The new legislation passed by the San Francisco Board of Supervisors to ban evictions for nonpayment of rent may be risky for tenants.  Although the Board of Supervisors had good intentions, tenants who rely on this law to not pay rent may end up evicted.  Landlord lawyers are already drafting a lawsuit against the City of San Francisco to overturn the law.  Similar laws in other cities are being challenged in the courts.  The landlord lawyers are confident they will prevail.  As the lawsuit against the City of San Francisco makes its way through the courts, tenants who rely on the new eviction ban to not pay rent will likely receive three-day notices to pay rent or quit.  If the tenants do not cure the eviction notices within the three days, the tenants will be vulnerable once the eviction ban is overturned by the courts. 

Our office spoke to the landlord lawyers who plan to file suit to overturn the new law banning nonpayment evictions in San Francisco.  The lawyers will be arguing (1) that the City of San Francisco did not have the authority to preempt state laws that allow landlords to evict tenants who do not pay rent; (2) that allowing tenants to stay in units and not pay rent is an unconstitutional taking of property; and (3) that a local authority does not have a legitimate government interest in passing emergency laws to allow tenants to remain in units rent free.  The lawyers filing the suit are confident they will prevail.  There is a chance they will. 

If they do prevail, tenants who did not pay rent because of the law will be vulnerable to eviction.  It will be up to one judge in San Francisco Superior Court to decide whether the eviction lawsuits for nonpayment can go forward.  This is a risk that some tenants should not be taking, especially tenants who wish to remain in their rent-controlled units.

The good news is that the California legislature is working on a bill that will prevent evictions for nonpayment related to COVID-19 across the state.  Since the state is passing the law, as opposed to a local jurisdiction, it will be far less likely to be struck down by a court challenge.  Once passed, the new state law will not allow landlords to evict tenants who could not pay rent during the pandemic.  The current version of the law states that landlords cannot evict for nonpayment from March 2020 to ninety days after the Governor lifts the state of emergency.  Nor will a landlord be able to charge late fees for nonpayment during COVID-19.  A landlord will be able to file a civil action against the tenant for the back rent, but the landlord will not be entitled to recover any other damages for the nonpayment and will not be able to recover attorney fees.    

For tenants in dire situations, who face the choice now between homeless during the pandemic and not paying rent, there are already existing state laws that forestall nonpayment evictions during the pandemic but do not prevent them altogether.  Tenants who do not pay rent can rely on these existing laws to stay in their units for at least ninety days after the Governor lifts the state of emergency, but the tenants do eventually have to vacate to avoid an eviction lawsuit and eviction record.  An eviction action does not go on a tenant’s credit provided the tenant vacates before a court judgment or trial.  A landlord can still pursue the tenant in a civil action for the back rent, and if the lease contains an attorney fee provision, the landlord could get attorney fees against the tenant on top of the rent owed.  A tenant using this strategy needs to manage the process carefully.  The court and the landlord are supposed to dismiss an eviction action as soon as possession is no longer at issue.  The tenant needs to be proactive with the landlord, the landlord’s lawyer, and the court to make sure the eviction action is dismissed or converted to a regular civil action.  A tenant wishing to employ this strategy should review our article on how to stay in a unit during the pandemic without paying rent.    

The bottom line though is that the new San Francisco eviction ban does not come without risks.  If the local ban is overturned, tenants will be facing eviction actions.  This will be especially tragic for tenants in long-term, rent-controlled units who thought this new San Francisco law would protect them. 

For more information, please contact our tenant lawyers at 415-504-2165.  We are here to help all California tenants manage this crisis.  The laws are complicated and confusing.