Moratorium on No-Fault Eviction: What It Means

April 10, 2020April 11, 2020 Mark Elliot COVID-19, eviction moratorium, no-fault-termination

The revised emergency measures related to COVID–19 adopted by Beverly Hills is notable for the moratorium on eviction for non-payment of rent and the moratorium on rent increases. But as important is a moratorium on no-fault eviction. State law allows for terminating a tenancy for reasons where the tenant is not at fault and localities are preempted from stepping in with more restrictive regulation. But that’s gone out the window during this emergency. Here is what you need to know about no-fault eviction.

To start, let’s clarify the distinction between ‘termination’ and ‘eviction.’ Termination is the lawful but involuntary discontinuation of a tenancy. The landlord may want to move-in a relative, for example, or want to remodel or redevelop the property. Eviction refers to the process by which the premises is restored to the landlord. Most commonly, though, ‘eviction’ refers generically to an effort to remove a tenant involuntarily through the legal process or otherwise.

What Does the Ordinance Say?

Beverly Hills city council adopted a replacement moratorium ordinance that prohibits eviction for non-payment of rent (when a tenant can demonstrate a ‘substantial’ reduction in income related to COVID–19) and also disallows eviction for any just-cause reason when the tenant is not at fault. The key passage from moratorium Ordinance 20-O-2806:

During the period of local emergency declared in response to COVID- 19, no landlord shall endeavor to evict a tenant in either of the following situations: (1) for nonpayment of rent if the tenant demonstrates that the tenant is unable to pay rent due to substantial financial impacts related to COVID–19, or (2) for a no-fault eviction, unless necessary for the health and safety of tenants, neighbors, or the landlord, other than based on illness of the tenant or any other occupant of the residential rental unit. — Ordinance #20-O–2806 section 1.1(a)

That’s a two part moratorium.

First, a full-stop on the eviction process for non-payment if the tenant has notified the landlord in writing, within seven days after rent is due, using the city’s form, that the tenant cannot pay full rent. Once notified, the landlord “shall not…file or prosecute an unlawful detainer action based on a 3-day pay or quit notice, or otherwise seek to evict for nonpayment of rent.” That is extraordinary.

State law is quite clear that eviction is a consequence of tenant default on the payment of rent:

A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer when he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held…. — Code of Civil Procedure §1161(2)

The flowery language suggests how long it has been on the law books in California: 150 years! The statute was enacted in 1822. But the COVID–19 emergency has upended this bedrock of tenant law (and closed the courthouse to landlords too).

The second aspect of the moratorium concerns eviction for a variety of reasons that are not the fault of the tenant. that would, in ordinary circumstances, be allowed even when the tenant is not at fault. From the ordinance:

For purposes of this Ordinance, “no-fault eviction” refers to any eviction for which the notice to terminate tenancy is not based on alleged fault by the tenant, including but not limited to, eviction notices served pursuant to Code of Civil Procedure sections 1161(1), 1161(5), or 1161b, use by landlord or relatives as specified in Beverly Hills Municipal Code Chapters 5 and 6, demolition or condominium conversion, major remodeling, and the Ellis Act, which is called withdrawal of residential rental structure from the rental market in the Beverly Hills Municipal Code. — Ordinance #20-O–2806 section 1.1(c)

The ordinance subsection enumerates several lawful reasons for terminating a tenancy through no fault of the tenant and none is enforceable during the local emergency:

Use by Landlord (Beverly Hills Municipal Code 4–5–509 and 4–6–6(H));
Demolition or Condominium Conversion (4–5–511 and 4–6–6(J));
Major Remodeling (B.H.M.C. 4–5–12 and 4–6–6(K)); and,
Withdrawal of Residential Rental Structure From The Rental Market (4–5–513 and 4–6–6(L)).

Additionally the moratorium ordinance makes reference to three reasons for eviction that are no longer enforceable during the local emergency:

Expiration of a fixed-term lease or termination of employment of a resident building manager (CCP §1161(1));
Failure of a tenant to deliver the premises after giving written notice to the landlord (CCP §1161(5)); and,
When a tenant is duly noticed to vacate pursuant to foreclosure on the property (CCP §1161b).

The moratorium puts the brake on tenancy termination and eviction for any no-fault reason because the objective is to keep people housed for the duration, at least, of the state’s stay-at-home order N–33–20.

