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Legal • September 20, 2020

Frequently Asked Questions A.B. 3088

 ASSEMBLY BILL 3088 - the “Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020”


These frequently asked questions are provided under the advice of counsel. However, the City of Berkeley and the Rent Stabilization Board have not clarified how AB 3088 interacts with the city’s Eviction Moratorium which remains in effect. Therefore, landlords are advised to seek legal advice pertinent to their specific situation.


Q: Under the local emergency-related eviction moratorium, may a landlord evict a tenant for reasons other than non-payment of rent due to adverse COVID-19-related financial impacts?


A:  No. Berkeley’s Eviction Moratorium extends to all rental units (regardless of whether your unit falls under the Rent Stabilization Ordinance or not) and prohibits any and all evictions, except those under the Ellis Act or for the “health and safety” of other renters (this does not include health related to COVID-19). The local Eviction Moratorium does not expire until the local state of emergency is lifted. If you believe you have a health and safety issue, please consult with an attorney to seek your options to evict.


Q:  What is the interplay between state (AB 3088) and the local law?


A:  In general, Berkeley’s local eviction moratorium adopted in response to the COVID-19 pandemic can remain in place until the end of its term. But any new or modified version of the eviction moratorium cannot have an effective date prior to February 1, 2021. 


AB 3088 says that ff a local eviction moratorium provides for repayment of back due rent to begin after March 1, 2021, or ties repayment to the end of the state of emergency or local emergency (as is the case in Berkeley), that repayment period is required to start on or before March 1, 2021 and end by March 31, 2022. That means if your tenant has non-payment of rent due to COVID-19, they will be required to make repayment between March 1, 2021 and March 31, 2022.


Q:  What about the portion of AB 3088 that states a tenant must pay at least 25% of rent between September 1 and January 31 in order to not be evicted for non-payment of rent?


A: The city of Berkeley’s website only states in relation to AB 3088 that “The moratorium protects you from eviction for non-payment until February 2921. Under the law, tenants must pay back 25% of the rent they would have owed between September and January, no later than January 31, 2021.“ AB 3088 does not dictate that the tenant must pay the 25% each month, but rather than they may not be evicted for non-payment of rent if they pay 25% of the rent due by January 31, 2021.


Q:  What happens if rent is not paid when due for the period beginning February 1, 2021 and thereafter?


A:  AB 3088 states that come March 1, 2021, a landlord can bring a civil lawsuit for debt collection (to collect the unpaid rents covered by the State law). At this time, it is unclear what will happen after March 1 – both at the state level and the local level. We anticipate that when the state legislature is back in session, they will be working on the next version of AB 3088, which may or may not require a tenant to start paying “regular” rent come March 1, 2021.


Q: I’m confused. Which law should I comply with, my local jurisdiction’s law or state law under Assembly Bill 3088?


A:  Landlords should comply with both the local jurisdiction’s moratorium and the state law. This means that landlords should provide notices and documentation under the local jurisdiction’s moratorium and notices as required under state law. Berkeley’s local eviction moratorium does not allow you to serve a tenant a notice to pay or quit for non-payment of rent.


Q:  Should I seek legal help?


A:  Having local, state and now Federal eviction moratoriums, there is potential for conflict among each of the competing regulations and there is lots of potential for conflict. Also, every situation is different, so it is advised that you seek competent legal counsel before issuing any notice to pay rent or quit.


Q:  May a landlord still give a tenant notice for non-payment of rent?


A:  We are uncertain at this time. AB 3088 states that despite any prohibitions that might exist under local eviction moratoriums, a landlord may provide notice and documentation under the local jurisdiction’s moratorium, and notice required by state law. However, the notice must provide 15 days instead of just three (3) days to pay. Until we get further clarification in coordination with the Rent Stabilization Board, we are recommending that landlords do not serve any notices to pay or quit.


Q:  Have my tenant’s repayment deadlines changed due to the new state law?


