Housing is a Human Right

The Oakland City Attorney's office, through Barbara Parker, announced a new Housing Justice Initiative which includes a Know Your Rights campaign. We applaud Ms. Parker and her initiative. Click on the links provided to learn more.

BACK-RENT AND CONSUMER DEBT - An Issue Tenants May Face in March 2021

City and county governments and the State of California are encouraging tenants to develop installment payment agreements with their landlords concerning back-rent owed.

Tenants who owe back rent dating from March 1, 2020 through and including January 31, 2021, and who do not agree to a voluntary payment plan with their landlord may be sued in a court proceeding beginning no sooner than March 1, 2021.

While unpaid rent is converted to consumer debt in the Oakland, Alameda County, and many other local eviction moratoria as well as the new state moratorium (AB 3088), the landlord has the authority to sue in Small Claims court to recover this debt. 

Click here for the State's excellent primer to Small Claims proceedings.

The advantage of Small Claims court is that both the landlord and the tenant represent themselves at the initial hearing; attorneys are not allowed to represent either party placing both parties on an “equal” playing ground. The disadvantage to a small claims proceeding is that the actual hearing time in front of the judge, commissioner, or hearing officer is limited leaving scant time for either party to present their case. 

Both parties can bring their documentation to the hearing (or submit it with their initial complaint or answer to the complaint) including such documents as:

• The lease agreement,
• Evidence about how much rent was paid and how much back-rent is owed (bank statements,[1] copies of checks, landlord “Notices to pay rent or to Quit”),
• Email communications and letters concerning rent payments and rent owed, 
• Agreements to pay back-rent, if any, 
• Copies of all signed declarations such as the Declaration of COVID-19 Related Hardship and/or the CDC Declaration, and
• Any other relevant documentation. 

In addition to being sued for back-rent owed, tenants will need to pay court filing fees to answer a court proceeding and incur incidental costs such as copying costs and mailing fees. If tenants lose in court, they can appeal the judgment within 30-days, but attorneys can represent the tenant and the landlord at the appeal hearing.

If the landlord sues the tenant in Superior court and there is an attorneys’ fees clause in the lease agreement awarding fees to the prevailing party, the tenant is likely to have an even larger financial judgment against them for back-rent, costs, and attorneys’ fees. [Look for a clause in the lease agreement entitled “Attorneys’ fees.”]

Judges in both courts encourage parties to settle their dispute in advance of trial through mediation. Mediation services may be offered by the court but in Oakland, the tenant or landlord may be able to apply for mediation services through the rent board.

In either Small Claims or Superior court, a settlement may be achieved before a court judgment, with or without mediation, and an installment payment plan can be incorporated into the settlement agreement.

If there is no settlement agreement, the judge may award a money judgment for back-rent to the landlord. A money judgment could affect the tenant’s credit rating, credit score, and ability to secure new housing.

Collecting on the Debt:

Even with a court judgment, landlords may find it difficult to a collect tenant's unpaid rent.

The landlord may need to secure a wage garnishment from the court to help collect the debt if the tenant is employed. 

The landlord may also attempt to collect the judgment from some of your assets unless these assets are exempt from collection. 

In the alternative, the landlord may hire a collections company to pursue the debt. If the collection company settles with the tenant for the debt, the tenant will be issued a 1099-C for the amount not paid and be required to pay income taxes on the forgiven debt. So, if the tenant owes $10,000 and settles for $1,000, they may receive a 1099-C for $9,000. The 1099-C is considered taxable income.

Bankruptcy:

For tenants with significant amounts of unpaid back-rent that they are unable to pay, bankruptcy may be the only option. Bankruptcy not only affects a tenant’s credit rating but the ability to secure new housing. “Have you ever filed for a bankruptcy proceeding?” is a standard question on rental applications. But, filing for bankruptcy can also provide welcome relief to tenants who not only have unpaid back-rent but also other debt that has mounted during the COVID-19 pandemic; they can get a "fresh start" through a bankruptcy proceeding.

Conclusion:

Net, net, it is better to work out a payment plan with your landlord. While Oakland’s eviction moratorium allows 12-months to repay back-rent, under the new state law, repayment of back-rent must begin no later than March 1, 2021. In Oakland, the repayment period and the installment plan agreement is covered by Regulations that work together with the Oakland Eviction Moratorium, some of which may be modified by the new state law, AB 3088.

[1] Be sure to redact (e.g. mark-out) account numbers, social security numbers, birthdates, and any other personally identifiable information before filing anything with the court as these documents may become part of public record.

Are You an Oakland Tenant and Need Help Paying Rent? Help May be Available!

Centro Legal is administering tenant rental assistance received by the City of Oakland through the Cares Act. Click here for more information.

Also see assistance available to tenants to help pay their back rent. See information below. For more information about Roots Community Center, click here.

Roots Community Health Center is proud to announce it has been selected as a 2020 California Nonprofit of the Year by By Senator Nancy Skinner.

Also see Bay Area Community Services for financial assistance.

And see Catholic Charities for financial assistance.

The City of Oakland received funding from the Cares Act and may be a source of financial assistance. Click here.

