Apr 9, 2020
By: John J. Bauters
In the face of the COVID-19 crisis, Governor Newsom has risen to the challenge, providing a steady hand and strong, calm leadership. His actions have unquestionably helped keep Californians healthy and mitigated the spread of COVID-19. Despite these many successes, a different type of crisis is lurking on the horizon – an eviction crisis – and it is preventable.
On March 16, 2020, Governor Gavin Newsom issued Executive Order N-28-20, giving local governments across the state additional authority to impose substantive limitations on residential and commercial evictions in wake of the COVID-19 State of Emergency. Subsequent to the order, several dozen cities and counties around the state enacted Emergency Ordinances and Moratoria aimed at protecting tenants by placing restrictions on evictions.
More Time: Necessary, but Not Sufficient
The patchwork of local laws that has emerged in the following three weeks provide varying levels of protections to some, but not all, of California’s residents. Amidst calls for the Governor to do more to protect tenants, he issued Executive Order N-37-20 on March 27th. EON 37-20 gives tenants 60 more days than current law allows to respond to an eviction complaint filed by their landlord. Even so, this additional time only applies to a tenant who notifies the landlord in writing within 7 days of rent coming due that they were unable to pay rent because they lost employment, work hours, were sick or missed work due to childcare as a result of COVID-19.
Extending the time for a tenant to answer a complaint, in itself, is insufficient. Most of the rights and defenses a tenant has under eviction law are limited to the time period provided in the eviction notice the landlord gives the tenant. Therefore, even if a tenant pays a landlord all of the unpaid rent, but does so after the notice has expired or a court case has been filed, a landlord may still get an order for possession of the rented property.
Best Practices: Prohibit Eviction Notices, Abolish Late Fees, Require Repayment Plans
Recognizing the problem, the Judicial Council of California adopted Emergency Rule 1 on April 6, 2020. This rule prevents the court from issuing a summons for any complaint a landlord may file after the notice period expires. The rule also prevents entry of default or a default judgment against a tenant for a period extending 90 days beyond the end of the current State of Emergency.
Chris Sununu, the Republican Governor of New Hampshire, has gone even further. Emergency Order 4, issued pursuant to Executive Order 2020-4, states that “No [property] owner… may initiate eviction proceedings … during the State of Emergency.” Whereas Governor Newsom has added time to filing an answer to a complaint, and the Judicial Council has stopped issuing summonses, states like New Hampshire are prohibiting an eviction action from being filed at all.
In this crisis, Newsom and the California Legislature should turn to the best practices in order to protect Californian renters. At a bare minimum, landlords should be prohibited from giving tenants a notice to terminate tenancy absent circumstances that threaten the public health, safety or welfare. Late fees should be explicitly prohibited. While there are constitutional challenges with waiving rent, the state should require property owners who receive mortgage assistance for occupied rentals to pass those benefits on to tenants in the form of rent forgiveness.
For additional measures, the Governor can look to local governments that are leading the way; for example, San Francisco requires a 6-month repayment plan be offered to a tenant before an eviction proceeding. Emeryville has approved one that spans 12 months at first reading.
Local policy initiatives like these need to be implemented statewide. Governor Newsom should invite local leaders and tenant advocates to the table to do what he has done in other dimensions of his crisis response, and order comprehensive protection for the millions of people diligently complying with his shelter-in-place order at the cost of their livelihood. No Californian should be sheltering in place while worried about how they will pay their rent, and whether their landlord will work with them when the crisis abates. We do not need to compound our existing homelessness problem by ushering in a new era of housing insecurity. This is a problem we can prevent with bold action.
Housing is healthcare. More than any other type of personal protective equipment discussed today, housing offers a combination of personal and physical safety and protection that enables all of the Governor’s other executive orders to be as successful as they are. Leaving gaps in tenant protections undermines those efforts by exposing millions of Californians to the risk of homelessness. Let’s bring state and local leaders together and demonstrate to the rest of the county that here in California, we are all really in this together.
John J. Bauters is a former tenant attorney and works as a policy and budget expert on homelessness and criminal justice reform. He is a current Councilmember and the former Mayor of the City of Emeryville, California.