Focus on Single-Family Rentals: Terminating Tenancies and Evictions in Rent Control Exempt Rental Pr

A Discussion of Senate Bill 91

Since March 2020 and the era of COVID, the ability to terminate a tenancy and bring forth an unlawful detainer (eviction) action in non-rent-controlled properties has drastically changed. This article will focus on the ability to terminate a tenancy and evict a tenant during “COVID times” versus “non-COVID times.” The emphasis will be on properties that are not subject to rent control or any local eviction restrictions, such as single-family homes or new construction. After reading this article, you should be able to identify the conditions under which a tenancy can be terminated and what types of evictions can proceed during “normal” times versus COVID times.

Since local rent control and just-cause eviction restrictions (such as Los Angeles’ Rent Stabilization Ordinance and Los Angeles County’s permanent rent control laws) changed many of the normal eviction rules, this article will not discuss local rent control or just-cause eviction restrictions. Similarly, this article will not discuss local COVID eviction restrictions that many localities have established throughout the state. Instead, this article will focus on the state law that restricts evictions during COVID, known as Senate Bill 91.

Please note that now more than ever before in recent history, the eviction rules change frequently and since many of the rules are new and not drafted clearly, there is a level of ambiguity and uncertainty that exists. Some of these new rules have yet to be tested in court. Because of these uncertainties, some landlords will be better off waiting to pursue an eviction until the COVID limitations on evictions expire. Due to these uncertainties and ambiguities, and since no two cases are alike, nothing herein shall be considered legal advice and the following article is to be used as general information only. Everyone should consult with their own legal counsel prior to deciding on a course of action.

Evictions in Normal Times

Evictions during normal, non-COVID times are governed by several statutes. Some of the main statutes setting forth the reasons for evictions are California Code of Civil Procedure 1161, Civil Code 1946 and 1946.1, and Civil Code 789. Generally, in properties that are not subject to just-cause eviction restrictions, a landlord can terminate a month-to-month tenancy by simply providing a tenant with a 30-day notice if the tenant has resided at the home for less than one year, or a 60-day notice if the tenant has lived at the home for more than one year. The landlord is not required to provide the tenant with a reason why the tenancy is being terminated.

To put it another way, in these instances, just-cause is not normally needed unless the property is subject to a local restriction or state law. When the landlord simply wishes to terminate a month-to-month tenancy, these types of tenancy terminations are sometimes called “no-fault” evictions since the landlord wants to regain possession of the property not because the tenant is doing something they should not be doing (or not doing something that they should be doing), but rather for some other reason. For example, perhaps the landlord wants to sell the property and wants to be able to sell it as a vacant unit. Or perhaps the owner or their family wants to move into the property. Assuming that there are no local or state restrictions on evictions, these types of month-to-month tenancies can be terminated with a 30 or 60-day notice and without providing any reason to the tenant. If the landlord serves the tenant with a 30 or 60-day notice, as the case may require, and the tenant remains in possession of the property, the landlord will then need to initiate an unlawful detainer (eviction) action in court. The appropriate court is determined based on the location of the rental property.

There are also evictions that are considered “at-fault.” A common example of an at-fault eviction is when the tenant fails to pay the rent when the rent becomes due. Another common type of at-fault eviction is when the tenant violates a material term of the rental agreement, such as having pets when the rental agreement says no pets or smoking when the lease prohibits it. A third common at-fault eviction is when the tenant is subleasing or assigning when the lease limits occupancy to the named tenants only. Yet another at-fault eviction is when the tenant is causing a nuisance or is damaging the property. Each of these examples would be considered an at-fault eviction and the landlord would need to serve the tenant with an appropriate three-day notice. If the tenant failed to follow the instructions outlined in the three-day notice, the landlord would then need to file an unlawful detainer action in court.