San Francisco Leads Again and Passes a Ban on No Fault Evictions!

For more about this No Fault eviction ban in San Francisco, see KRON 4 news report published on October 7, 2020.

San Francisco is setting the stage for other Bay area cities. Now, let's see if they step up!

I LIVE IN OAKLAND AND I CAN'T PAY MY RENT. AM I PROTECTED FROM EVICTION?

If you live in Oakland, you may be covered by one or more eviction moratoriums.

AM I COVERED BY OAKLAND’S EVICTION MORATORIUM?

If you are a residential tenant in Oakland covered by the Just Cause Ordinance, you are also covered by the Oakland Eviction Moratorium which provides protections for non-payment of rent due to COVID-19. Click on the link to learn the details about these protections.

HOW DO I KNOW IF I AM COVERED BY OAKLAND’S JUST CAUSE ORDINANCE?

You are covered by the Just Cause Ordinance if the building in which you reside meets the criteria below:

Residential rental units that are located in a building that the City has approved for tenants to occupy (e.g. has been issued a certificate of occupancy) on or before December 31, 1995.

There are narrow exceptions to the above which you can read about in the ordinance itself.  One of these exceptions is as follows:

“Rental units in a residential property where the owner . . . occupies a unit in the same property as his or her principal residence and regularly shares in the use of kitchen or bath facilities with the tenants of such rental units.”

HOW DO I KNOW WHEN MY BUILDING WAS BUILT?

Call the Oakland Building Records Department, visit their office, or access their on-line information.

WHAT IF MY BUILDING IS NOT COVERED BY OAKLAND’S JUST CAUSE ORDINANCE? ARE THERE ANY EVICTION PROTECTIONS THAT APPLY TO ME?

Yes. You may be covered by the Alameda County Eviction Moratorium.

WHAT IF I AM NOT COVERED BY THE OAKLAND OR THE ALAMEDA COUNTY EVICTION MORATORIUM?

If you can’t pay your rent due to a COVID-19 related reason, you may be covered by the State of California Eviction Moratorium known as AB 3088 or the COVID-19 Tenant Relief Act of 2020. Click on the link to learn more about the state eviction moratorium.

"Keep Oakland Housed" provides excellent guidance to the interaction between the City, County, State and Federal (CDC) eviction moratoria and specific guidance concerning  required declarations under both the state and federal eviction moratoria. Click here to learn more.

I RECEIVED A 15-DAY NOTICE TO PAY RENT OR QUIT AND A DECLARATON OF COVID-19 RELATED HARDSHIP. 

This Notice and Declaration is related to the State of California Eviction Moratorium and requires tenants to read and sign - under penalty of perjury - a Declaration that they can't pay the rent due to COVID-19 related reasons. The Declaration must be provided to the landlord within 15-days. If you are already protected by a City or County eviction moratorium and receive this Declaration, your landlord may or may not be aware of the local protections. Click here for more information provided through ACCE, a state-wide tenants organization.

Also see "Keep Oakland Housed" information.

WHAT SHOULD I DO IF I RECEIVE A NOTICE AND DECLARATION referred to above?

Consult a non-profit legal agency or a private attorney immediately for guidance before signing any declaration.

You can also call the Alameda County Bar Association for a legal referral and pay a $40 fee for a private attorney consultation. Make sure that you ask for a referral to a landlord-tenant attorney.

Also see "Keep Oakland Housed" information.

WHAT IF I AM BEING EVICTED FOR ANOTHER REASON UNRELATED TO MY NON-PAYMENT OF RENT LIKE THE ELLIS ACT?

You may be temporarily covered by the CDC Eviction Moratorium. Click here for additional information about the CDC (federal) eviction moratorium requirements.

Consult a non-profit legal agency or a private attorney immediately for guidance. 

Also see "Keep Oakland Housed" information.

WHO DO I CALL FOR HELP?

In Oakland, contact the housing counselors at the Oakland Rent Adjustment Board. 

PHONE HOURS MONDAY-THURSDAY: 9:30 am to 4:30 pm
Phone: (510) 238-3721

DROP-IN MON THROUGH THURS: 9:30 am to 4:30 pm
Address:
250 Frank H. Ogawa Plaza, Suite 5313
Oakland, CA 94612

You can also email the housing counselors at: rap@oaklandnet.com.

Click the link here for assistance with the Alameda County Ordinance.

For non-profit attorneys, see the right side of this blog and see "Defending Yourself in an Eviction Proceeding" or contact a private attorney for assistance. 

You can contact the Alameda County Bar Association for private attorney referrals and pay a $40 fee for a 30-minute consultation with an attorney.  Make sure that you ask for a referral to a landlord-tenant attorney.

Whoa! I understand that Contra Costa County recently amended their eviction moratorium - how did they do this? And, what is Oakland's take on the new state law? It's "hella" complex!

    The interaction of the new State (AB 3088), county, and local eviction moratoria IS highly complex and requires a careful reading of the law. 

    I am going to try to simplify things and speak about the recent amendment of the Contra Costa County eviction moratorium - and their authority to make this revision - as well as Oakland's Eviction Moratorium below.

