Nonpayment of rent filings resume with new guidance from the Judicial Council
Under the COVID-19 Tenant Relief Act of 2020 (CTRA), nonpayment of rent cases were put on hold for one month to afford the courts enough time to get acclimated to the new law and figure out exactly how to implement it. The California Judicial Council was given until October 5 to digest CTRA and devise rules for cases against tenants who have not asserted a hardship related to the pandemic. We now have a clear map to follow after this body provided its tutelage.
It’s important to compartmentalize whether the theory for eviction is nonpayment of rent or whether the tenant is causing problems at the property.
As of September 2, the courts have had the clearance to hear nuisance cases, but except for the most egregious instances of tenant conduct, these cases have been delayed. Someone playing loud music at night might not be serious enough to be bumped to the front of the line. When we are talking about arson, violence, threats of violence, narcotics dealing, and so forth, those types of cases will be prioritized.
There is one big asterisk for landlords and property managers in localities that do not have a more expansive list of just causes than state law - lawmakers under the dome of the Capitol extended “just cause” protections throughout the state. The just cause reasons to evict can be found in Assembly Bill 1482, a law we discussed in-depth here.
In order for the court to easily determine the underliers of a case, the policy-making body of the California courts have approved a new court form entitled the Plaintiff’s Mandatory Cover Sheet and Supplemental Allegations - Unlawful Detainer (UD-101).
This required form gives the court the necessary information to answer two fundamental questions; 1) Does the case involve residential property or commercial property that is not covered by CTRA?; and 2) Is the case based on nonpayment of rent, or another theory for eviction? This supplemental cover sheet also enables the clerk to issue a summons and/or enter default in cases, as allowed by law, before October 5, 2020, for those cases that do not seek payment of rent or other charges.
The Judicial Council also instituted forms for tenants and their attorneys to use.
Although the legislation allows a tenant 15 days to declare a COVID-19 related hardship when his or her landlord seeks to evict for unpaid rent or other charges, the law also recognizes that there may be a good reason why the declaration was not returned to the landlord in a timely fashion. Hence, the Cover Sheet for Declaration of Covid-19–Related Financial Distress (UD-104) and Attachment—Declaration of Covid-19–Related Financial Distress (UD-104(A)).
This form allows the tenant to raise a defense created by CTRA, essentially giving the tenant the opportunity to prove that there was a good cause for letting the deadline expire with no action.
This may be disturbing for landlords who themselves are given no breaks when it comes to unforgiving deadlines.
In an earlier webinar on the nascent law, Daniel Bornstein said that a tenant’s ability to rest on their laurels and fail to comply with the statutory requirements of submitting a declaration of hardship within the 15-day time period is troubling. What is the purpose of the requirement if the tenant can evade it later on in court?
In earlier venues, Bornstein Law has said that most of our effort during the pandemic has been used to commiserate and strategize with clients, but we have been largely shut out of the courts. It has been with some frustration that the traditional tools we have used over the 25+ years of our practice have been unavailable until now.
The Judicial Council’s guidance has returned our court system to a semi-state of normalcy, and for that we are encouraged. By no means will this be an easy transition, but Bornstein Law is committed to accompanying you on this bumpy ride.