The ‘Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020’ (AB 3088) was enacted on August 31st to protect COVID–19 affected tenants from eviction. And just in the nick of time: just hours later the California courts would resume processing evictions for non-payment of rent! But lawmakers had another motive: to make COVID–19 evictions policies consist statewide by preempting local measures (like the Beverly Hills eviction moratorium) under certain circumstances. Now it looks like Beverly Hills unwittingly played into the hands of the state and ceded authority over our own COVID–19 protections.
The backstory: August was crunch time in Sacramento because the state’s Judicial Council, the body that governs the administration of the superior courts, was getting impatient with the legislature. Nearly six months into the pandemic, the courts were still closed to the routine business of evictions to keep people housed, but eviction cases from before the pandemic had backed-up in the pipeline and landlords were ready to file new actions to oust nonpaying tenants.
The Judicial Council had months earlier signaled an end to the court’s hiatus and in August it made good on that threat. As of September 1st eviction cases would again proceed. It was a pointed reminder to the governor and the legislature that it was up to them — and not the courts — to sort out the looming eviction crisis.
The legislature moved AB 3088 to the governor’s desk in record time. It was a ‘hail mary’ pass to keep housed those that couldn’t pay full rent. The governor at the 11th hour signed it with only hours to spare. The bill includes important tenant protections related to COVID–19 in addition to protection against eviction for non-payment of rent. It also eases the threat of foreclosure for smaller landlords.
Most notably, AB 3088 endeavors to preempt local measures like our own Beverly Hills moratorium on eviction for non-payment, which was enacted as part of our local emergency declaration pursuant to an urgency ordinance adopted by city council in March 2020. The moratorium has been affirmed unchanged by city council through a series of successive urgency orders. The most is ordinance #20-O-2818 adopted on September 1st.
In a 30-word clause buried 24,000 words into a 25,000 word bill there is the provision to preempt a local measure like our moratorium when it was adopted after August 19th — a reach back nearly two weeks before AB 3088 was signed by the Governor. Added to the state’s Code of Civil Procedure is the relevant subsection (a)(1):
CCP §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.
That provision effectively preempts our moratorium on eviction for non-payment because city council adopted the most recent of the urgency ordinances on September 1st. Preempting the protections that city council have extended to residential tenants in Beverly Hills is in keeping with the legislature’s intent to establish such policies as a “matter of statewide concern.”
We will follow with a more in-depth explainer of the law soon, but AB 3088 suggests some top-line concerns for tenants in Beverly Hills who have delayed the payment of rent. Briefly:
- The rent repayment date for all back rent incurred prior to September 1st is now March 1, 2021. That back rent is payable in full by that date. A tenant who cannot pay won’t be evicted but the landlord can move to obtain a court judgement and treat that owed rent as civil debt (with all the remedies available to a creditor).
- Tenants who delay the payment of rent that was due from September 1, 2020 through January 31, 2021 must not only file a declaration with the landlord but ALSO pay at least 25% of that total rent due for the period and that 25% is payable by February 1st. AB 3088 effectively does not let any tenant defer more than 75% of the rent when averaged over that five-month period.
- Tenants who have delayed rent can expect to receive a new 15-day pay-or-quit notice from the landlord. Under AB 3088 this is now the first step in requesting COVID–19 forbearance. (Tenants who delayed rent due from March through August and who also delay rent due after September 1st may receive two 15-day notice.)
- To receive protection from eviction the tenant must complete and return the COVID financial distress form(s) to the landlord with any documentation if required.
To sum up, tenants who delay rent are protected from eviction for non-payment if the appropriate condition is satisfied depending on the tenant’s circumstance: 1) The tenant files a declaration with the landlord in a timely manner (no financial documentation is necessary); 2) The tenant files the declaration along with documentation if the household income is greater than $100,000; 3) And for rent due between September 1st and January 31st, the tenant also pays 25% of that total by February 1st.
If the tenant cannot satisfy the appropriate condition then the tenant may be evicted. As for rent arrears incurred prior to September 1st but not paid in full by March 1st, the tenant cannot be evicted; however after that date the landlord can obtain a money judgement for rent owed during that period.
Because AB 3088 preempts our local moratorium the city is no longer in the loop with regards to rent forbearance and repayment. In the words of the statute, it is no longer a “municipal affair.”
Incorrect Guidance from RSO
AB 3088 is a complex law that begs explanation. But that explanation was slow in coming from the rent stabilization office and indeed it has not yet arrived. Apparently city officials presumed that our local moratorium would prevail over AB 3088 but that looks like an unintentional oversight. Consequently the rent stabilization office posted barely 100 words of guidance about how the law affects Beverly Hills COVID-19 tenants:
Please be informed that the recent state Assembly Bill 3088, 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.
Renters Alliance had posted advice for tenants prior to the city’s posted guidance. In that advice we assured tenants that our local moratorium prevailed. But our advice was wrong and stemmed from too-quick a reading of the law. Under certain conditions, it says, a moratorium may be ‘grandfathered’ but we didn’t pay close enough attention to the fine print (so to speak). Tipped-off by a sharp reader we spent the weekend with AB 3088 and found that 30-word provision buried deep in AB 3088. And it does appear to change the rules for Beverly Hills tenants.
How Did COVID–19 Tenants Lose Our Local Moratorium?
Recall that pursuant to Code of Civil Procedure §1179.05(a)(1), the provisions of AB 3088 preempt the local measure when the “extension, expansion, renewal, reenactment, or new adoption of a measure” occurs after August 19th. The city ran afoul of that provision when it adopted the most recent urgency ordinance #20-O–2818. From the minutes of the September 1st council meeting:
The City Council adopted a cap on third-party food delivery fees on June 16, 2020. This cap expired on August 31, 2020. The proposed ordinance would extend the cap on third-party food delivery fees through the end of the local declaration of an emergency. This ordinance would replace the emergency ordinance adopted at the August 4, 2020 City Council meeting and would keep in place all other aspects of the current urgency ordinance.
Had officials looked closely at AB 3088 they could have refrained from adopting the successor urgency ordinance. (The ordinance in effect at the time had no sunset clause. “This Ordinance shall remain in effect until it is superseded by another Ordinance adopted by the City Council.”)
Ironically the successor ordinance adopted by council had one very specific objective: to renew the lapsed cap on restaurant food delivery fees in Beverly Hills. City council at the September 1st meeting unanimously agreed to renew it; indeed that was the only substantive change to the prior ordinance. And it was a slam-dunk as the discussion concluded in just six minutes. As one councilmember observed it was record-short time for COVID–19 measure!
Unfortunately the delivery fees cap renewal tripped the §1179.05(a)(1) preemption provision (“extension, expansion, renewal, reenactment, or new adoption of a measure”) and at that point the provisions of AB 3088 trumped those specified in the local moratorium.
In part that may be understandable. AB 3088 is a complex law that was rushed to the governor’s desk. He signed it on August 31st the day before the council meeting. Had city officials tracked the legislature’s discussion closely, or perhaps reviewed the text of bill prior to the meeting, then city council could have chosen to renew the delivery-fee cap in a separate ordinance (or perhaps renewed it via emergency order). AB 3088 was not even mentioned during the discussion.
So our city, presumably like many others, unwittingly played right into the legislature’s hands. We sent the rent stabilization office a query last Thursday (October 1) about the preemption issue and we’re still waiting to hear the city’s definitive view on the matter. In the meantime this current AB 3088 guidance remains posted.