A: Yes. The new law provides eviction protections through January 31, 2025, but in order to be protected a tenant must (1) return the declaration of COVID-19-Related Financial Distress form within 15 days after receiving any notice to pay rent or quit, and also pay 25 percent (25%) of each month’s rent that becomes due between September 1, 2020 through January 31, 2021 on or before January 31, 2021. Keep in mind that until a local jurisdiction’s emergency moratorium has expired, the local ordinance will apply.  For example, if a local jurisdiction’s eviction moratorium expires on September 30, 2020, whether or not a tenant pays 25 percent of the September rent by January 31, 2021, the protections of the local jurisdiction’s moratorium will still apply to that September rent, and therefore, only 25 percent of rent due between October 1, 2020 and January 31, 2021 (4 months instead of 5 months) may be due on or before January 31, 2021.


Q: What other options exist for collecting past due rent?


A:  Assembly Bill 3088 allows unpaid rent and other charges due between March 1, 2020 and January 31, 2021 to be collected through small claims court. Existing small claims court limits will not apply.  These small claims cases may not be filed; however, before March 1, 2021.


Q:  How should a landlord serve any AB 3088 notice?


A: Landlords may serve notices and a copy of the Declaration of COVID-19-Related Financial Distress form in the following ways: 1)  In person or posted on the tenant’s door; 2) By email; 3) By U.S. mail or overnight courier. 


It is important to maintain proof that the notices and/or the Declaration of COVID-19-Related Financial Distress form were delivered. For example, if you mail the declaration, you should obtain proof of mailing or proof of service from the Post Office and take a picture of the signed declaration alongside the addressed envelope.  IMPORTANT: It is suggested owners keep in their records a copy of each such notice and a standard form “Proof of Service” as evidence of providing this notice in addition to any other documentation (e.g., certified return receipt).  Do not provide a copy of the proof of service to your tenant. 


Q:  Do tenants have to provide any documentation to prove inability to pay?


A:  Many tenants do not have to provide documentation other than the signed Declaration of COVID-19-Related Financial Distress form. However, “High-income tenants” (those earning more than $100,000 in household income or more than 130 percent of median household income, whichever is greater) must provide documentation to support their declaration upon a landlord’s request. However, a landlord may only require documentation if the landlord has evidence of “high-income tenant” status in the landlord’s possession before serving a nonpayment eviction notice.  


In other words, if a landlord’s records contain a tenant’s application and screening that indicates a tenant is a “High-Income Tenant,” then a landlord may require proof of COVID-19-Related Distress.


Q: May I evict my tenant for unpaid rent between March 1, 2020 and August 31, 2021 once the local eviction moratorium expires?


A: No. Assembly Bill 3088 prohibits a landlord from evicting a tenant for non-payment of rent or other charges that came due between March 1, 2020 and August 31, 2020 if the resident provides the landlord with a declaration stating their finances have been negatively affected by the COVID-19 pandemic. “High-income” residents, as defined, can also be required to provide documentation of their COVID-19-related hardship, provided the landlord follows a specific procedure.


Q: What information are landlords required to give tenants about Assembly Bill 3088, the new state law?


A:  Landlords are required to give an informational notice about the new law to any residents who, as of September 1, 2020, have missed one or more payments that came due between March 1 and August 31, 2020.  The Apartment Association has created a “Notice of COVID-19 Tenant Relief Act of 2020” form for this purpose.


Q:  Even though a tenant cannot be evicted, is the rent still owed?


A:  Yes, neither a local jurisdiction’s Eviction Moratorium nor the state law cancels rent.  While the state law protects tenants from eviction for nonpayment of rent during the covered periods, the unpaid rents are still owed to the landlord as a form of consumer debt, and a landlord can sue a tenant to recover and collect the unpaid rents in small claims courts or other civil courts. The new state law provides that landlords may not sue to try to collect rent that became due between March 1, 2020 and January 31, 2021, until March 1, 2021. 


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