    In enacting AB 3088, the state legislature expressly allowed cities and counties to enact or to amend Just Cause Ordinances. See C.C.P. sec. 1179.05(b).

    Because the State Eviction Moratorium affects ALL residential tenancies and refers to the new Just Cause state law enacted in 2019 (AB 1482), the Legislature added the following wording under the new state eviction moratorium as follows:

C.C.P. § 1179.05(b): 

“(b) This section does not alter a . . .city and county’s authority to [adopt or amend] an ordinance that requires just cause for termination of a residential tenancy. . . consistent with . . .[C.C.] sec. 1946.2 (g), provided that a provision enacted or amended after August 19, 2020, shall not apply to rental payments that came due between March 1, 2020, and January 31, 2021.” [Emphasis added.]

    In turn, C.C. sec. 1946.2(g) affects cities and counties with Just Cause ordinances and divides them into two categories: 

1) An ordinance enacted on or before 9/1/2019, and

 2) Just Cause ordinances adopted or revised after 9/1/2019 and allowing new or amended ordinances that are “more protective” than state law.

    The interaction of these two laws allowed Contra Costa County to amend their Eviction Moratorium on 9/22/2020 and to extend it through 1/31/2021. The amended County Eviction Moratorium also prohibits rent increases during this time.

CONTRA COSTA COUNTY:

Excerpts of the revised County ordinance follow:

“Q.   On August 31, 2020, the Governor signed [AB 3088], the COVID-19 Tenant Relief Act of 2020 (the Act), which went into effect immediately. The Act extends eviction protections for residential tenants, including mobilehome tenants, who are experiencing a financial hardship related to COVID-19."

"AA. The Board finds, pursuant to [C.C. sec. 1946.2] and [C.C.P.] sec. 1179.05(b), that the just cause for termination of a residential tenancy under this urgency ordinance is consistent with [C.C. sec. 1946.2(g)(B)]; this urgency ordinance, by prohibiting a landlord from terminating a residential tenancy on the basis that a tenant allowed an unauthorized occupant to live in the dwelling unit if the occupant is the tenant's immediate family member living in the dwelling unit as a result of the COVID-19 pandemic, provides additional tenant protections that are not prohibited by any other provision of law; and this urgency ordinance is more protective than the provisions of [C.C.] sec. 1946.2."

OAKLAND:

    Oakland recently weighed in on AB 3088 and the Oakland Eviction Moratorium at the rent board meeting on 9/24/2020, Legislative Update, Sec. 7(b), Page 10:

Deputy City Attorney Qian advised: 

     “At the State level, the Judicial Council voted to end the ban on evictions on August 31, 2020. The Legislators [sic] passed AB 3088, signed on August 31, 2020, to create eviction protections for tenants due to COVID-19 [sic]. This stops evictions until February 2021. The State law provides that tenants cannot be evicted but have to pay 25% of all the rent due [by] February 1, 2021 and must resume paying the monthly rent beginning in February 2021.”

    “In Oakland, if the tenants are covered by the [Just Cause] Ordinance,[1] they can use the Oakland Moratorium until the end of the Local Emergency due to COVID-19 [sic]. If tenants cannot pay rent due to COVID-19 [sic] this cannot be a basis for eviction. Starting March 1, 2021, the owner can file in small claims court for rent due from tenants.” 

    Oakland further discusses AB 3088 on page 2 of the City issued FAQ’s and touches on the federal CDC eviction moratorium. The City does not discuss eviction protection for tenants not covered by Oakland's Just Cause ordinance that may be available under the Alameda County Eviction Moratorium.

NOTE: Oakland’s Just Cause Ordinance, 8.22.360 was enacted in 2003. Measure Y added owner-occupied duplexes and triplexes was passed by voters in the November 2018 election and this addition became effective on 12/31/2018.

However, in Oakland's original eviction moratorium document, the following was stated:

"WHEREAS, the City Council finds that the Just Cause for Eviction Ordinance, as amended herein, is consistent with Civil Code Section 1946.2 (as enacted by the Tenant Protection Act of 2019), is more protective than Civil Code Section 1946.2, and, in comparison to Civil Code Section 1946.2, further limits the reasons for termination of residential tenancy, provides additional tenant protections, and, in conjunction with other City ordinances, provides for higher relocation assistance payments . . . "[Emphasis added.]

  If you are a tenant covered by a City or County eviction ordinance who has received the "Declaration of COVID-19 Related Hardship" which may be accompanied by a 15-Day Notice to Pay Rent or Quit, please immediately consult a non-profit legal agency or a private attorney before signing any document. 

See the right side of this blog entitled, "Defending Yourself in an Eviction Proceeding" which lists non-profit legal agencies that may assist you.

    The following article published in "Medium" and written by Zack Haber, is also "hella" interesting and underscores what tenants can do in concert together.(I wonder who their attorney is?)

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[1] The wording from the Ordinance is quoted as follows: “WHEREAS, pursuant to Oakland Municipal Code Section 8.22.360F, the City Council may add limitations to a landlord’s right to evict under the Just Cause for Eviction Ordinance…”