Social isolation has not prevented the proliferation of a shared, palpable tension for many, seen in Facebook groups, Instagram comment threads, and in private conversations: Rent is now due. And, despite a shelter-in-place order put in place by Gov. Gavin Newsom on March 19, dozens of people have been evicted in Fresno County in the following weeks.
Temporary relief from losing one’s home may be in view, a needed respite for those without access to a savings account, generous friends, or for whom unemployment or stimulus checks may be weeks away (or never arriving, as is the case for many undocumented people). The new relief comes with a catch: learning the legal system.
On Monday, the California Judicial Council approved an emergency order that essentially puts a halt to courts processing eviction claims by landlords — augmenting Newsom’s March 27 executive order, which gave tenants impacted by the coronavirus crisis a longer period to respond to eviction claims filed against them. Through the remainder of the emergency order, no one should be evicted, with the exception of “public health and safety” reasons, according to the order — which might include cases of domestic violence or nuisances, according to Nikki Love, a Fresno-based managing attorney at Central California Legal Services.
And for landlords worried about their properties going into foreclosure if they lose rent, the Judicial Council also approved an emergency order preventing court-ordered foreclosures through the remainder of the state’s emergency order.
Despite the new rules from the Judicial Council, two things remain true: pay your rent or mortgage if you can (even partially), and communicate with whom you owe in writing about your situation, no later than seven days after rent is due.
But the future remains murky. “How long is this going to last? How deep is the cut? None of us know right now,” said Greg Terzakis, senior vice president with the California Apartment Association.
There are currently some incentives for landlords to be flexible with tenants who are not able to pay. There are generally more protections in place for property owners with mortgages than for tenants.
Landlords who own properties with federally subsidized mortgages are eligible for forbearance plans up to one year. Many other banks are also offering forbearance plans as well, some up to three months. The new stimulus bill passed by Congress and signed by President Trump also includes a loan program for some employers with less than 500 employees, including landlords and property management companies, to cover their rent, mortgage interest, and payroll expenses — an effort to keep as many people employed right now as possible.
The process of getting legally evicted is a highly regulated and locally specific process. Beyond specific regulations around evictions in California, each city and county may have its own set of more restrictive rules.
Here are answers to some of the common questions now being asked:
Not paying rent
Even if a renter has communicated reasons in writing for not being able to pay, a landlord could still serve a “notice to pay or quit”, according to Mariah Thompson, a Fresno-based attorney with California Rural Legal Assistance.
This notice isn’t a legal eviction notice — it’s just a warning, reminding tenants that they are in violation of the lease terms — and starts a three-day countdown for the resident to pay rent.
Many tenants end up moving after receiving this notice for fear of having an eviction on their record, which hurts their credit and ability to find another place to live, according to Fresno State sociology professors Amber Crowell and Janine Nkosi, who authored a recent study on local evictions. A formal eviction order from a court will stay on a tenant’s credit report for seven years.
Even if tenants don’t receive the formal notice to pay or quit, any communication from a landlord insinuating that a lack of payment will result in eviction often leads to this “self-eviction,” Crowell and Nkosi said. Research by Princeton University sociology professor and eviction expert Matthew Desmond has found that there are twice as many of these “informal” evictions as formal ones.
Amidst the coronavirus pandemic, landlords are being advised to work with tenants who can’t pay to the extent possible, said Steve Hrdlicka, a Fresno-based attorney who represents landlords. “If people have truly lost their job, we get that,” he explained.
The California Apartment Association has told their membership to halt any evictions through May 31st, according to a statement on their website.
Unlawful detainer claim
In normal circumstances, if a renter is still in violation of the lease (e.g. doesn’t pay rent) after three days pass from being served a notice to pay or quit, the landlord can then file an “unlawful detainer” claim with the local Superior Court.
New local, federal, and state regulations are in place protecting tenants from some types of evictions, so this is where the process gets complicated.
