Alameda attorney’s office: Tenants, know your post-pandemic rights

In late May and early June, California and its cities are grappling with the phased reopening of businesses. The relaxation of stay-at-home orders reminds us that the COVID-19 pandemic will eventually end.

Though California and the city of Alameda are still in a declared state of emergency, there will be a time when those emergency declarations are rescinded. When that happens, Alameda renters may ask themselves, “Once the pandemic is over, how will my housing be affected if I lost my job because of the pandemic and haven’t paid rent since March?” To help answer that question, it can be helpful to understand the executive orders and local laws that have been issued in response to the pandemic.

During the pandemic, California Gov. Gavin Newsom’s Executive Order N-37-20 provides a moratorium on eviction proceedings. Notably, the executive order does not relieve tenants of their obligation to pay rent; it suspends a landlord’s ability to evict a tenant for nonpayment of rent during the COVID-19 pandemic. In addition, the California Judicial Council issued emergency rules concerning eviction proceedings.

Under the rules, for 90 days after the governor declares the state of emergency related to the COVID-19 pandemic is over, a court will not process the paperwork necessary to begin eviction proceedings unless the action is necessary to protect public health and safety. Taken together, this means that during the state of emergency caused by the COVID-19 virus and for 90 days thereafter courts will not process landlords’ paperwork to evict tenants unless the action is necessary to protect public health and safety. Once the state of emergency is lifted and 90 days have passed, courts will likely resume processing eviction proceedings.

Urgency ordinances adopted by the Alameda City Council, most recently on April 21 (Ordinance 3275), provide tenants with a legal defense against eviction proceedings if their inability to pay rent is due to a substantial loss of income arising from the COVID-19 pandemic. The urgency ordinance also provides a tenant with 210 days (about seven months) to repay any rent that was not paid during the city’s declared local emergency plus 30 days thereafter. The urgency ordinance does not make it illegal for a landlord to begin eviction proceedings, but it creates an affirmative defense for residential and commercial tenants in eviction proceedings. This defense lasts for 210 days after Alameda’s local state of emergency is lifted.

Important timeline: In the “new normal,” let’s assume California and Alameda’s emergency declaration are lifted. After 90 days, courts will likely resume processing unlawful-detainer (eviction) actions. In those unlawful-detainer actions, tenants have the opportunity to defend themselves from being evicted. This is where Alameda’s urgency ordinance comes in — if the eviction is based on not paying rent, Urgency Ordinance 3275 provides tenants the legal grounds to defeat a landlord’s unlawful-detainer action by showing they suffered a “substantial loss of income” due to the COVID-19 pandemic, including a tenant’s needing to be off work because the tenant was ill or caring for someone who was ill from the COVID-19 virus.

Even after the local state-of-emergency declaration is rescinded, tenants can still use this defense for 210 days after the state of emergency has ended. Currently, however, if the rent that was not paid between March 1 and 30 days after the City Council rescinds the emergency declaration and is not repaid within 210 days after the local emergency has been rescinded, the landlord could pursue eviction proceedings, and the defense would no longer be available to the tenant.

The Prosecution Unit of the Alameda City Attorney’s Office represents the people of the State of California in misdemeanor criminal matters referred by law enforcement agencies, such as the Alameda Police Department or Code Enforcement Division. City prosecutors are further assigned to bring affirmative litigation, in coordination with the Alameda County District Attorney’s Office, in response to violations of consumer protection and fair housing laws and are also assigned to protect consumers against fraud and unfair business practices.

If you have additional questions, contact the office’s Prosecution Unit at 510-747-4772, or email Wes Cheung is a deputy city prosecutor in the Alameda City Attorney’s office, and Kristina Swafford is a paralegal in the office’s Prosecution Unit.

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Author: Wes Cheung, Kristina Swafford