In San Francisco, non-paying tenants are afforded another last-ditch effort to avoid eviction

Under a newly minted ordinance, tenants can use a COVID-related hardship as a defense to an unlawful detainer (eviction) action. 

March 18, 2022



By now, we should be aware that there are statewide tenant protections under AB 832, which addresses a mountain of unpaid rent debt that has accrued.

Yet some locales are marching to the beat of their own drum and are hellbent on keeping protections longer. 


On the eve of eviction moratoriums expiring, the San Francisco Board of Supervisors took matters into its own hands and gave some flicker of hope to tenants who fail to pay rent on or after April 1, 2022.

Renters in San Francisco can still stave off eviction at the 11th hour by claiming that the inability to pay rent is owed to a COVID-related hardship. Read the ordinance here ›

This is because the state law gives some latitude to local governments to "extend, expand, renew, reenact, or amend" existing ordinances that spell out just cause reasons to evict.

San Francisco's moratorium on evictions for non-payment of rent is tethered to the city's local state of emergency. Ditto for Alameda County, where the eviction ban is now embroiled in litigation, with good reason.

When we look back to the outset of the pandemic, eviction moratoriums made sense because the priority was to keep people housed amid rampant unemployment, stay-at-home orders, schools being closed down, and just about every orbit of life ground to a halt.


Fast forward to today. 

The conditions are a far cry from yesteryears, and San Francisco says so much in its ordinance by stating the economy has rebounded. And it is a bit ironic. While the stated reason for instituting a ban on evictions was stay-at-home orders and a wiped-out economy, San Francisco's ordinance now says that protections should remain in place so that people should roam freely to search for employment in a robust economy. 


Given an inch, still taking a mile?

As the pandemic wanes and becomes the endemic and as we return to a sense of normalcy, eviction moratoriums make less sense. 

Yet militant tenant advocates continue to rewrite the law on the local level, grappling on to whatever power they have left to perpetuate eviction moratoriums and elongate the misery of landlords. San Francisco politicians are clinging on by their fingernails to avail any ability left by the state to retain control of tenant protections.

The cause is losing traction. 


COVID-related hardship now a defense to an eviction action

What we have under state law is dual responsibilities of the landlord and the tenant to deal with COVID-related rent debt.

On one hand, the landlord must inform tenants of their rights and the opportunity to seek rental assistance programs. On the other hand, the tenant has to take the initiative to declare a COVID-related hardship and engage in the application process to secure governmental funds.

Then, a state or local rental assistance program is supposed to disperse funds for landlords to recoup rent debt and tenants to avoid displacement. This was a lofty set of goals and a lot of parts had to come together. It turns out that this machinery hasn't always functioned so well.  

Some landlords have been made whole and others have been left in the lurch. 


We've been talking in the past tense, but San Francisco has carved out its own path beginning April 1st.

There are a whole host of defenses that tenants or their attorneys can use in an eviction action and, in San Francisco, you can now add another one - a COVID-related hardship.

Mind you, there were some obligations that tenants had to comply with under state law to avoid eviction, such as filling out a declaration of hardship. Beginning April 1, there are no formal protocols for tenants to follow. 


Good and bad news to this newfound defense of a COVID-related hardship

Under state edicts to date, the tenant merely had to state they suffered a financial impact because of COVID, and this assertion could not be put to the test. Landlords who suspected that the tenant was well-to-do could ask for documentation that proved a hardship, but for the most part, the tenant could just make a blanket, unchallenged statement that they fell on tough times.

The silver lining with San Francisco's ordinance is that there is a burden of proof shifted to the tenant to actually document a substantial hardship. Their word alone will not suffice.

This should be encouraging to those landlords who have affluent tenants refusing to pay rent, and we've heard the horror stories.

It goes something like this: the tenant is gainfully employed, goes to work each morning, and sometimes returns home with a new car. Yet rent goes unpaid because of a moratorium. Those days are over - we are no longer on the honor system.

So, what we would be looking for is real proof and documentation that substantiates a significant COVID-related hardship.


Just how much teeth does the new ordinance have?

After suggesting some examples of documentation that tenants can provide to substantiate that COVID has put a dent in their wallet, the ordinance goes on to say that this requirement "shall be liberally construed to effectuate its purpose, which is to protect tenants from being evicted for missing rent payments due to the COVID-19 pandemic."

This statement would seem to indicate that it's a low bar in terms of the documentation required to prove a hardship, but it will have to be sorted out in the courts. Clearly, the intent of the Supervisors is to avoid displacement, but exactly how this will play out and how convincing the purported hardship is will be left up to a judge or jury.


A sympathetic jury?

We said in an earlier venue that it is preferable to get in front of a judge instead of a jury. For one, the cost is ratcheted up in a jury trial because there is more attorney involvement and they usually take more time.

Secondly, though, eviction is just as much a political issue as it is a legal one, and so in this polarized climate, we would fully expect some jurors to have a strong sense of empathy for tenants who are at risk of displacement.

The riddle to solve is whether there is a genuine hardship, or if the tenant is "gaming the system." We trust that with proper counsel and advocacy, reason will prevail in court.

Everyone has suffered a consequence of COVID, even if it is a tangential or downstream one. But in our estimation, the onus will be on tenants to prove that there is some clear-cut or shocking instance of hardship that absolves them of the responsibility to pay rent. 


Parting thoughts

The landlording community has been through a lot together during the pandemic, but we are emerging on the other side. Gone are the days when we see banners to cancel the rent.

As we all get back to life as usual, the sentiment that tenants should be given extra protections because of a dwindling crisis is subsiding.

The logic of using COVID to justify the non-payment of rent is collapsing. Whether through litigation or through sober politicians, we feel that we are nearing the day when we revert back to how we traditionally manage landlord-tenant relationships.

Make no mistake - this is tricky stuff, but Bornstein Law is here to help you power through these quandaries and challenges.