A hard look at Alameda County's new package of tenant protections
Alameda County updates emergency ordinance and expands tenant protections amid COVID-19
Tuesday the 21st was an eventful day in the East Bay legal terrain. In our last update, we applauded a temporary reprieve for rental property owners after the City of Oakland postponed making wide-ranging changes to its Tenant Protection Ordinance, Just Cause for Eviction Ordinance, and Rent Ordinance under the guise of an emergency COVID-19 response.
But then came Act Two: The Alameda County Board of Supervisors got together to revisit its March 24 temporary moratorium on evictions. This band-aid measure was broadened to include several notable provisions. You can view the unabridged ordinance here, but we'll give you the Reader's Digest version.
Most tenants can stay in occupancy
Landlords in Alameda County are now prohibited from evicting tenants except in rare circumstances. One exception is when the tenant poses an imminent health or safety risk; however, infection or heightened risk of infection with COVID-19 does not fall into this category. We are talking about egregious cases like drug-dealing, violence, and the like; it’s a high bar.
Normally, we can proceed with an unlawful detainer on the theory of a nuisance or other violations of lease terms, but the run-of-the-mill reasons to evict in normal times will go unheard and un-litigated during this state of emergency. Essentially, Alameda County has not only put the brakes on most no-fault evictions and has frozen evictions related to non-payment of rent, but has put a halt to most other just-cause evictions as well.
The County carves out another exigent circumstance when the building is “red-tagged,” and the residential unit must be vacated to comply with an order issued by a government agency or court.
Alameda County’s ordinance gives some leeway to owners looking to get out of the business of playing landlord. For anyone who wants to permanently remove units from the rental market, an Ellis Act eviction is still a viable option under the County’s rules, but of course, this comes with a host of other statutory obligations.
Tenants enjoy wide latitude in repaying past due rent
Tenants countywide have no less than 12 months to repay back any rent that was missed as a result of COVID-19 related hardships, but what if the tenant doesn’t fulfill his/her obligation? If back rent goes unpaid, the landlord cannot evict on this ground, even after the 12-month window allowed to make good on the deferred payments has passed. The only recourse would be to file suit in small claims court, enter into a payment plan, or garnish wages. Since back rent becomes a consumer debt, owners and operators will find themselves tasked with chasing money as a debt collector.
It's worth noting Governor Newsom has banned levying an individual's COVID-19 government emergency payments to satisfy any unpaid debt.
Responsibility to report and document
When a tenant suffers a substantial loss in income, substantial out-of-pocket medical expenses or extraordinary child care needs, resulting in a substantial hardship or inability to make a timely rent payment, the tenant is required to give the landlord the heads up, but not much notice is needed, only that the tenant relays the hardship on or before the rent due date.
Tenants are required to provide documentation - the tenant has 45 days after the request of the owner or within 30 days after the County’s shelter in place order is lifted, whichever is later.
There are additional notice requirements when serving a Notice of Termination
This verbiage must be included in the notice:
“NOTICE: THE COUNTY OF ALAMEDA HAS ADOPTED A TEMPORARY MORATORIUM ON EVICTIONS DURING THE COVID-19 LOCAL HEALTH EMERGENCY INCLUDING EVICTIONS FOR NONPAYMENT OF RENT OR MORTGAGE PAYMENTS DUE TO COVID-19. A COPY OF THE COUNTY ORDINANCE IS ATTACHED. UPDATED INFORMATION MAY BE AVAILABLE FROM THE COUNTY’S HOUSING AND COMMUNITY DEVELOPMENT DEPARTMENT AT email@example.com or 510- 670-6474.
Additionally, a copy of the county ordinance must be attached, along with a copy of the local ordinance if, in fact, the unit is situated within the jurisdictional limits of a city that also has an ordinance that protects residents from COVID-19-related evictions.
The ordinance has considerable teeth
If an owner violates the ordinance, it is not only an affirmative defense to eviction - it is a misdemeanor. As for civil penalties, an owner could be on the hook for up to $1,000 per day for the duration of the violation and be held liable for damages, costs, and attorneys’ fees. Ignorance of the law is not an excuse - no proof of knowledge, intent, or other mental state is required to prove a violation.
The County has banned landlords from imposing any late fees, fines, or interest for unpaid rent that has become due during the public health crisis. Suspicious that some tenants may be approached by their landlords with incentives to sign away their rights, the County made it clear that tenants are not allowed to waive rights granted by the ordinance. In terms of coexistence with a patchwork of ordinances enacted by municipalities within the County, a city falling within the County of Alameda may “opt-out” and apply its own ordinance in lieu of the County ordinance if that city’s ordinance “substantially protects Tenants from evictions during the COVID-19 emergency.” Finally, while May 31 is the important date on which the current state of emergency expires, it is not cast in stone, as the public emergency may be extended if circumstances warrant.
There are several other nuances in Alameda County’s ordinance, but we hope we have provided a 360-degree view here and invite you to contact us for informed advice in navigating the labyrinth of rules during this crisis.