For renters in Fresno, the local ordinance says that “no renter will be evicted for nonpayment of rent.” This doesn’t necessarily mean that an unlawful detainer won’t be filed, said Ashley Werner, an attorney with Leadership Counsel for Justice and Accountability. However, if a renter has followed the instructions in the city’s ordinance to communicate in writing with their landlord their inability to pay rent, and an unlawful detainer is still filed, they should alert the city to investigate the claim.
For renters outside of Fresno, the new Judicial Council emergency order does not stop a landlord from filing an unlawful detainer claim with the court. But a defendant can’t be served with a summons to appear in court, until the state emergency order is lifted, according to Love. “It’s important for people to remember that unlawful detainer filings are not evictions. Notices to pay or quit are not evictions. An eviction is only an eviction if the courts say it is.”
During this time period, if a claim has been filed, renters are urged to work with attorneys to gather evidence that their inability to pay rent is specifically related to impacts from the Covid-19 crisis, Love said.
If a renter isn’t able to prove both of those things, it’s likely the unlawful detainer claim will continue to be processed, once the courts reopen for more than emergency business.
There’s also prohibitions on evictions for renters who live in federally subsidized properties, although it’s difficult for a tenant to figure out if that protection applies to them. Some landlords may also not easily know this information, as it applies to a broad myriad of federal programs, including federal agencies that securitize some loans, such as Fannie Mae or Freddie Mac. (If you’re a landlord, you can look up if Fannie or Freddie own your mortgage here.) According to an analysis from the Urban Institute, these federal eviction protections cover around a quarter of all rental properties.
Evictions still possible
Yes: evictions are still happening, even after Newsom issued a stay-at-home order on March 19. As first reported at CalMatters, the Fresno County sheriff conducted 20 lockouts in the past two weeks. However, the new Judicial Council order essentially halts all evictions, with some emergency exceptions, until the state’s emergency order is lifted.
For eviction claims already filed, they’re likely to continue processing once the courts reopen for more than emergency business. According to Hrdlicka, there are some unlawful detainer claim hearings that were supposed to be heard last month and likely are postponed to the end of April. Some of these may still end ultimately in evictions for tenants later this spring. Although, Hrdlicka says, tenants still can apply for a “motion to stay the eviction” in these scenarios to avoid a lockout during the stay-at-home order.
According to the study from Crowell and Nkosi, which examined evictions in 2016, a significant majority of evictions — 80 percent — came from nonpayment of rent, far before the crisis hit.
According to Tony Botti, public information officer for the Fresno County sheriff, deputies enforced their last court eviction order on April 1. Sheriffs are the ultimate end of the eviction process, serving a “notice to vacate,” starting a five-day countdown for tenants to move or otherwise be locked out of the home.
However, once the state’s emergency order is lifted, unlawful detainer claims will continue to be processed in the local courts. But nonpayment of rent, even before the coronavirus crisis hit, has always been a significant factor in local evictions. According to the study from Crowell and Nkosi, which examined evictions in 2016, a significant majority of evictions — 80 percent — came from nonpayment of rent.
Back rent due
There are no rent forgiveness programs at this time.
Advocates are concerned about what this means for tenants after the eviction protections are lifted in the state and federal rules. Back rent will still be due, leaving many tenants — some possibly still getting by on an unemployment check, if the economy hasn’t jumped back — with up to several thousand dollars owed. “What happens in reality is that this is just a stay on evictions,” Thompson explained.
Hrdlicka, the landlord attorney, emphasized that communication is key right now between tenants and landlords. Most landlords want to be flexible, he said. “But rent forgiveness? No. This is a business like any other business. You wouldn’t walk into a restaurant and expect free food. Bills still have to be paid.”
As policymakers grapple with solutions beyond temporary eviction restrictions, many are struggling with the interconnected fates of renters, landlords and, ultimately, municipal budgets that rely on property taxes to deliver public services.
There’s a lot of uncertainty about how quickly the economy will recover after people are allowed to return to some semblance of normalcy. “People need to have the most basic sense of stability during this crisis. The consequences are so severe if they don’t,” Werner said.