Evictions during COVID

Millions of California renters are at risk of eviction as tenant protections soon expire, raising fears of a mass surge in homelessness during the deadliest phase of the pandemic so far.

The state’s emergency rules to pause evictions amid the Covid-19 crisis are scheduled to terminate at the end of January, which could result in landlords across California going to court to remove residents behind on rent. But amid a new stay-at-home order and shutdowns due to rapidly rising Covid infections, tenant groups and some lawmakers are pushing for an extension of protections and broader measures to preserve housing.

California’s housing crisis was already dire before Covid. Despite being the world’s fifth largest economy and the home of some of America’s richest zip codes, the state’s affordable housing shortage has long forced hundreds of thousands of households to spend the vast majority of their income on rent. Last year, the state’s homeless population increased to 151,000.

That means the mass unemployment of 2020 has turned the state’s housing problem into a large-scale emergency. A US census survey in November found that more than 2m households in California have “little to no confidence” they can pay next month’s rent – a figure expected to increase with new shelter-in-place orders.

The state government’s response so far has been a patchwork of regulations that have had mixed success.

AB 3088 passed on August 31, 2020.

Under the legislation, no tenant can be evicted before February 1, 2021 as a result of rent owed due to a COVID-19 related hardship accrued between March 4 – August 31, 2020, if the tenant provides a declaration of hardship according to the legislation’s timelines. For a COVID-19 related hardship that accrues between September 1, 2020 – January 31, 2021, tenants must also pay at least 25 percent of the rent due to avoid eviction.

Tenants are still responsible for paying unpaid amounts to landlords, but those unpaid amounts cannot be the basis for an eviction. Landlords may begin to recover this debt on March 1, 2021, and small claims court jurisdiction is temporarily expanded to allow landlords to recover these amounts. Landlords who do not follow the court evictions process will face increased penalties under the Act.

The legislation also extends anti-foreclosure protections in the Homeowner Bill of Rights to small landlords; provides new accountability and transparency provisions to protect small landlord borrowers who request CARES-compliant forbearance; and provides the borrower who is harmed by a material violation with a cause of action.

Additional legal and financial protections for tenants include:

-Extending the notice period for nonpayment of rent from 3 to 15 days to provide tenant additional time to respond to landlord’s notice to pay rent or quit.
-Requiring landlords to provide hardship declaration forms in a different language if rental agreement was negotiated in a different language.
-Providing tenants a backstop if they have a good reason for failing to return the hardship declaration within 15 days.
-Requiring landlords to provide tenants a notice detailing their rights under the Act.
-Limiting public disclosure of eviction cases involving nonpayment of rent between March 4, 2020 – January 31, 2021.
-Protecting tenants against being evicted for “just cause” if the landlord is shown to be really evicting the tenant for COVID-19-related nonpayment of rent.

If you are a landlord or a tenant and need assistance with evictions in California, please contact us today for a free consultation.

Nationwide Protests and Demand for Institutional Reforms

As many people are aware, there have been protests around the country as well as around the world after the brutal and senseless murder of George Floyd in Minneapolis on Monday, May 25th, 2020. As the saying goes, this was the straw that broke the camel’s back—after the million other straws underneath it. The tumult and passion of the past several weeks have forced people to face the uncomfortable realities of our justice system. These protests are like nothing the United States and the world have ever seen. The last time anything close to what is currently transpiring happened in the United States was during the civil rights movement of the 1960s.

Although some are filled with trepidation over the protests, this movement for institutional reform gives me hope. A movement is different from a demonstration. A demonstration in the street is a prelude to a movement that engages enough people and has a clear enough goal that it has the chance to become institutionalized, like the Voting Rights Act of 1965. The country seems to be undergoing an awakening.

It may be that the act of the person who killed George Floyd was an aberration. But the system that he and the other police officers were a part of protects them and is as American as apple pie. What’s not entirely clear and remains to be seen is whether the country is capable of waking up that reality to its fullest extent. The system works to protect the people who are responsible for all of this at different levels, not just the officer who pulls the trigger or puts his knee on someone’s throat. What the people of this country want is to solve the problem at the level of the individual. It’s inspiring that pressure is now coming from within the system. It’s been sparked by this one event, but the event really has opened up a crevasse through which all history of injustice seems to be pouring through.

The first and foremost part of this movement is the fast-moving, highly contentious local effort to radically reform police departments. “Defund the police” is a rallying cry, but the campaign to invoke it varies widely city by city. In Minneapolis the City Council seems serious about dismantling and rebuilding law enforcement. Seattle has the police-free Capitol Hill Autonomous Zone. San Francisco will stop sending officers to respond to non-criminal matters, instead dispatching health professionals and social workers. Every city is different, and each battle will be fought locally.

The movement local to California is much more significant than the reform movement taking shape in Washington, D.C. Democrats are pushing changes to federal laws that are radical according to the standards relevant two months ago—but fairly weak tea compared to local efforts. The President and Senate Republicans aren’t even offering tea, just lukewarm water in the form of quite limited reforms. Partisan dynamics ensure that the Democrats’ most ambitious reforms will fail. So, don’t pay attention to Washington, which will make a lot of noise and accomplish very little, which is typically par for the course.

