The California Apartment Association today urged the California Judicial Council to revisit its decision to suspend virtually all evictions in the state, saying the council’s move creates an unlevel playing field that will protect banks and tenants but leave rental property owners vulnerable well after the COVID-19 crisis ends. 

The council’s decision, made Monday during an emergency meeting, allows tenants, including those with the ability to pay, to withhold rent without fear of eviction but leaves landlords struggling to pay their mortgages without protection from foreclosure.

CAA sent council members this letter, which includes recommendations to revise the eviction rule adopted by the council earlier this week and make it more consistent with Gov. Newsom’s COVID-19 eviction moratorium.

CAA’s suggestions seek to preserve the council’s goal — protecting tenants from unnecessary evictions during the COVID-19 pandemic — while still allowing landlords to terminate tenancies when a narrow set of justifiable circumstances exist.

The council’s vote effectively put on hold all unlawful detainer actions until 90 days after the conclusion of California’s COVID-19 state of emergency, which, given the seriousness of the pandemic, could remain in effect for years. The council’s move also goes much further than Gov. Newsom’s eviction moratorium, which shields from eviction only tenants who are unable to pay the rent due to COVID-19 financial hardships.

Under the council’s rule, evictions can only proceed for circumstances that threaten “public health and safety,” however, these terms are not adequately defined in the rule, making evictions for these reasons impracticable. Tenants who engage in disruptive behavior, such as making noise at all hours of the night or harassing another renter in a way that falls short of being criminal activity, will enjoy the benefits of the council’s eviction suspension while their neighbors suffer. Also under the rule, landlords may not evict tenants who are able to pay rent but refuse to do so, such as by participating in one of the unlawful rent strikes now underway in California.

“The Judicial Council’s vote Monday invites tenants to withhold their rent even if they have the ability to pay it, leaving landlords struggling to pay their own bills and keep their independent vendors or employees working,” said Tom Bannon, chief executive officer for CAA.   

Bannon further pointed out that over half of the 6 million rental units in California are in buildings with less than five units, including over 2 million single-family rentals.  Most of these smaller buildings are owned by mom-and pop-landlords, he said, and many of them count on the rent to pay the building expenses and their own personal expenses.

Although the council’s rule suspends judicial foreclosures, the vast majority of foreclosures in California are not of this type – they do not go through the court process – so most landlords at risk of losing their property due to unpaid rent remain vulnerable.

To make the council’s rule workable, CAA has recommended the following:

1. Statement of protection at time of filing: Require a landlord filing an unlawful detainer action to tell the court under oath whether the resident qualifies for protection under the governor’s executive order.

2. Certify compliance before judgment is entered: Require the landlord, or their attorney, to certify at the time a default judgment is requested (i.e., when the resident fails to respond to the unlawful detainer filing) that the resident either: (a) doesn’t qualify for protection under the governor’s executive order, or (b) does qualify, and has been given the extra response time they are entitled to under the executive order.

3. Judges sign off on all judgments: Suspend the ability of the court clerk to enter default judgments in unlawful detainer cases to ensure that all unlawful detainer judgments are reviewed by a judge.

4. Simple process for residents to seek relief from improper judgments: Provide simple “fill in the blank” forms for a resident to request a hearing for a judgment to be reconsidered if they claim a default judgment was entered against them in violation of their rights under the executive order or a local eviction moratorium.

5. Allow pre-lockout claims to be considered: Suspend the optional “pre-judgment claim of right to possession” process – which allows landlords to have an unlawful detainer judgment apply to both known and unknown occupants in a property – and expand the ability of residents to request a post-judgment hearing on whether their rights under the executive order or a local eviction moratorium before a lock-out can occur.

CAA believes that these measures will ensure that there are multiple checks in the process so that residents – even if they are not represented by an attorney – are not evicted when they are protected by either the governor’s executive order or a local eviction moratorium.

Regardless of the council’s action, CAA continues to call on its members to act with compassion toward residents who face coronavirus-related hardships and to follow CAA’s Safe at Home Guidelines, which include halting most evictions through May 31.