Senate Bill 91 – Evictions During COVID

While similarities exist, evictions during COVID are for the most part, quite a bit different compared to evictions during normal times. There are many more restrictions on evictions during COVID. Two state laws were passed that deal with evictions during COVID. The first, which became law several months ago, was Assembly Bill 3088. Many of the provisions in that law expired on January 31, 2021, and a new state law, Senate Bill 91, became law. Senate Bill 91 is the state law in effect today and the eviction restrictions in Senate Bill 91 as they relate to initiating an eviction proceeding are in effect through June 30, 2021. While there are many different parts to Senate Bill 91, only the parts relating to an eviction filing will be discussed in this article.

To understand exactly what type of eviction matter can be started between now and June 30, 2021, look to California Code of Civil Procedure, § 1179.03.5 which is discussed in Senate Bill 91. Here are the relevant sections of 1179.03.5:

(a) Before July 1, 2021, a court may not find a tenant guilty of an unlawful detainer unless it finds that one of the following applies:

• (1) The tenant was guilty of the unlawful detainer before March 1, 2020.
• (2) In response to service of a notice demanding payment of COVID-19 rental debt pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161, the tenant failed to comply with the requirements of Section 1179.03.
• (3) (A) The unlawful detainer arises because of a termination of tenancy for any of the following:
  • (i) An at-fault just cause, as defined in paragraph (1) of subdivision (b) of Section 1946.2 of the Civil Code.
  • (ii) (I) A no-fault just cause, as defined in paragraph (2) of subdivision (b) of Section 1946.2 of the Civil Code, other than intent to demolish or to substantially remodel the residential real property, as defined in subparagraph (D) of paragraph (2) of subdivision (b) of Section 1946.2.
    • (II) Notwithstanding subclause (I), termination of a tenancy based on intent to demolish or to substantially remodel the residential real property shall be permitted if necessary, to maintain compliance with the requirements of Section 1941.1 of the Civil Code, Section 17920.3 or 17920.10 of the Health and Safety Code, or any other applicable law governing the habitability of residential rental units.
  • (iii) The owner of the property has entered into a contract for the sale of that property with a buyer who intends to occupy the property, and all the requirements of paragraph (8) of subdivision (e) of Section 1946.2 of the Civil Code have been satisfied.

Let us analyze these sections, one by one, in easier-to-understand language:

• “The tenant was guilty of the unlawful detainer before March 1, 2020.” This provision is less applicable now than it was earlier in the pandemic. The reason why this provision is not as important now is because most people who had cases from early 2020 have already resolved those cases. If the tenant was guilty of the unlawful detainer prior to March 1, 2020, the eviction can continue now, regardless of the reason for the eviction.
• “In response to service of a notice demanding payment of COVID-19 rental debt pursuant to subdivision (e) of Section 798.56 of the Civil Code or paragraph (2) or (3) of Section 1161, the tenant failed to comply with the requirements of Section 1179.03.” This reason for eviction requires a bit more of an explanation. Senate Bill 91 and the statewide COVID eviction restrictions fundamentally change the ability to evict a tenant due to non-payment of rent. Instead of the normal 3-day notice to pay rent or quit which is used during non-COVID times, AB3088, and later SENATE BILL 91, requires that landlords create and serve on the non-paying tenant a 15-day notice to pay rent or quit. This effectively gives tenants 5-times more time to “cure” the default by paying the past-due rent in 15-days rather than the normal 3-days.

But that is not the worst of it. Along with the 15-day notice, landlords must also provide the tenant with a notice from the State of California. This notice outlines the main tenant rights under the state law and explains that the tenant may qualify for rental assistance. The law also requires that the landlord provide the tenant with an unsigned declaration form. The declaration form essentially tells the landlord that the tenant cannot pay all or some of the rent because of a COVID-related reason. If the tenant signs and returns the declaration to the landlord within the 15-day period, then what happens next will depend on whether the past-due rent covered the period of March 1, 2020 through August 31, 2020 (the “Protected Time Period”), or September 1, 2020 through June 30, 2021 (the “Transition Time Period”).

