In light of the Coronavirus (“Covid-19”) Pandemic that has affected schools, businesses, housing, and employment, the City Council of San Jose adopted Ordinance No. 30381, an Urgency Covid-19 Moratorium on Evictions (“SJ-Moratorium”), on March 17, 2020. The SJ-Moratorium took effect on March 18, 2020, and expires on April 17, 2020, 60 days after its adoption, unless extended by the City Council.
On March 24, 2020, the Santa Clara County Board of Supervisors adopted Ordinance No. NS-9.287, an Urgency Covid-19 Eviction Moratorium (“SCC-Moratorium”). The SCC-Moratorium immediately took effect, applies to all residential and commercial tenancies, and expires on May 31, 2020, unless extended by the Board of Supervisors.
On March 27, 2020, Governor Gavin Newsom executed Executive Order N-37-20 (“State-Moratorium”). The State-Moratorium immediately took effect, applies to all residential tenancies and expires on May 31, 2020, unless extended by Governor Newsom.
The State-Moratorium takes precedence over the SCC-Moratorium, and the SCC-Moratorium takes precedence over the SJ-Moratorium; however, the SJ-Moratorium comes into effect only if a provision within the ordinance is more protective of the Affected Tenants. If the SJ-Moratorium does not contain provisions or does not provide more protection for tenants, then the landlord and tenant shall defer to the SCC-Moratorium and State-Moratorium.
As landlords and tenants must navigate and abide by the State-Moratorium, SCC-Moratorium, and SJ-Moratorium, below is a highlight of the SJ-Moratorium.
Application:
The SJ-Moratorium applies to all residential properties and all residential evictions for nonpayment of rent due to impacts of the Covid-19 outbreak.
All other ordinances, such as the Tenant Protection Ordinance, Housing Payment Equity Ordinance, Apartment Rent Ordinance, Ellis Act Ordinance, and Mobilehome Rent Ordinance remain in effect.
The official language of the SJ-Moratorium is available here.
Landlord’s Duty:
If a tenant does not pay rent during the SJ-Moratorium period, a landlord must serve the tenant the following documents:
- 3-Day Notice to Pay Rent or Quit, which shall be in compliance with Code of Civil Procedure Section 1161(2);
- Covid-19 Eviction Moratorium Required Notice; and
- Resources for San Jose Residential Tenants (Collectively the “SJ-Moratorium Packet”).
The landlord is not required to, but should also, serve the tenant copies of the State-Moratorium, SCC-Moratorium, and SJ-Moratorium. Following the service of all documents, the landlord must submit the 3-Day Notice to the San Jose Housing Department via USPS or online.
No-fault evictions are permitted under the State-Moratorium, SCC-Moratorium, and SJ-Moratorium; however, if the tenant is deemed an Affected Tenant, then a landlord is not permitted to proceed with a no-fault eviction. The State-Moratorium precludes all California Superior Courts from issuing a Writ of Possession against an Affected Tenant and precludes law enforcement from enforcing any Writs until the expiration date of May 31, 2020.
Noncompliance with the SJ-Moratorium is an affirmative defense for the Affected Tenant, and landlords may be subject to actual damages, exemplary damages, injunctive relief, costs and reasonable attorney’s fees and treble damages.
Tenant’s Duty:
Prior to or within three days after receipt of the SJ-Moratorium Packet, a tenant who has lost their income or a substantial amount of their income due to Covid-19 (“Affected Tenant”) must notify their landlord in writing of such financial hardship to stop an eviction based on nonpayment of rent.
The City of San Jose has provided a Notification Form for Affected Tenants to use. This form is not mandatory and Affected Tenants may prepare their own notice.
In such notification, the Affected Tenant must provide documented proof of their loss or decrease of income, which includes but is not limited to:
- Termination letter/reduced hours letter from the employer citing Covid-19;
- Paycheck stubs from before/after the Covid-19 outbreak;
- Bank statements from before/after the Covid-19 outbreak; or
- Other objectively verifiable proof of the same.
Though Affected Tenants will not have to pay rent during the SJ-Moratorium period, they remain liable for the unpaid rent once the SJ-Moratorium period expires on April 17, 2020. The SJ-Moratorium is a delayed payment of rent, not a waiver of rent.
The SJ-Moratorium states that Affected Tenants will have to pay the back rent owed after its expiration; however, the SCC-Moratorium states that Affected Tenants have 120 days from the expiration of the SCC-Moratorium to pay the back rent owed. Since the SJ-Moratorium is less protective of Affected Tenants, the SCC-Moratorium prevails.
Additionally, the SCC-Moratorium states that a landlord cannot collect late fees or other costs associated with nonpayment of rent; however, landlords may collect such fees if the Affected Tenant has not paid the back rent within 120 days after the expiration of the SCC-Moratorium.
Tenants who have not been impacted by Covid-19 shall pay rent on time in accordance with their lease.
County of Santa Clara Court Closures:
On March 13, 2020, Presiding Judge Deborah A. Ryan issued an Emergency Order for the health and safety of the citizens within Santa Clara County. This Order has frozen all current Unlawful Detainer Matters until April 5, 2020.
On March 27, 2020, the Santa Clara County Court issued another Order in which all evictions are prohibited until May 31, 2020. Meaning, all current hearings on Unlawful Detainer matters and any evictions that were to take place by the Sheriff’s Department are postponed, and landlords are unable to file an Unlawful Detainer Complaint until June 1, 2020, unless the Order is extended, and their right to do so is not waived.
Changing Landscape:
The SJ-Moratorium is based upon the current landscape of Covid-19 and depending on its spread and other measures taken by Federal, State, and Local Governments, the Moratorium may be extended to a further date, altered, or expired by April 17, 2020.
Landlords and tenants should check with their attorney and/or the City’s website in order to ensure that no changes to the SJ-Moratorium have occurred since the posting of this article.
Brewer Offord & Pedersen LLP will continue to monitor the City’s response and will provide updates when appropriate.