Governor Newsom signed AB 3088 at the end of August to establish a statewide framework for delaying and repaying back rent due to COVID-19 financial distress. The important legislation also defined a new process by which tenants request forbearance and imposed a deadline for the repayment of all rent due. The legislation explicitly preempts local measures like our Beverly Hills moratorium that has been in place since late March. Or doesn’t it?
In the weeks after the governor signed AB 3088, the ‘Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020,’ localities scrambled to make sense of what this complicated legislation meant for tenants and landlords because a key provision preempted local measures that otherwise establish protection against eviction for non-payment of rent due to COVID-19.
But we heard nothing from City of Beverly Hills about AB 3088. There was no clarification as to how the law affects residents who rent but who have delayed the payment of rent. So we posted our own reading of the law: the non-payment protections in our local moratorium were not preempted by AB 3088. And the next day the rent stabilization office posted barely 100 words of guidance on the rent stabilization website:
Please be informed that Assembly Bill 3088, [sic] does not affect the ongoing eviction protections provided to residential tenants in the City of Beverly Hills. The requirement under AB 3088, that the tenant pay at least 25% of their total rent between September 1, 2020 and January 31, 2021 (either in installments or as a lump sum paid before January 31, 2021), does not apply to residential tenants residing in the City of Beverly Hills.The current City of Beverly Urgency Ordinance remains in effect and applies to residential tenants residing in the City of Beverly Hills.
In the meantime we received a reader tip and looked again at AB 3088. There is a 30-word clause buried deep that preempts an “extension, expansion, renewal, reenactment, or new adoption of a [local] measure” that occurred after August 19th. Indeed the most recent Beverly Hills moratorium (ordinance #20-O-2818) was adopted by city council on September 1st — too late to be grandfathered. (Read more:
How Beverly Hills Tenants Lost Local COVID-19 Eviction Protections.)
It appears that both Renters Alliance and the City of Beverly Hills provided tenants with the wrong guidance. Our post has been removed but the city’s guidance is still posted at present. We’re waiting for a clarification: is it the city attorney’s opinion that our moratorium is preempted? If so then AB 3088 needs explaining.
What follows is a brief explanation of the key points of AB 3088 assuming that it does preempt our moratorium as regards delaying rent, repaying back rent and avoiding eviction for non-payment.
The Key Issue is Preemption
Our reading of AB 3088 is that Beverly Hills tenants who have already delayed the payment of rent, or will delay rent, will be affected by this legislation. Why? Because the legislation added these subsections to the Civil Code to preempt local measures like our COVID-19 moratorium on eviction for non-payment of rent.
1179.05. (a) Any ordinance, resolution, regulation, or administrative action adopted by a city, county, or city and county in response to the COVID-19 pandemic to protect tenants from eviction is subject to all of the following: (1) Any extension, expansion, renewal, reenactment, or new adoption of a measure, however delineated, that occurs between August 19, 2020, and January 31, 2021, shall have no effect before February 1, 2021. (2) Any provision which allows a tenant a specified period of time in which to repay COVID-19 rental debt shall be subject to all of the following: (A) If the provision in effect on August 19, 2020, required the repayment period to commence on a specific date on or before March 1, 2021, any extension of that date made after August 19, 2020, shall have no effect. (B) If the provision in effect on August 19, 2020, required the repayment period to commence on a specific date after March 1, 2021, or conditioned commencement of the repayment period on the termination of a proclamation of state of emergency or local emergency, the repayment period is deemed to begin on March 1, 2021. (C) The specified period of time during which a tenant is permitted to repay COVID-19 rental debt may not extend beyond the period that was in effect on August 19, 2020. In addition, a provision may not permit a tenant a period of time that extends beyond March 31, 2022, to repay COVID-19 rental debt.
The timing is the thing: the most recent Beverly Hills COVID-19 moratorium (urgency ordinance #20-O-2818) was adopted by city council on September 2, 2020. That is two weeks after the cutoff date in subsection 1179.05(a)(1) of the Civil Code that ends ‘grandfathering’ for local measures.
Preemption of our local moratorium affects Beverly Hills tenants in three important ways because AB 3088:
- Establishes new date for repayment of delayed rent: March 1, 2021;
- Establishes new obligation for a tenant to pay 25% of rent owed when the delayed rent was due on September 1st through January 31st;
- Establishes a new process for obtaining forbearance from the landlord which begins with a 15-day pay-or-quit notice from the landlord; and,
- Allows the landlord to collect rent owed as a debt after March 1st in small claims court or superior court at the landlord’s option.
Renters Alliance is working on a full explanation of AB 3088 and how it will affect Beverly Hills tenants in light of the preemption of our local moratorium. We welcome your experience dealing with the landlord in light of AB 3088. Please get in touch!