If the 15-day notice was for the “Protected Time Period,” and the tenant signs and returns the declaration to the landlord, the landlord cannot proceed with an eviction case ever. The past-due rent can only be recovered through a small claims or other court case, but not as an eviction case. If the 15-day notice was for the “Transition Time Period,” and the tenant signs and returns the declaration to the landlord, any possible eviction is on hold. The tenant has up to June 30, 2021 to pay to the landlord 25% of the rent due under the “Transition Time Period.” If the tenant fails to pay the 25% by June 30, 2021, the landlord would then be able to file an eviction in court. However, if the tenant pays the 25% by June 30, 2021, the remaining 75% can only be recovered through small claims or another court action, but not as an eviction case.

If the tenant is a high-income tenant as defined in the law, and the landlord has knowledge of this fact ahead of time, such as when the tenant filled out the rental application with employment information showing high income, the landlord can request documentation from the tenant to support the loss of income. But if the landlord does not have prior knowledge that the tenant is a high-income tenant, the landlord must take the tenant’s word for it when the tenant signs and returns the declaration to the landlord and cannot ask for documentation to support the claim. As if this is not enough already, let’s assume the tenant does not sign the declaration, and thus the landlord decides to file an unlawful detainer action in court. Well, the tenant can file a motion in court claiming mistake, inadvertence, surprise, or excusable neglect. If the judge believes the tenant, the eviction case would be dismissed and the landlord would be back at the beginning again, after already having spent time and money on the case.

“An at-fault just cause, as defined in paragraph (1) of subdivision (b) of Section 1946.2 of the Civil Code.” The government could not make it easy…now we must look to another law, Civil Code § 1946.2, to determine what is considered an “at-fault just cause” reason for eviction. Here is a list of what is considered “at-fault just cause” reasons under 1946.2:

• (A) Default in the payment of rent.
• (B) A breach of a material term of the lease, as described in paragraph (3) of Section 1161 of the Code of Civil Procedure, including, but not limited to, violation of a provision of the lease after being issued a written notice to correct the violation.
• (C) Maintaining, committing, or permitting the maintenance or commission of a nuisance as described in paragraph (4) of Section 1161 of the Code of Civil Procedure.
• (D) Committing waste as described in paragraph (4) of Section 1161 of the Code of Civil Procedure.
• (E) The tenant had a written lease that terminated on or after January 1, 2020, and after a written request or demand from the owner, the tenant has refused to execute a written extension or renewal of the lease for an additional term of similar duration with similar provisions, provided that those terms do not violate this section or any other provision of law.
• (F) Criminal activity by the tenant on the residential real property, including any common areas, or any criminal activity or criminal threat, as defined in subdivision (a) of Section 422 of the Penal Code, on or off the residential real property, that is directed at any owner or agent of the owner of the residential real property.
• (G) Assigning or subletting the premises in violation of the tenant’s lease, as described in paragraph (4) of Section 1161 of the Code of Civil Procedure.
• (H) The tenant’s refusal to allow the owner to enter the residential real property as authorized by Sections 1101.5 and 1954 of this code, and Sections 13113.7 and 17926.1 of the Health and Safety Code.
• (I) Using the premises for an unlawful purpose as described in paragraph (4) of Section 1161 of the Code of Civil Procedure.
• (J) The employee, agent, or licensee’s failure to vacate after their termination as an employee, agent, or a licensee as described in paragraph (1) of Section 1161 of the Code of Civil Procedure.
• (K) When the tenant fails to deliver possession of the residential real property after providing the owner written notice as provided in Section 1946 of the tenant’s intention to terminate the hiring of the real property or makes a written offer to surrender that is accepted in writing by the landlord but fails to deliver possession at the time specified in that written notice as described in paragraph (5) of Section 1161 of the Code of Civil Procedure.

Do you see the pattern here? An easy way to tell if the eviction is an “at-fault” eviction is if the tenant is doing something that they are not supposed to be doing, or conversely, if they are not doing something that they ought to be doing. With respect to COVID at-fault evictions, there are special rules for non-payment cases as discussed earlier. For other types of at-fault evictions, typically a 3-day notice can still be used. There are, however, some special rules that need to be considered, plus some local jurisdictions limit certain at-fault evictions during COVID, including those based on unauthorized occupants, nuisance, and pets.

