Governor Gavin Newsom just passed an order that effectively creates an eviction freeze for residential tenants in California who are unable to pay rent as a result of changed finances due to the COVID-19 pandemic.  This has taken the form of Executive Order N-37-20, which will remain in effect through May 31, 2020.

The Order raises a number of questions however, including when the Order applies, how it affects evictions, and whether it overrides local measures currently in effect.

When does the Order apply?

In order to qualify for the protections granted by the Order, the tenancy must first be residential, and the tenant must satisfy all three of the following conditions:

1. The tenant must have paid all rent owed prior to March 27, 2020;
2. The tenant must notify the landlord in writing starting from any point before rent is due and ending 7 days after rent is past due.  For example, for rent due on April 1, a tenant would be required to notify the landlord by April 8^th at the very latest. The notification must state that the tenant needs to delay all or some payment of rent due to any of the following:
   • The tenant suffers from a suspected or confirmed case of COVID-19;
   • The tenant is caring for a household or family member with a suspected or confirmed case of COVID-19;
   • The tenant is experiencing a lay-off, loss of hours, or other income reduction resulting from COVID-19, the state of emergency, or a related government response; or
   • The tenant is missing work while caring for children affected by COVID-19 school closures.
3. The tenant must be able to document the reason for the tenant's changed financial circumstances asserting an inability to pay.

If all the conditions are satisfied, the tenant cannot then be evicted under the Order.

How does the Order affect the eviction process?

The most essential way that the Order affects the eviction process is by providing qualifying tenants an additional 60 days to respond to a complaint for eviction.  Effectively, this gives a tenant five court days (the current deadline) plus an additional 60 days, for a total of 65 days to respond. In other words, this order provides tenants an additional two months (60 days) to potentially work out an agreement with their landlord. In addition, the Order explicitly forbids the enforcement of a writ to evict a qualifying tenant for nonpayment of rent.  Importantly, this order does not relieve tenants from their obligation to pay rent, or relieve the tenant from liability for unpaid rent, such as interest or late fees that may be stated within the lease.  Regardless, other reasons may exist to not charge late fees, such as goodwill between the landlord and tenant, the reputation of the landlord, etc.

Does the Order override local measures?

The answer is no.  This statewide moratorium on residential evictions does not override measures that may be more severe than those set forward by local governments.  For example, late fees for a failure to pay rent during the COVID-19 pandemic are currently prohibited by the cities of Los Angeles, Palo Alto, Oakland, and other municipalities, while the Order remains silent about late fees. Therefore, landlords should double check with local ordinances, orders and updates and consult with professionals, such as attorneys, to make sure they know the restrictions applicable in their area.

For further inquiries or questions, you can consult with a Task Force attorney by emailing NDCovid19Response@ndlf.com or contact our office directly at 949-854-7000.