Can’t Afford Rent? A legal guide to free rent during the pandemic. | Tobener Ravenscroft LLP

Can’t Afford Rent? A legal guide to free rent during the pandemic.

If you’re in the 30% of Americans who cannot pay rent because of the pandemic, this guide provides a step-by-step guide to stay housed.  Because the courts will be unable to process evictions until September 2020 at the earliest, there is simply no way for a landlord to evict a tenant who is not paying rent.  Tenants have a right to a jury trial in eviction cases.  Jury trials will likely be suspended until there is a vaccine, herd immunity, or ubiquitous testing.  It is very likely a tenant could stay in their unit and not pay rent well into 2021.  Not paying rent is an extreme move and not without risks, but the threat of not paying rent gives tenants considerable leverage in negotiating reductions in rent, rent forgiveness, and rent deferments.    

Rent Deferment Agreements

Landlords are now willing to enter into Deferment Agreements, also known as Forbearance Agreements, which temporarily freeze or reduce rent for a period of time with the promise that the tenant will make up the rent at a later date.  Rent Deferment plans are for tenants who cannot pay rent now but expect to be able to pay rent soon and want to stay in their unit well after the pandemic.  Your leverage to negotiate a good deferment package is in the current court closures.  Without courts actively processing evictions until perhaps early 2021, a landlord cannot evict for nonpayment.  Also, with the rise in unemployment and no tenants looking for units during the lockdown, landlords are fearing that they may not be able to replace tenants in the near term.      

A good Deferment Agreement will include the following:  a temporary reduction in rent, a statement that the landlord will not evict the tenant for nonpayment or late payment, and a payment plan for at least one year.  Avoid clauses that waive your rights, release claims, or allow for landlords to get immediate possession in the event of nonpayment.  Ask for a clause that states that if circumstances change again, the landlord will negotiate in good faith.  Do not sign anything that requires you to pay during the state of emergency or requires you to hand over money you may receive from coronavirus-related benefit programs.   

Rent Forgiveness Agreements

Because the courts are closed and landlords have no way to evict or collect rent at least until September 2020 and likely until 2021, landlords are agreeing to waive rent altogether, known as a Rent Forgiveness Agreement.  This is different than a deferment.  A deferment requires you to pay the rent back.  Under a Rent Forgiveness Agreement, you do not have to pay the rent back at all.  When negotiating for rent forgiveness, ask for a clause that states you cannot be evicted for nonpayment of rent.  Avoid clauses that waive your rights, release claims, or allow for you to be summarily evicted in the event of a breach.        

Refusing to Pay Rent Altogether and Staying Housed

If you are unable to pay rent because of the pandemic, and your landlord is refusing to help, you can continue living in your rental unit for the next six to twelve months without facing an eviction order, but you will eventually have to move out.  The Judicial Council of California has stated that evictions cannot go forward until at least ninety days after Governor Newsom’s state of emergency declaration is lifted.  Even once the courts have reopened, there will be a huge backlog of cases.  Tenants are entitled to jury trials in eviction cases as a matter of law.  Jury trials require jurors to assemble in jury rooms and sit right next to other jurors during trial.  It is not likely that jury trials will go forward until there is ubiquitous testing, herd immunity, or a vaccine.  According to the CDC, this will not likely occur until at least 2021. 

Not paying your rent is not without risks and you will eventually have to vacate.  If you want to stay in your unit after the pandemic has passed, this is not the right avenue for you.  

On April 6, 2020, the California court system adopted emergency orders prohibiting any state court from issuing a summons on an eviction case.  Without a summons, no landlord can serve you with an eviction lawsuit.  This rule is in effect until ninety days after the state of emergency is lifted.  What this means for tenants is that even if a landlord can legally evict you for nonpayment of rent, they cannot practically get an eviction lawsuit started until September 2020 at the earliest (assuming the State of Emergency ends in May 2020).  There are some exceptions to this rule – for example, any eviction that is necessary to protect public health and safety will be allowed to be processed in court sooner.  But, if you are a good tenant and simply cannot pay your rent, you cannot be served with an eviction lawsuit until around September 2020.  It should be noted, however, that even if your landlord cannot get an eviction lawsuit started against you for some time, they could report you to a credit or collections agency. 