Also on the Menu: a Moratorium on Ellis Evictions

The moratorium includes an important provision concerning the Ellis Act. Ellis a controversial state statute that allows the owner of a residential rental property to go out of the rental business. From Government Code §7060:

No public entity, as defined in Section 811.2, shall, by statute, ordinance, or regulation, or by administrative action implementing any statute, ordinance or regulation, compel the owner of any residential real property to offer, or to continue to offer, accommodations in the property for rent or lease… — Government Code §7060

Let’s paraphrase: no city shall compel a landlord to continue to offer accommodations in a rental property for rent. The issue is preemption: the state law restricts a city with rent control to force a landlord to rent accommodations. It can impose certain conditions to “mitigate any adverse impact on persons displaced by reason of the withdrawal from rent or lease,” the statute says, such as extending the required notice from 120 days to perhaps a year. (Beverly Hills has added no such condition, so only 120 days is required though seniors can get a year to stay in the unit.)

But ultimately the landlord can fold his tent and evict his tenants. Ellis, more than any other law, is responsible for the great loss of relatively affordable rental units across California.

The moratorium ordinance stops the clock on the Ellis process:

During this emergency, any notice served by a landlord on a tenant under Section 4–5–513 or Section 4–6–6 L of the Beverly Hills Municipal Code is hereby tolled. — Ordinance #20-O–2806 section 1.1(c)

Tolled? To toll a statute means to literally stop the clock. In the case of Ellis, the required 120 days notice period is paused for the duration of the emergency period. The clock starts ticking again once the emergency declaration is withdrawn.

For example, a tenant who was notified of her tenancy termination pursuant to GOV §7060.4(b) before the local emergency declaration took effect (March 15th) would see her 120-day countdown paused (tolled) and restarted after the emergency concludes. A three-month emergency would add 120 more days to whatever was her time remaining in the unit. Ask not for whom the statute is tolled, Ellis tenants, it is tolled for thee!

The practical effect of the moratorium is that no tenancy will be terminated when the tenant is not at fault. The protection against no-fault eviction extends to all residential tenants in Beverly Hills.

For-Cause Termination is Not Affected

The moratorium on eviction does not extend to at-fault termination for reasons enumerated in Code of Civil Procedure §1161. With that notable exception when it comes to default on paying the rent. But be cautioned: However violating some condition of the lease would still be an at-fault reason for termination. As the state law puts it, “neglect or failure to perform other conditions or covenants of the lease or agreement.”

Correctable violations of conditions include the keeping of a pet or allowing an ‘unauthorized occupant’ to stay in the unit, for example. Violations would trigger a three-day notice to correct. Too often tenants don’t know what is in their rental agreement. It is prudent to review the lease from time to time to get reacquainted with the surprises therein!

However certain activities are not correctable and would trigger an immediate termination of the agreement. Code of Civil Procedure §1161.4 sums them up:

Any tenant, subtenant, or executor or administrator of his or her estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or his or her successor in estate, shall upon service of three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter.

(‘Demised premises’ merely means the part of the premises leased by the tenant.)

There are other non-correctable violations that are classified as public nuisances and trigger immediate termination.

For purposes of this subdivision, a person who commits or maintains a public nuisance as described in Section 3482.8 of the Civil Code, or who commits an offense described in subdivision (c) of Section 3485 of the Civil Code, or subdivision (c) of Section 3486 of the Civil Code, or uses the premises to further the purpose of that offense shall be deemed to have committed a nuisance upon the premises.

Let’s break that down! Civil Code §3482.8 bans dogfighting and cockfighting. (Don’t see that too often in Beverly Hills!) CIV §3485 concerns “illegal conduct involving an unlawful weapons or ammunition” as documented by an arrest or the observations of a law enforcement officer. CIV §3486 concerns “illegal conduct involving a controlled substance” on the premises (again as documented by arrest of observation by a law enforcement officer).

There is another more complex category that can immediately terminate a tenancy: domestic violence. State law protects a victim, generally speaking, unless the victim continues to allow the nuisance behavior to continue.

However a harasser does not get much slack! Pursuant to Code of Civil Procedure §1164.3 a landlord can terminate the tenancy of an occupant of the unit if that person was subject to a protective order for domestic violence, sexual assault, stalking, human trafficking, or abuse of an elder or dependent adult — AND — is believed by the landlord to pose a physical threat to other tenants or guests (or otherwise disturbs a tenant’s quiet enjoyment of the premises). That is some wide latitude to get rid of a so-called problem tenant.

Let’s recap! The moratorium will keep tenants affected by COVID–19 housed by barring eviction whenever the tenant is not at fault except for situations where health and safety (not related to COVID-19 sickness) is concerned. But it does not put the brake on at-fault evictions with that single exception of non-payment when the tenant can demonstrate an inability to pay related to COVID–19.

Got any question about the ordinance? Get in touch with Renters Alliance!