The second part of this movement is the continuing, anguished protest about specific acts of violence against Black people. The police killing of Rayshard Brooks is inspiring huge demonstrations in Atlanta and ousted the police chief. Protests over the mysterious hanging death of Robert Fuller have prompted FBI investigation. These demonstrations, which focus on seeking justice in particular cases, are emotionally powerful. As we saw in the case of Floyd’s death, these protests about individual cases can become the fuel that fires protesters to seek broader reforms.

The third part of this movement is the widespread fight concerning statues, symbols, and names. Spun out of the Floyd protests, these symbolic battles have taken on a life of their own. In Virginia, college students proposed taking Stonewall Jackson’s name and image off of it. The argument over army bases named after confederate generals, the banning of the confederate flag at NASCAR events, the defacing of statues of colonialist brutes—these are part of the movement. It’s a long overdue reckoning with American history.

I am hopeful that this nationwide and worldwide movement will result in sweeping reforms to our legal system where it is desperately needed—from top to bottom and not just in the law enforcement sector of it. The American legal system is swimming in systemic racism, financial discrimination, an overly militarized police system shielded by qualified immunity, and rampant corruption. As the country watches with trepidation and hope, we are witnessing history right before our very eyes. If you want to learn more about our legal system and protect yourself against it, pick up a copy of our book at http://www.stloiyf.com/order.php.

Changes to California Landlord-Tenant Laws

AB 1482 passed, which limits statewide annual rent increases and puts in place just-cause eviction protections for tenants.

The bill takes effect January 1, 2020, with a retroactive provision and will be in place for ten years.

Here’s a simple overview for multi-family property owners:

1. Single-family properties are exempt unless they are owned by corporations or institutional investors, such as a REIT.

2. Annual increases limited to 5 percent + CPI (comes to about 8 percent total) on apartments more than fifteen years old.

3. Tenants who have been in place for more than one year can only be asked to vacate upon documented just-cause actions, such as failure to pay rent or violation of lease terms. Allowable exceptions apply when the owner plans to move into the unit, demolish the building, or renovate it. In this instance, a tenant must be provided compensation equal to one month’s rent (about 8 percent of one years’ rental income).

4. The bill provides that these provisions apply to all rent increases occurring on or after March 15, 2019. In the event that an owner increased the rent by more than 8 percent between March 15, 2019, and January 1, 2020, the applicable rent on January 1, 2020, shall be the same rent as of March 15, 2019, plus 8 percent. The owner is not liable to the tenant for any corresponding rent overpayment.

Have questions about the new law? Please contact us! 

Being a Court Appointed Referee

Disputes among co-owners of real property can sometimes be difficult and costly to resolve. They may arise from differences about the use of the property, or simply that one owner wants to liquidate his or her interest. Sometimes the dispute can be resolved through negotiation or mediation. If those options fail, then the only recourse will be the filing of a partition action.

I won’t delve into partition actions too much, as I have covered this topic before. Partition actions are governed by a very detailed statutory scheme that is found in Code of Civil Procedure 872.110. The statutes require the court to appoint one ore more referees. The partition referee will be in charge of a number of tasks, which will vary according to the nature of the partition, and will be given broad authority to deal with the property in order to effectively divide the interests accordingly among the owners.

I will discuss being a referee in partition actions where a court has ordered the sale of the real property at issue. If there is a private sale the referee can use a real estate broker and do all other acts that are necessary to complete the sale and then distribute the net proceeds to the owners. In this scenario, the referee’s main focus is to get the highest and best price for the sale of the real property. The referee is a judicial officer whose job is to be fair, diligent, and essentially act as an auctioneer in the process of selling the real estate. All of the referee’s powers will be exercised under the supervision of the court and with full opportunity for the owners to be heard during the process. The referee acts as an advisor to the court and sells the property on behalf of the owners in a private or public sale.

Who can be a referee? The Code does not require any particular qualifications for a partition referee. Lawyers, accountants, real estate appraisers, brokers, or developers may all be suitable. In my experience as a real estate attorney, real estate broker, and owner of an escrow company, my qualifications are uniquely suited to understand the nuances of the partition and referee processes inside and out. I have thoroughly enjoyed my experiences as a court appointed referee, as well as pursuing partition actions on behalf of my clients.

What are the general powers of a referee? The referee may enter into contracts for services, but will not be personally liable under such contracts, nor for expenses incurred, except as such liability if expressly assumed by the referee in writing. With the approval of the court the referee may employ an attorney in rare cases.

The referee must submit a report of sale to the court for confirmation, including a description of the property sold to each purchaser, the name of the purchaser, the sale price, the terms and conditions of sale and any security, any amounts payable to lien holders, a statement as to contractual or other arrangements or conditions as to agent’s commissions, and the material facts relevant to the sale and the confirmation proceeding.

In order to make effective use of a referee’s services in a partition action, the parties need to identify all of the matters to be disposed of and the skills that will be required of the referee. The parties also have to decide what the extent of the referee’s authority should be with respect to the issues other than sale and division of the property. There are opportunities for creativity on the part of the parties and their counsel in working with a court appointed referee. By working together in a cooperative fashion, the parties can take advantage of the expertise of individuals with various backgrounds to address whatever the situation may require. Since the partition itself requires the use of a referee it makes sense to give him or her all of the powers that are necessary in order to resolve any related disputes. Doing so will save time and expenses for the parties and avoid unnecessary litigation before the court.

If you need legal assistance with a partition action or a court appointed referee, please contact our law firm.