Simone & Blevins

Tag: unlawful detainer

  • COVID-19 Q & A

    Q: I heard on the news that there is an eviction moratorium in the state of California. What that does that mean?

    A: On April 6, 2020, the Judicial Council of California enacted Emergency Rules to stop all prejudgment unlawful detainer (eviction) cases and prohibits filing new cases unless the court finds that the unlawful detainer case is necessary to protect public health and safety.

    Q: My tenant is creating a nuisance at my rental property. Are there any exceptions to the eviction moratorium?

    A:  Yes, the Emergency Rules enacted by the Judicial Council allow an unlawful detainer (eviction) to proceed if the court determines the action is necessary to protect public health and safety. If your tenant is creating a nuisance at the property that is affecting public health and safety, then you may proceed with an eviction based on nuisance when the Courts reopen.

    Q: I know that the Judicial Council of California enacted Emergency Rules that created a moratorium on all evictions unless the eviction is necessary to protect public health and safety.  How long does this moratorium last and when can I file an eviction for non-payment of rent?

    A: The eviction moratorium stays in place for 90 days after the state of emergency is lifted by the Governor of California.  When the moratorium is lifted, then you may file an eviction based on non-payment of rent. However, your tenants may have certain protections if the reason for non-payment is related to COVID-19.  You should consult with an attorney prior to serving any notices.  

    Q: My property manager told me that the court is closed. How does the court closure affect my ability to evict my tenant?

    A: The San Diego Superior Court is closed from March 13, 2020 through May 22, 2020 and is not currently accepting any filings.  The Court is set to re-open on May 26, 2020, however, this is subject to further extensions.  Additionally, the court declared that all business days that fall within this period as court holidays. Court holidays, which include weekends, are not counted towards the notice period for a 3-day notice to pay rent or quit, 3-day notice to perform covenant or quit, or in the answering period for a defendant to respond to an unlawful detainer case.  Thus, if you serve one of these notices during the Court’s closure, it will not expire until after the Court reopens. Further, all other notices to terminate tenancies (i.e. 30 or 60-Day Notice to Quit) cannot expire on a court holiday or the weekend, so a notice to quit cannot expire until the Court reopens.  The laws are changing quickly and you should consult with an attorney before serving any notice on your tenants.

    Q: I know the Governor of California declared a state of emergency and issued executive orders that protect tenants who cannot pay their rent due to COVID-19.  How do the executive orders affect my ability to collect rent from my tenants?

    A: Governor Newsom issued Executive Order N-28-20, which allows local governments (incorporated cities and counties) to enact legislation that halts residential and/or commercial evictions for non-payment of rent when there is a documented decrease in household income caused by COVID-19. For example, many cities in San Diego county have enacted local ordinances that allow a tenant to defer their rent payments if 1) the tenant timely provides notice to their landlord of their inability to pay rent due to COVID-19, and 2) timely provides the landlord with documentation that the tenant is unable to pay rent due to COVID-19.  If the tenant provides the proper notice and documentation, then the local laws restrict the landlord’s ability to demand rent.  Many of the laws enacted by the local governments are similar but have varying differences and effects. Thus, you should consult an attorney prior to serving your tenants with any notice to pay rent or quit.

  • New Laws Effective August 2019

    Q: I own a property in the City of San Diego and I do not want to rent to Section 8 tenants or tenants with rental assistance. Is it legal for me to refuse to rent to tenants that receive rental assistance?

    A: It depends on the location of the rental unit.  Effective August 1, 2019, landlords with properties in the City of San Diego cannot refuse to rent to a prospective tenant or terminate a tenancy based only on the tenant’s source of income, including rental assistance from programs like Section 8 (see San Diego Municipal Code §98.0803 for full list of prohibited adverse actions). A landlord in the City of San Diego will be required to consider all Section 8 payments or any other assistance program payments as part of the prospective tenant’s annual income. Landlords will still be able to screen applicants according to lawful screening practices. After August 1, 2019, if you violate this law, a tenant may file a lawsuit against you within one year of the discovery of the alleged violation. Additionally, if the court finds that there was a violation prior to the tenancy or during the tenancy, the court can award up to three times the monthly rent that was advertised as well as punitive damages, attorney’s fees and costs.  Please note, this only applies to rental properties in the City of San Diego or cities that have enacted similar ordinances.

    Q: Can I advertise that I will not accept Section 8 applicants for my unit?

    A: It depends on the location of the rental unit.  Effective August 1, 2019, landlords with properties in the City of San Diego are prohibited from marketing or advertising a rental-unit indicating that they will decline a tenant based on their source of income. After August 1, 2019, if you violate this law, a tenant may file a lawsuit against you within one year of the discovery of the alleged violation. If the court finds that there was a violation prior to the tenancy or during the tenancy, the court can award up to three times the monthly rent that was advertised or in place as well as punitive damages, attorney’s fees and costs.  *This only applies to rental properties in the City of San Diego or cities that have enacted similar ordinances.

    Q: I am a landlord that owns residential rental properties in Poway, San Ysidro, and La Jolla. All of the tenants living in these unit have been living in the properties for more than 2 years and are on month- to-month agreements. What type of termination notice do I need to give my tenants?

    A: Tenants that live in a property for over a year are entitled to at least 60 days’ notice prior to termination of their tenancy.  In certain jurisdictions, tenants that have lived in a property for more than two years are also entitled to know the cause, or reason, that they are being terminated.  For example, the City of San Diego’s Tenant’s Right to Know Ordinance only allows a landlord to terminate a tenant that has lived in the property for more than two years for specific reasons set out by the ordinance.  For a full list of the causes, please see San Diego Municipal Code Section §98.0730.  Many communities in the City of San Diego are commonly mistaken as separate cities. You should always check with the City of San Diego website and/or an attorney to see if your property falls within the City of San Diego. Failure to list a proper cause on a 60-day notice will cause you to lose an eviction. For example, Poway is its own City within San Diego County but San Ysidro and La Jolla are communities in the City of San Diego and will require a specific cause on a 60-day notice to terminate a month-to-month tenancy of two or more years.

    Q: I am a landlord and my tenant has not paid their rent. I served the tenant a three-day notice to pay rent or quit on Friday. When does my notice expire?

    A: Effective September 1, 2019, the calculation of a three-day notice period for non-payment of rent has changed. Weekends and court holidays no longer count towards the notice period.  Under the new rule, if a three-day notice is served on a Friday, then the first day of the notice period is the following Monday because Saturday and Sunday do not count. Thus, the three-day notice will expire on Wednesday and you may proceed with the unlawful detainer on Thursday.

    Q: I filed an unlawful detainer (eviction) against one of my tenants. My tenant was personally served with the summons and complaint on Thursday. When is my tenant’s deadline to file a response with the court?

    A: Effective September 1, 2019, the calculation of a tenant’s deadline to respond has changed.  Weekends no longer count towards the response period, like court holidays.  If the tenant is served Thursday, then Friday, Monday, Tuesday, and Wednesday count towards the first through fourth days, unless one of those days is a court holiday. Thus, your tenant must respond to the lawsuit by Thursday.