Tenant Rights During Covid
It also creates new Sections of the Code of Civil Procedure that create significant protections for tenants against eviction for non-payment of rent during the COVID pandemic. This post is is a brief summary of some of those changes.
Increased Penalties for Self-help Evictions
The Civil Code has been updated to increase the penalties for landlords that use self-help eviction methods during the protected period. This increase in penalties was previously enacted, but the period it covers has been extended.
If a landlord shuts off your utilities, changes your locks, or removes personal property from your home anytime before October 1, 2021, then they could be held liable in court for up to $2,500 in statutory damages. (Civil Code §789.4).
Talk to a Lawyer if You Have Been Wrongly Evicted
Restraints on Assignment of COVID Rent Debt
Debts for unpaid rent accrued since March 4, 2020 cannot be assigned by landlords or property managers prior to October 1, 2021 (Civil Code §1788.65).
Also, debts for unpaid rent may not be assigned at all if the tenant would have qualified rental assistance funding (Civil Code §1788.66)
Definition of Retaliation Expanded
Threats to terminate a tenancy, increase rent or decrease services because a tenant has unpaid COVID rent may be considered retaliatory and legally actionable (Civil Code §1942.5(d)).
Small Claims Court Jurisdiction Expanded
Small claims jurisdictional limits have been removed for landlords that wish to sue tenants over unpaid COVID rent debts.
Normally the jurisdictional limit for small claims court is $10,000, but Section 116.223 of the Code of Civil Procedure lifts those limits when the lawsuit alleges the debt arises out of unpaid COVID rent.
Landlords are barred from bringing cases to recover unpaid COVID rent until November 1, 2021. (Code of Civil Procedure § 116.223(b)(3)).
However, subparagraph (b)(2) also provides (2) In an action described in paragraph (1), the court shall reduce the damages awarded by the amount of any payments made to the landlord to satisfy the COVID-19 rental debt. This includes payments by the tenant, rental assistance programs, or another third party pursuant to paragraph (3) of subdivision (a) of Section 1947.3 of the Civil Code.
If your landlord accepted partial payments from a rent payment assistance program, then they may be prohibited from trying to collect any additional amount from their tenants.
This law creates a significant downside for tenants because small claims court does not allow attorneys, and many of the procedural rights you would enjoy in civil court do not apply. Because you cannot have an attorney assist you in trial, it is all the more important to speak with a lawyer before going to small claims court.
Tenants have significant rights to assert, but you must be educated about how and when to do so. If you lose at trial, you can appeal, and upon appeal, you can have an attorney represent you.
Preliminary Conditions Imposed on Landlords Lawsuits
Landlords must demonstrate to the court that they have attempted to obtain governmental assistance before they can prevail in court on any attempt to recover unpaid COVID rent in a breach of contract claim (Code of Civil Procedure § 871.10)
If it is an unlawful detainer (a case to evict), then the landlord must submit declarations explaining he has attempted to obtain government assistance for the rent owed.
Failure to make the declaration provides a basis for a tenant to bring a motion to quash (Code of Civil Procedure §1179.11(d)).
Access to Court Eviction Records Limited
The Code of Civil Procedure has been amended to stop public access to most court records related to evictions filed during the COVID pandemic.
In unlawful detainer cases based on an alleged default in the payment of rent filed between March 4, 2020, and September 30, 2021, court records will remain sealed.
Access to unlawful detainer records will only be granted to those persons who are parties to the action, to their attorneys, or individuals that can provide to the clerk of the court the case number, the names of both the plaintiff and defendant, and the property address.
This limit upon access to court records does not apply to those cases that were based upon a notice of termination other than non-payment of rent.
Attorney's Fees Capped
In any case filed to recover COVID rent debt, attorney’s fees are capped at $500 if the case is uncontested, or $1,000 if it is contested. (Code of Civil Procedure §871.11).
This Section of the Code overrides any provision of a rental agreement that allows for the recovery of attorney’s fees, but it does not allow the recovery of any fees if the rental agreement doesn’t allow it, or caps them at a lesser amount.
This revision of the law is designed to prevent landlords from racking up large attorney’s fees bills and then passing them on to tenants they have sued in court. It creates incentives for landlords to use the small claims court.
This provision may also have the perverse effect of creating stronger incentives for certain landlords to assign rent debts to debt collectors.
Notwithstanding the cap, it is still strongly advisable for tenants to get legal advice and representation.
The difference that an attorney will make in your case is often more substantial than the expense of retaining their services.
Any notice demanding the payment of rent that is served after July 1, 2021 must include information about access to rental assistance (Code of Civil Procedure §1179.03(b)(6)).
If there is rent demanded in the notice is owed and accrued before July 1, 2021 and after, then there must be 2 separate notices served.
Additionally, if a tenant has been unable to make any payment of rent during the Protected Time Period (March 4, 2020 through August 30, 2021), then landlords must provide notice to those tenants which explains that they may be eligible for rental assistance payments.. This notice must be provided on or before September 30, 2020
(Code of Civil Procedure §1179.04 )
If a landlord fails to serve the appropriate informational notice described in the Section, then any later notice demanding the payment of rent will be legally invalid to evict (Code of Civil Procedure §1179.03(e)(1))
As with all notices described in Code of Civil Procedure Section 1161, the notices described here must be either delivered to the tenant personally, or posted and mailed on the property.
Get Legal Counsel to Clarify and Plan
The protections created by AB-823 benefit tenants in many ways, but how tenants maximize the benefits provided depends on taking initiative and getting dependable legal counsel to make your plan effective. Rights to not assert themselves. Laws mean little when those they are designed to befefit and protect aren’t educated.
Don’t simply wait to see how things are going to unfold. There has never been a better time for tenants to get the protection they need. Let us be the attorneys that place you on firm footing to undertand your tenants rights.
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