March 30, 2020
To: All SLG Clients and Affiliates:
From: Spencer Scheer
Subject: Update COVID-19 LEGAL IMPACT AND TRENDS – Prior CA Eviction Moratorium Clarified and Changed
On March 27, 2020, CA Governor Newsom issued Executive Order N-30-27 (“Second Executive Order”). The Second Executive Order can be found at:
Governor Newsom Takes Executive Action to Establish a Statewide Moratorium on Evictions
In some instances the Second Executive Order changes or supersedes the prior Executive Order N-33-20 (“Prior Order”), issued on March 19th, 2020 (See Prior SLG update at https://www.scheerlawgroup.com/update-covid-19-legal-impact-and-trends-please-see-attached-outline/ ). This was apparently done in part in order to reconcile varying responses that were issued by CA counties that were inconsistent or at odds with the Prior Order. Also, practically, it would be both counter-productive and very bad PR to allow evictions of residential tenants who are under a state wide “stay at home order.”
Noteworthy items in the Second Executive Order are:
· Clarification: The Second Executive Order is clearly directed to residential evictions (See Recitals 4-6, addressing the need for residential occupants to remain at home).
· Clarification; The Second Executive Order supersedes the Prior Order to the extent of any conflict (See “Further Order” provisions in Executive Order).
· Note: The Prior Order allowed local and state governments broad discretion to enact limitations on both residential and commercial evictions (Prior Order, Par. 2). While the Second Executive Order is directed to residential evictions, specific county regulations may stay or limit commercial evictions as well e.g. Sacramento City Council emergency ordinance; SF temporary moratorium.
· Time for Tenant to Respond to an Eviction Complaint: Increased from five to 60 days if eviction is for non-payment of rent because of COVID-19 issues, and:
· Prior to the Order, the tenant paid rent due to the landlord pursuant to an agreement.
· The tenant notifies the landlord in writing prior to the rent that is due, or no more than seven days after the due date that there will be a delay in payment related to COVID-19 i.e. sickness of tenant or family member, layoff, employment reduction, state of emergency order requiring shelter in place, childcare issues.
· Note: It is unclear whether the first requirement (tenant paid rent due) can be satisfied if the tenant disputes the rent payment that is due, but then satisfies the second requirement. Clearly, the intention is to extend the time to start the eviction process.
· Tenant must provide verification of the claimed hardship, but no later than the date the payment of the back-rent is due. NOTE: These provisions allow delay in payment not forgiveness of the rent due.
· Enforcement of Lockout Orders: A Sheriff may not enforce a Writ of Possession while the Second Executive Order is in effect and a tenant has satisfied the above-requirements. Note: It could have been argued that pursuant to Penal Code §396(f), that the Prior Order did not stop evictions that were already in place. It is clear that the Second Executive Order restricts a Sheriff from performing a lockout if the specified conditions are met.
· Duration: The Second Executive Order is in effect through May 31, 2020, unless further extended.
Please call or email if you have any questions.