Navigating the Maze of Eviction Regulations

As both tenants and landlords struggle to untangle state and local laws — the vulnerable remain at risk.

In an emergency, it is customary for elected officials dressed in government-branded polo shirts and windbreakers to talk about coordinating local, state, and federal response efforts. Unfortunately — though perhaps expectedly — we’ve had no bull-horn-atop-the-rubble moment from our current commander in chief during the slow motion emergency brought on by COVID-19.

In San Francisco, local leaders have acted more decisively to counteract one of the pandemic’s most pressing sub-emergencies: displacement of tenants no longer able to pay rent.

However, while the city was initially heralded for its proactive prohibition of pandemic-related evictions, many of the protections put in place during the spring have been recently complicated by laws coming down from the state and federal governments.

Now, tenant advocates, landlords, and local politicians are wading through the details; trying to plug loopholes or exploit them. And while the news cycle moves on, and San Francisco’s tech economy kicks back into gear, many low-income tenants are still out of work and vulnerable to eviction. 

A Twisty Timeline

It feels like a lifetime ago, but during the first couple months of shelter-in-place, much ink was spilled about how San Francisco’s successful pandemic response was informed by the city’s experience with the AIDs crisis. A similar claim could be made about eviction and displacement, another familiar threat for city leaders, and one which they successfully fended off — at least for a time.

“Effectively, the machinery of eviction was shut down in San Francisco for all but a narrow category of cases where there was some kind of immediate threat of physical harm,” says Supervisor Dean Preston, who spearheaded many of the city’s anti-eviction efforts. 

Starting this month, some of that machinery began creaking back to life. But the path from there to here has been a winding one. 

Back on March 13, days before shelter-in-place was officially declared, Mayor London Breed instituted an emergency eviction moratorium that prevented tenants from being evicted for non-payment of rent due to the pandemic. The order needed to be extended every month, but reliably was. Also in those early days, Sheriff Paul Miyamoto agreed to a moratorium on “writs of possession,” which is when sheriffs come to forcibly remove a tenant who is being evicted. 

Then in April, Supervisor Preston introduced and passed a law that permanently bans evictions based on non-payment of rent from March 15 through September 30. (Breed’s emergency moratorium only banned evictions during the emergency period, not indefinitely.) Under Preston’s ordinance, landlords could still demand repayment of missed rent as civil debt, but could not evict residents for non-payment. 

That law prompted a legal challenge from the San Francisco Apartment Association, the Small Property Owners of San Francisco Institute, and other landlord groups, which was rejected by a judge in August. An appeal of that decision was withdrawn on Thursday.

At yet another level of government, the California Judicial Council in April adopted their own emergency moratorium on most eviction proceedings in California courts, partly due to pressure from San Francisco elected officials.  

The Judicial Council authorized its moratorium hesitantly, emphasizing that rules governing evictions need to come from the state legislature. That’s where a bill from one of San Francisco’s assembly members, David Chiu, came in. AB 1496 would have allowed tenants adversely affected by the pandemic to forego payments until April 2021. Following a 15 month grace period, renters would be responsible for paying rent, but could not be evicted for non-payment. 

The bill faced a challenging path in Sacramento, where landlords are a powerful interest group. After Chiu’s bill failed to gain traction, Governor Gavin Newsom brokered a compromise bill at the last minute before the tumultuous end of the 2020 legislative session.

The resulting law, AB 3088, comes with weaker tenant protections than what Chiu had proposed. It requires renters across the state to pay 25 percent of their rent through February 2021, with the remainder converted to civil debt that will need to be paid back (but, once again, cannot result in an eviction). The law also requires renters taking advantage of these protections to file a declaration of financial hardship, and, most significantly for San Francisco, supersedes city-level eviction moratoria.

As if all that weren’t complicated enough, just days after AB 3088 passed, the Trump administration, taking just about everyone by surprise, announced a nationwide eviction moratorium through the CDC, covering all renters who can prove they will be at risk of homelessness or living in overcrowded housing through January. 

Jumping Through Hoops 

All of these different regulations have made for a lot of confusion, and have left different stakeholders upset for different reasons. 

Tenant advocates weren’t happy with Newsom’s compromise bill. “It punishes the municipalities that were most proactive, including San Francisco,” says Shanti Singh, communications director of Tenants Together. Signh also criticized the Feb. 1 expiration date and the requirement for affected tenants to file a declaration in order to be eligible for the protections. 

“One of the reasons that the landlords were OK with the state law, is that they knew that the tenants have to jump through some hoops to use it,” Preston, who founded Tenants Together, says. “We know that whenever you set up those kinds of procedural hurdles, the most vulnerable tenants are the least likely to meet those deadlines.”

Landlords, while happier with Newsom’s compromise bill than San Francisco’s previous rules, are still concerned that many tenants who invoke their rights under AB 3088 will never pay their back rent. “In my opinion the chances of collecting lost rent are zero for small property owners,” says Noni Richen, president of the Small Property Owners of San Francisco Institute, adding that collecting payment could require hiring investigators and lawyers, if the tenant has departed before paying. 

Some landlords who have received little or no rent during the pandemic are now struggling to pay their mortgages — an issue which state leaders have punted to the feds. (The San Francisco Apartment Association declined to comment, stating that it is still determining how state and local laws will interact.)

Richen says that evicting tenants during the pandemic is something “our small owners are just not doing,” and that the only eviction she knows of among her 1,100 members was of a tenant who was being violent. With lots of people “going home to mom” or “going to Henderson, Nevada for a job working remotely,” landlords have little economic incentive to evict stable tenants, Richen says. 

But as Singh points out, plenty of landlords could make a lot more money by removing their long-term, rent-control tenants, even in the current, slack market — which is why tenant activists don’t like to rely on the good faith of landlords.

Since AB 3088 is “full of loopholes,” Singh says, “other types of eviction, like no fault, especially, will definitely be used as a pretext for landlords who want to get tenants out, even if the tenant is technically non evictable under AB 3088.”

Plugging Holes

Supervisor Preston is trying to limit those pretexts as much as possible. While there’s nothing he or other lawmakers can do about non-payment of rent, which is covered under AB 3088, or Ellis Act evictions, a thorn in the side of tenant advocates for decades, Preston believes the city does have the power to stop “no-fault evictions” during the health emergency. Preston will be introducing legislation to that end at the Board of Supervisors on Oct. 5, which, if passed, would last until March 2021. 

No-fault evictions comprise several categories, including some types of owner move-ins, evictions for renovations, and condo conversions. They represented about 20 percent of evictions last year. 

While Preston’s proposal would help some tenants — and very likely, further rankle landlords — Singh says the safest course of action for tenants who can’t pay their rent is to follow AB 3088, and submit a declaration of hardship to their landlord. Beyond that, the federal eviction moratorium serves as a “baseline” that tenants can turn to if they fall into “one of the many cracks” of state law. 

“We’re in shelter-in-place. People are supposed to be limiting their outings and staying in their home,” Preston says. “It just makes no sense within that to be displacing people who then end up in overcrowded living situations or end up on the street.”

This story was updated to include the news of landlord groups dropping their appeal of the city’s pandemic-related eviction moratorium.

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