“A no-fault just cause, as defined in paragraph (2) of subdivision (b) of Section 1946.2 of the Civil Code, other than intent to demolish or to substantially remodel the residential real property, as defined in subparagraph (D) of paragraph (2) of subdivision (b) of Section 1946.2.” Let us go back to 1946.2 and see what qualifies as a “no-fault” eviction:

• (A) Intent to occupy the residential real property by the owner or their spouse, domestic partner, children, grandchildren, parents, or grandparents.
• (B) Withdrawal of the residential real property from the rental market.
• (C) The owner complying with any of the following: (I) An order issued by a government agency or court relating to habitability that necessitates vacating the residential real property. (II) An order issued by a government agency or court to vacate the residential real property. (III) A local ordinance that necessitates vacating the residential real property.

As you can see, a no-fault eviction is an eviction where the landlord wants to terminate the tenancy not because the tenant is doing something wrong, but rather because the owner wants possession of the property back for some other reason that does not necessarily have to do with the tenant. You will note the very limited number of no-fault permissible reasons. Some local eviction restrictions, including both the City and County of Los Angeles, prohibit no-fault evictions entirely while COVID restrictions are in effect.

• “Termination of a tenancy based on intent to demolish or to substantially remodel the residential real property shall be permitted if necessary, to maintain compliance with the requirements of Section 1941.1 of the Civil Code, Section 17920.3 or 17920.10 of the Health and Safety Code, or any other applicable law governing the habitability of residential rental units.” The rules here on substantial remodels are stricter than what is typically allowed under 1946.2. To evict based on this reason, the need for the work really needs to be substantial and pertain to the habitability of the property.
• “The owner of the property has entered into a contract for the sale of that property with a buyer who intends to occupy the property, and all the requirements of paragraph (8) of subdivision (e) of Section 1946.2 of the Civil Code have been satisfied.” This provision allows an owner to evict a tenant if the owner is selling the property. This reason for eviction can be used to evict a tenant from a single-family residence if certain conditions are met which are outlined in 1946.2(e)(8), and the tenant is on a month-to-month agreement, the buyer and the seller have entered into a purchase agreement (simply listing the property for sale is not sufficient), and the buyer intends to occupy the property. This reason for eviction cannot be used if the property is not alienable separate from the title to any other dwelling unit.

The above reasons are the only allowable reasons for eviction during COVID under Senate Bill 91. If the reason for the eviction does not fit into one of these at-fault or no-cause reasons, a landlord simply cannot terminate the tenancy while the COVID restrictions are in effect. In addition to requiring a just-cause reason (whether it is “at-fault” or “no-fault”), the court requires a new form, known as UD-101, to be filed. Depending on the court itself, some courts also require landlords to jump through additional hoops to proceed forward with the case, and many courts are not allowing clerks to enter default judgments and are instead requiring defaults to go through a judge. Eviction cases during COVID are oftentimes moving much more slowly than during normal times.

Conclusion

Where does this leave us? It should be clear that evictions during COVID under Senate Bil 91 are much more restrictive and limited than they are during normal times. Not only that, but courts are generally slower than usual and many courts require additional steps. All eviction filings now require the new UD-101 form. If you do not have a just-cause reason for the eviction (either “at-fault” or “no-fault”), you cannot evict a tenant under Senate Bill 91.

Attorney David Piotrowski has been representing landlords / plaintiffs by filing eviction cases against tenants. He is admitted to practice law in all California courts and the United States District Court for the Central District of California. He is a highly respected eviction attorney and is a frequent referral source for landlords, real estate agents, real estate brokers, and other attorneys. Mr. Piotrowski received a B.A. from UCLA and a J.D. from Southwestern University School of Law. For more information, go to: www.AttorneyDavid.com.