What you Need to Know about the Santa Clara County Covid-19 Residential and Commercial Eviction Moratorium

In light of the Coronavirus (“Covid-19”) Pandemic that has affected schools, businesses, housing and employment, the Santa Clara County Board of Supervisors adopted Ordinance No. NS-9.287, an Urgency Covid-19 Eviction Moratorium (“SCC-Moratorium”), on March 24, 2020. The SCC-Moratorium immediately took effect and it expires on May 31, 2020, unless extended by the Board of Supervisors.  

On March 27, 2020, Governor Gavin Newsom executed Executive Order N-37-20 (“State-Moratorium”). The State-Moratorium immediately took effect, applies to all residential tenancies and expires on May 31, 2020, unless extended by Governor Newsom.  

As landlord and tenants must navigate and abide by the State-Moratorium, SCC-Moratorium and other local ordinances, below is a highlight of the SCC-Moratorium.

Application:

The SCC-Moratorium applies to all nonpayment of rent due to impacts of the Covid-19 outbreak for residential and commercial tenants within the cities and unincorporated areas of Santa Clara County.

An ordinance that is enacted by a City or unincorporated area will replace the Santa Clara County Ordinance only if it is more protective of the Affected Tenants.

The official language of the SCC-Moratorium is available here.

Landlord’s Duty:

If a tenant does not pay rent during the SCC-Moratorium period, a landlord must serve the tenant the following three documents: 

1. 3-Day Notice to Pay Rent or Quit, which shall be in compliance with Code of Civil Procedure Section 1161(2);
2. Notice of Tenant’s rights under this Ordinance; and
3. Notice of Emergency Rental Assistance Programs.  (Collectively the “SCC-Moratorium Packet”). 

The landlord is not required to, but should also, serve the tenant copies of the State-Moratorium and SCC-Moratorium.

No-fault evictions are permitted under the State-Moratorium and SCC-Moratorium; however, if the tenant is deemed an Affected Tenant, then a landlord is not permitted to proceed with a no-fault eviction. The State-Moratorium precludes all California Superior Courts from issuing a Writ of Possession against an Affected Tenant and precludes law enforcement from enforcing any Writs until the expiration date of May 31, 2020.

Noncompliance with the SCC-Moratorium is an affirmative defense for the Affected Tenant, voids any termination of tenancy notice, treble damages and landlords may be subject to civil fines and penalties as set forth in Division A1 of the County Ordinance Code. 

Tenant’s Duty:

A tenant who has been impacted by Covid-19 (“Affected Tenant”) must notify their landlord in writing of such financial hardship to stop an eviction based upon nonpayment of rent.

There is no mandatory notification form that the Affected Tenant must use, so they may prepare their own notice.

In such notification, the Affected Tenant must provide documented proof of their loss or decrease of income, substantial out of pocket medical expenses for themselves or their immediate family members related to the 2020 Covid-19 pandemic, which includes but is not limited to:

1. Termination letter/reduced hours letter from employer citing Covid-19;
2. Paycheck stubs from before/after Covid-19 outbreak; 
3. Bank statements from before/after Covid-19 outbreak; or
4. Other objectively verifiable proof of the same.

Though Affected Tenants will not have to pay rent during the SCC-Moratorium period, they remain liable for the unpaid rent once the SCC-Moratorium period expires on May 31, 2020. The SCC-Moratorium is a delayed payment of rent, not a waiver of rent; thus, Affected Tenants will have to pay the back rent owed within 120 days after the expiration of the SCC-Moratorium.

The SSC-Moratorium states that a landlord cannot collect late fees or other costs associated with nonpayment of rent; however, landlords may collect such fees if the Affected Tenant has not paid the back rent within 120 days after expiration of the SSC-Moratorium.

Tenants who have not been impacted by Covid-19 shall pay rent in their usual course. 

County of Santa Clara Court Closures:

On March 13, 2020, Presiding Judge Deborah A. Ryan issued an Emergency Order for the health and safety of the citizens within Santa Clara County. This Order has frozen all current Unlawful Detainer Matters until April 5, 2020.

On March 27, 2020, the Santa Clara County Court issued another Order in which all evictions are prohibited until May 31, 2020.  Meaning, all current hearings on Unlawful Detainer matters and any evictions that were to take place by the Sheriff’s Department are postponed and  landlords are unable to file an Unlawful Detainer Complaint until June 1, 2020, unless the Order is extended, and their right to do so is not waived. 

City Ordinances:

Cities within Santa Clara County that have passed their own Eviction Moratorium Ordinances as of April 2, 2020:

1. Los Gatos
2. Mountain View
3. Palo Alto-Executed Ordinance Not Publicly Available
4. San Jose
5. Santa Clara
6. Sunnyvale-Executed Ordinance Not Publicly Available

Cities within Santa Clara County that have not passed their own Eviction Moratorium Ordinances as of April 2, 2020:

1. Campbell
2. Cupertino
3. Gilroy
4. Los Altos
5. Los Altos Hills
6. Milpitas
7. Monte Sereno
8. Morgan Hill
9. Saratoga

Changing Landscape:

The SCC-Moratorium is based upon the current landscape of Covid-19 and depending on its spread and other measures taken by Federal, State and Local Governments, the SCC-Moratorium may be extended to a further date, altered or expired by May 31, 2020.

Landlords and tenants should check with their attorney and/or the County’s website in order to ensure that no changes to the SCC-Moratorium have occurred since the posting of this article.

Brewer Offord & Pedersen LLP will continue to monitor the County’s response and will provide updates when appropriate.