Thinking smartly and strategically about landlord-tenant relationships and recovering COVID-related rent debt in the wake of new state law
You can hypothetical at attorney to death, but we have prepared a list of several foreseeable scenarios - some "what ifs," and a brief discussion of each. This is for informational purposes only and should only be used to give you a springboard of ideas when talking to an attorney.
All tenants who owe rent during COVID, irrespective of the time period
Accept partial payments, but document the rent debt and make it clear that back rent is deferred, not waived. Send the tenant a ledger of rent paid and missed rent that has accrued. Chronicle all communication with the tenant, including the date and summary of the conversation. Preserve all emails and written communication with the tenant.
Pay close attention to maintenance and repair requests, as this can come back to bite the landlord later on. Distinguish between “essential” and non-essential repairs if tenant requests are declined.
Conversely, if the tenant refuses to let the landlord or contractors into the premises to make repairs or do preventative maintenance after proper notice is served, document the landlord’s inability to gain access to the unit.
All tenants who owe rent COVID-related rent debt between March, 2020 through April 1, 2021
Educate them on the rental assistance program and attempt to broker a win-win opportunity whereby the landlord recoups 80% of the rent debt debt and 20% of rent debt is erased. Explain that this is a win-win opportunity.
Put the tenant on notice that certain income and household information will have to be gleaned during the soon-to-be determined application process. Now is the time to begin entering into a productive, collaborative discussion about the rental assistance program.
Tenants who have earned more than 80% of the area median income in 2020 or at the time of the application or otherwise do not qualify for the program
State will not pay 80% of back rent, but 25% of rent debt for the prescribed time period can be demanded from the tenant, with the remaining 75% sought in small claims court. Consider a tenant buyout agreement for a tenant who is chronically not paying rent.
If the tenant is unwilling to accept a buyout agreement or is evicted for nonpayment (speak with an attorney first), COVID-related debt can be recoverable in civil courts.
Tenants who are not paying rent and ALSO have underlying behavioral/nuisance issues
If a threat to public health or safety (arson, narcotics, violence, etc), eviction action should be commenced immediately. Less severe acts like unauthorized subletting or pets, excessive noise, and other lease breaches, consider first recouping 80% of the rent debt through statewide rental assistance before evaluating other options, including a tenant buyout agreement or eviction on the theory of nuisance.
Squatters and other unauthorized occupants in the unit
When a tenancy is never established, a forcible detainer action can be commenced. This is common when occupants break into the residence or there are adult children or other guests/licensees who overstay their welcome. The rental assistance program cannot be availed because there is no lease; instead, the goal is to remove the occupant. We discuss forcible detainers further in this blog.
Tenants who have abandoned the unit
During the pandemic, droves of tenants left the Bay Area and have left landlords in the lurch. If the landlord suspects the tenant has prematurely left the rental unit in violation of the lease, certain protocols must be followed, including a notice of belief and abandonment, a document that explains the tenants’ obligations if he or she would like to remain in the property. We delve deeper in this article.
Since we believe that in order to tap into rental assistance funds the tenant has to be in possession of the unit, the landlord is unfortunately out of luck.
Tenants who owe rent but refuse to talk with the landlord
Though few and far between, there are some tenants who seem to not respond to any communication with the landlord, perhaps out of embarrassment for the inability to pay rent, or avoidance of the landlord to conceal something in the rental unit. Unfortunately, the relationship can be so acrimonious, the tenant does not want to participate in the rental assistance program because he or she wants to deprive the landlord of any money.
In these toxic relationships, Bornstein Law can assist in bringing recalcitrant tenants to the table.