On Friday, January 29, 2021, California Governor Newsom signed an extension of the AB 3088 eviction moratorium into law. This law prohibits some, but not all, evictions. Under the SB 91 extension, many evictions cannot move forward until after June 30, 2021.
This article is not meant to explain all of SB 91. Rather, the primary focus of this post is to discuss aspects of SB 91 dealing with evictions. Furthermore this is not intended to be legal advice and provides only a high-level overview of the SB 91 eviction moratorium and touches on some of the main points of the law relating to evictions. These restrictions on evictions are in effect immediately. Landlords wanting to discuss their particular potential eviction should schedule a paid eviction consultation with us. SB 91 is a new law and interpretation is subject to change. Consult legal counsel before taking any action.
SB 91 Does Not Ban All Evictions
While SB 91 prohibits many evictions through June 30, 2021, it does not prohibit all evictions. To be sure, the courts are still accepting new unlawful detainer (eviction) filings are are continuing to process existing unlawful detainers. There are, however, more requirements for an unlawful detainer filing (see article here on UD-101) and parties can expect more delays than what occur under normal circumstances.
So, what types of unlawful detainer eviction cases are permitted to move forward now? SB 91 identifies what types of unlawful detainer evictions can move forward prior to July 1, 2021. Per CCP 1179.03.5:
(a) Before July 1, 2021, a court may not find a tenant guilty of an unlawful detainer unless it finds that one of the following applies:
(1) The tenant was guilty of the unlawful detainer before March 1, 2020.
(2) In response to service of a notice demanding payment of COVID-19 rental debt pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161, the tenant failed to comply with the requirements of Section 1179.03.
(3) (A) The unlawful detainer arises because of a termination of tenancy for any of the following:
(i) An at-fault just cause, as defined in paragraph (1) of subdivision (b) of Section 1946.2 of the Civil Code.
(ii) (I) A no-fault just cause, as defined in paragraph (2) of subdivision (b) of Section 1946.2 of the Civil Code, other than intent to demolish or to substantially remodel the residential real property, as defined in subparagraph (D) of paragraph (2) of subdivision (b) of Section 1946.2.
(II) Notwithstanding subclause (I), termination of a tenancy based on intent to demolish or to substantially remodel the residential real property shall be permitted if necessary to maintain compliance with the requirements of Section 1941.1 of the Civil Code, Section 17920.3 or 17920.10 of the Health and Safety Code, or any other applicable law governing the habitability of residential rental units.
(iii) The owner of the property has entered into a contract for the sale of that property with a buyer who intends to occupy the property, and all the requirements of paragraph (8) of subdivision (e) of Section 1946.2 of the Civil Code have been satisfied.
What does this mean in plain English? The easiest way to explain the types of evictions that can proceed now is as follows:
- Guilty Before March 1, 2020: If the tenant was guilty of unlawful detainer before March 1, 2020 (which is when the AB3088 eviction moratorium was made retroactive to), then those cases can move forward.
- Non-Payment of Rent: If the landlord adheres to all the temporary AB 3088 / SB 91 restrictions relating to non-payment of rent, and the tenant fails to return the declaration to the landlord and fulfill the tenant requirements under the temporary law, the landlord is permitted to bring forth an action for unlawful detainer now. (Caution: Even if the tenant fails to return the declaration to the landlord and therefore the landlord initiates an unlawful detainer against the tenant, the tenant has the right under the law to try and get the case dismissed under certain conditions.)
- The Tenant is “At-Fault”: Other than non-payment of rent, evictions can proceed if the tenant is at-fault, as defined in Civil Code 1946.2(b)(1). The tenant is “at-fault” when they are doing something that they are not supposed to do, or not doing something that they are supposed to do. Examples include if the tenant is breaching a material term of the rental agreement, committing a nuisance, damaging the property, or using the property for an unlawful purpose.
- The Eviction is for “No-Fault”: A no-fault eviction is an eviction where the landlord needs the property back not because the tenant is “misbehaving,” but rather for another reason. There are limited reasons under Civil Code 1946.2(b)(2) that allow a landlord to evict a tenant for a no-fault reason. Examples include if the owner or owner’s relative needs to move into the property or if the landlord received a government order which requires the vacating of the property. To be clear, to qualify under no-fault, the no-fault reason must be outlined in the Civil Code in order to proceed with a no-fault eviction at this time. Even properties that are normally exempt from just-cause eviction requirements are NOT exempt under SB 91 and AB 3088.
- The Owner of the Rental Property is Selling the Property: If the rental property is a single family residence and certain requirements are met, a landlord is permitted to evict the tenant if the owner has entered into a contract to sell the property with a buyer who intends to live at the property.
If the reason for the eviction doesn’t fit into one of the above categories or is not for a health and safety reason, then the eviction cannot be brought during the SB 91 / AB 3088 eviction moratorium. It is also important to note that SB 91 expands retaliation prohibitions. A landlord cannot use a different reason for eviction when the real underlying reason is non-payment of rent.
15 Day Notice to Pay Rent or Quit
The 15 day notice to pay rent or quit requirements under AB 3088 have been extended through June 30, 2021. In addition to serving the 15 day notice to pay rent or quit, landlords must include a notice from the State of California which outlines tenant rights, and concurrently provide the tenant with an unsigned declaration. The unsigned declaration form has been updated to include language reflecting the new expiration date of the moratorium and explains that the tenant may qualify for rental assistance.
There are different 15 day notice requirements depending on if the rent is for March 1, 2020 through August 31, 2020 (“protected time period”) or September 1, 2020 through June 30, 2021 (“transition time period”). For the transition time period, tenants will need to pay 25% of the rent incurred between September 2020 and June 2021 in order to be protected from unlawful detainer. Unless the tenant is high-income as it is defined in the law, landlords are prohibited from asking for documentation to prove that the reason for non-payment is COVID-related.
Good to Know About the SB 91 California Eviction Moratorium
- Rent control in local jurisdictions may provide additional restrictions on evictions. Be sure to check rent control laws. For example, Los Angeles City and Los Angeles County are two jurisdictions that have local eviction restrictions in effect. Both LA City and LA County disallow no-fault evictions at this time.
- Rental assistance is coming for some landlords and tenants.
- Even if a landlord is prohibited from evicting a tenant for non-payment of COVID debt, landlords may still be able to bring forth a small claims court case or regular civil action against a tenant, eventually.
- Regardless of whether or not the landlord intends to serve the tenant with a 15 day notice to pay or quit, landlords are required under SB 91 to serve a notice from the State of California on the tenant no later than February 28, 2021, if the tenant owes any rent for the period beginning on March 1, 2020 and ending on February 1, 2021.
Additional Resources Related to SB 91 and Evictions
- Schedule a paid 15 or 30 minute telephone consultation to discuss your particular case.
- Watch our SB 91 eviction moratorium video.
- Follow us on Twitter and like us on Facebook to receive up-to-date eviction information and landlord best practices.
- Read our article on AB 3088.
- Read the news release on SB 91 from Governor Newsom.
- Read the full text of SB 91.
- LA Times article.