Confusing state eviction deal creates ‘know-your-rights’ crisis for tenants, advocates

California’s last-minute passage of an eviction moratorium bill late Monday night has left tenant organizers scrambling to understand its impact.

California’s last-minute passage of an eviction moratorium bill late Monday night has left tenant organizers scrambling to understand its impact.

Gov. Gavin Newsom on Monday signed Assembly Bill 3088, which he negotiated with San Francisco Assemblymember David Chiu and other legislators before introducing it on Friday, leaving no time for amendments to be made before the legislative deadline. The bill converts any rent missed between March 1 and Aug. 31 into a civil debt that landlords can pursue in small claims court — but cannot use as a reason to evict tenants.

But California tenants must pay 25 percent of their rent between Sept. 1 and Jan. 31 to be protected from eviction, and eventually pay off the rest.

“This will not be the ultimate solution to addressing COVID-19 evictions, but will tide us over for the next five months,” said Chiu, who authored Assembly Bill 1436 that was more widely pushed by tenant organizers. “This gives us the time to reconsider our options next legislative session and potentially work with a new federal administration on economic relief for struggling tenants and property owners.”

What this means for San Francisco, and other cities that passed local laws providing their own eviction protections is far from clear. The bill grandfathers local legislation passed before Aug. 19, but will affect some executive orders issued by Mayor London Breed.

Tenants in The City appear to have until Sept. 30 until AB 3088, or the COVID-19 Tenant Relief Act of 2020, kicks in. The bill largely ends on Feb. 1.

In June, The City permanently banned evictions due to nonpayment caused by coronavirus. Breed has also repeatedly extended executive orders that ban all residential evictions until Dec. 1 — except for those related to safety issues — and give tenants six months to pay missed rent, among other things.

The latest extension of those executive orders occurred on Aug. 25, meaning that portions related to non-payment are preempted by AB 3088.

However, Supervisor Dean Preston tied the permanent eviction ban legislation he authored to an executive order Newsom issued in March, which lasts through Sept. 30. He is currently looking at ways to prepare San Francisco for AB 3088’s February sunset.

“We tied legislation to the governor’s order because we felt that was the strongest way to ensure that the law stood up in court,” Preston said. “In my view, the state should have completely exempted cities like San Francisco that want to have stronger protections from any limits at the state level. Because of the state deal, San Francisco tenants are vulnerable to being sued for the back rent in small claims court.”

Groups including the Housing Rights Committee of San Francisco and the California Rural Legal Assistance Foundation, as well as staffers representing Preston and Chiu, said AB 3088 doesn’t preempt the governor’s executive order.

But tenant organizers are still very much cautious. For now, the common recommendation is to collect all documentation to do with work and income plus communications with landlords. Tenants must submit notice of nonpayment due to coronavirus within 15 days of rent being due using an AB 3088 template.

Tenants facing financial hardship due to coronavirus should send a letter, signed under penalty of perjury, with this specific language included in Assembly Bill 3088.

Tenants facing financial hardship due to coronavirus should send a letter, signed under penalty of perjury, with this specific language included in Assembly Bill 3088.

Further complicating the patchwork of protections is a Trump administration announcement Tuesday afternoon that households making $99,000 or less annually would be protected from eviction due to coronavirus through the end of 2020. The Centers for Disease Control mandate defers to stronger state protections, but California’s 25 percent rent requirement puts that up for debate, said Brian Augusta, a legislative advocate for the California Rural Legal Assistance Foundation.

The San Francisco Apartment Association is also sussing out what landlords need to know, but deferred statements to the California Apartment Association, which emphatically opposed AB 1436.

“To truly address this crisis, the federal government needs to step up,” said Debra Carlton, the association’s executive vice president of state public affairs. “COVID-impacted renters need financial assistance, from the feds, so they can pay their rent. Otherwise, renters will be hard-pressed to pay the rent that’s accumulated, and housing providers will go out of business.”

Newsom’s proposal on Friday drew swift condemnation from tenant organizers. Allowing protections to expire in February leaves little room for the California Legislature or a potential new federal administration to institute a replacement, leaving tenants to struggle to pay back rent and future rent during a Depression-level downturn.

Plus, notices to landlords come with a penalty of perjury, which could mean consequences for a clerical error, while tenants making more than 130 percent of Area Median Income must provide detailed financial information. Most tenants do not have legal representation and may just depart rather than head to court, leaving landlords with little recourse to retrieve back rent.

But perhaps the biggest, immediate hurdle is having tenants navigate these requirements while advocates struggle with what information to relay.

“It’s a know-your-rights crisis, too,” said Shanti Singh, spokesperson for Tenants Together. “The more caveats you put in there, the harder it is to communicate peoples’ rights to them. The fact that tenant advocates and lawyers are struggling to understand it isn’t a good sign. This slows or delays the pain but it doesn’t avoid it.”

For assistance from tenant counselors, visit the San Francisco Rent Board’s list of referral organizations.

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