• Sasha Struthers

Updated: AB 3088 Briefer for Landlords in 2021

Updated: January 31, 2021

California's roller coaster keeps getting more twists as Gov. Newsom signs AB 3088 (law found here) giving a life support (in theory) to landlords and tenants. AB 3088 revised a penumbra of laws with different starting and ending points. The goal post keeps moving further and further away for an economic recovery in the state. The protections in AB 3088 have been extended through June 30, 2021- See Governor statement here. AB 3088 was extended through SB91 here.

Alas, here are the main provisions that came out of AB 3088/ SB91 that landlords should know.

There are some keys terms under AB 3088/ SB91:

  • "Protected Period" is March 1, 2020- August 31, 2020

  • "Transition Period" is September 1, 2020- June 30, 2021

  • "High Income Tenant" is a tenant a landlord reasonably believes based on the landlord's records that a tenant makes more than 130% of the median income for the county or no less than an annual household income of $100,000. The landlord will usually rely on the rental application for this. Any tenant at the time of applying or the landlord believes is not high income receives substantial protections from eviction.

There is a catch, a landlord cannot demand proof of income from a tenant to determine if the tenant is high income or not. Again, the rental application is usually going to be all the landlord has on file to determine the income.

Tenant Responsibilities

All defaulting tenants needs to submit a "Declaration of COVID-19-Related Financial Stress" to landlords testifying the tenant cannot pay rent because of a financial hardship that arose out of COVID 19. The declaration is pre-made in the statue and must be included with all notices landlords serve regarding failure to pay rent.

A tenant's failure to give the landlord the declaration before a notice to pay or quit expires may result in forfeiture of the tenant's protections under the statute.

Landlords can request this declaration every month for each new rent payment due through June 30, 2021.

Protected Period Rent Defaults

Landlords cannot seek past rent from defaulting, non- High Income tenants for this time period through the eviction process. The landlord must seek this past rent through small claims only. See below about local moratoriums.

Transition Period Rent Defaults

Landlords can only seek 25% of the rent during this period through the eviction process. In other words, the tenant only has to pay 25% of their rent from September 1, 2020- June 30, 2021 to retain possession of their unit and not be evicted. 75% of the rent during this period must be recovered in small claims.

Landlord Notices to Tenants re Rent Defaults

  • Landlords now have to add additional, very lengthy language to notices to pay rent or quit. The exact language is outlined in the statute. This notice is different from the one served in September 2020.

  • The landlord must give the tenant a 15 day notice to pay or quit, not a 3 day notice as usual. The notice must contain specific language outlined in the statute and varies depending if the tenant is High Income or not. 15 days does not include the day rent is due, Saturdays, Sundays or Judicial Holidays.

  • Starting February 1, 2021 landlords must serve a notice, specific language found in the statute, to all tenants who have defaulted on rent.

Allowable Evictions

High income tenants can be evicted for failure to pay rent during the Protected Period, but there are several strings attached:

  • The landlord must give the tenant a 15 day notice to pay or quit.

  • A high income tenant must provide a declaration with proof of financial hardship to the landlord within the notice period to be protected. Non high-income tenants don't have to provide proof with their declaration.

  • The high income tenants failure to do so will result in the eviction moving forward.

Starting July 1, 2021 tenants will be responsible for paying full rent each month. The courts will not issue summons on unlawful detainers for failure to pay rent until October 5, 2020.

Local Eviction Moratoriums

Localities are in the process of extending their eviction moratoriums as AB 3088 appears to authorize that. As such Los Angeles County and West Hollywood have both extended their eviction moratoriums through March 31, 2021.

Payback Periods

Repayment periods, regardless of the local eviction moratorium, begins August 1, 2021, if the local eviction moratorium provided some form of repayment commencement date tied to the state/ local declaration of emergency as over. Interestingly, the extension of AB 3088 states that payback periods of back rent cannot be extended past August 31, 2021.

Federal Stimulus Aid

Landlords are given a lifeline through the $2.6 billion in Federal stimulus aid that California will start distributing in February 2021. The caveat- landlords must accept 80% of tenants back due rent between April 1, 2020-March 31, 2021 from the stimulus funds and in exchange forgive 20% of the back rent and not file an eviction based on the remaining rent due. If landlords don't take this deal they risk a monetary judgment in an eviction because a judge has the discretion of lowering a monetary award for back rent because the landlord did not participate in this program.

Words for the Wise

Landlords have substantial burdens to prove at trial in complying with the statute or risk losing an eviction. As only in California, there are layers upon layers of rules the landlord must follow in order to get the case to pass muster. A defective notice will automatically dismiss your case and you will need to start again. Additionally, local eviction moratoriums are some what grandfathered in, some overlapping and some being moot.

A landlord should not go about this themselves and are advised to consult an eviction attorney, like myself, to go through this with you. I am available by phone (818) 306-0686 and email- sasha@struthers.legal. Don't hesitate to call with any questions.

The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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