took advantage of the protection offered by the CJC’s order during the emergency period.
TIMING, DELAYS IN THE COURT SYSTEM:
Keep in mind that the courts were closed for in excess of three (3) months. Thousands of hearings were taken off calendar and need to be rescheduled. The courts are now operating with limited staff, some of whom work on alternating shifts to provide for social distancing and court hearings are being held remotely. While the courts are still trying to catch up from the three (3) month closure, due to the CJC’s lifting of the Unlawful Detainer moratorium, the courts are expecting a massive influx of new cases. They are not currently staffed to handle the expected volume and will be seriously backlogged. As a result, we expect all civil cases, including priority Unlawful Detainer actions, to take substantially longer than they did pre-COVID.
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