Once the courts open back up, and eviction lawsuits are allowed to proceed, you still will not likely see any movement on your eviction case for several months.  Because of constitutional protections, courts must prioritize criminal cases before civil cases.  Eviction lawsuits are civil cases.  You should monitor the system closely for deadlines to respond, but know that the courts will likely take a month or so longer than they typically would to issue a summons or other orders. 

Once you are served with the eviction lawsuit, also known as an unlawful detainer, you only have five days to respond.  You will need to timely respond and also make sure to request a jury trial.  You have a statutory right to a jury trial.  If you request a jury trial, your eviction trial cannot go forward until you have a full jury empaneled and ready to hear your case.  It is anticipated that the courts will have trouble filling the required number of jurors to hear all trials.  People will likely still be fearful of gathering in large groups and being stuck in a confined space with others, if allowed to gather at all.  If there are not enough jurors to hear a case, the case is delayed even further.

Eviction Records are Not Public Unless You Lose the Case

Eviction records in California are sealed and not available for public viewing unless a tenant loses a case.  This means that even if an eviction is filed against you, it is not on your record unless you lose the case down the line.  So, as you are waiting for your trial date to be set, the eviction should not show up in any searches or be reported to any background check agencies.  Be aware though, that certain courts are better at others in abiding by the law requiring eviction lawsuits be sealed.  Some online court systems state “record not available for public viewing” when you search a tenant’s name online.  This tends to tip property managers or screening agencies off that there’s likely an eviction in the tenant’s past.  If you talk to the screening company about the eviction being related to COVID-19, it’s likely prospective landlords will be more understanding of a marked past.

Once your case is finally assigned a trial date, you can of course proceed through trial.  If the basis for your eviction is nonpayment of rent, though, you will likely lose.  This means you will have an eviction judgment on your record.  Once a judgment is entered, the sheriff will come and forcibly remove you from the property, if necessary. 

Instead of proceeding to trial, you could move out before there is a judgment against you.  That way, the eviction record will remain sealed and not on your record.  If a tenant moves out while an eviction lawsuit is still pending, the landlord cannot continue on with the lawsuit as an eviction.  Instead, they would have to convert the case into one for money damages only, since possession is no longer being sought.  So, you would still be involved in a lawsuit, and still owe the money, but you would not have an eviction judgment on your record.  There is some risk that the courts will not convert the lawsuit from an eviction to a money claim in time before your trial, so consider moving out several weeks before your eviction jury trial is set to take place.  Also, be sure to track your case carefully to make sure it is dismissed or converted to a civil case after you move out.  The lawsuit for back rent will proceed though, and you will likely end up with a large civil judgment against you.  That type of debt can be reported to credit agencies or referred to debt collectors.  You would also have to say “yes” if asked on any future rental application whether you were ever “involved” in an eviction.  If the question only asks if you were “evicted” and you moved out before an eviction judgment, you can likely honestly say “no”.

The guide we have put together here is not meant to replace legal advice from a tenant rights attorney on your particular case.   Each case is unique and the laws are complicated and always changing.  Any tenant who is considering staying and waiting for an eviction lawsuit to run its course should reach out to a tenant lawyer for advice on whether the general points outlined above make sense in your situation. 

If you want to stay long term in your unit, the above plan is likely not the best course of action for you.  If you want to stay long term, your best option is to negotiate a Deferment Agreement or a Rent Forgiveness Agreement.  Alternatively, if you are in a rent-controlled unit, you could explore the option of a buyout of your tenancy.  Please feel free to reach out to one of the tenant rights lawyers at Tobener Ravenscroft LLP.  You can call us anytime at 415-504-2165.

We’re here to help.
Call us to speak to a tenant lawyer.
Or message us now.

415.504.2165