Legal Q & A: My Tenant Claims He Can’t Pay Rent Because of COVID-19. What do I do?

Question: My tenant just told me that he was let go at work because of the Shelter-in-Place Order and he can’t pay rent for April. Is he allowed to do that? Do I just lose the rent?

Answer: This is about to become a common question, as many are affected by COVID-19 and the related Shelter-in-Place Order. This is perhaps the most rapidly that landlord-tenant law has changed, and there are overlapping (sometimes inconsistent) rules emerging at the local, state and federal levels. But at least for the moment, there is a clear path forward for this particular issue.

Mayor Breed issued an eviction moratorium Order, which currently runs from March 23, 2020 to April 22, 2020 (although it may be extended). For as long as it lasts, if a tenant’s rent comes due during that period, they have 30 days from the due date to notify you that they can’t pay, and that their inability to pay is because of COVID-19 related loss in income. (Keep in mind, this would come potentially after you serve a three-day notice to pay rent or quit. And, if you do, you now need to include Rent Board Form 1010, which explains the moratorium and qualified suspension of rent payments.

If your tenant provides this notice, they have an additional week to provide you with “objectively verifiable” support. If they do, their rent payment obligation during the Order is suspended. (The Order says it’s suspended for one month, but there are currently no consequences for further default.) Following expiration of the term of the Order (which, if extended, may cover multiple months’ worth of payments), the tenant has six months to come current.

Only if the tenant fails to notify you, provide objectively verifiable support, extend their repayment date, or come current at the end of that date, may you proceed to evict. Whether or not the City has the authority to do this, they appear to recognize their inability to discharge these rent obligations, although the Board of Supervisors is working on a resolution asking that Governor Newsom do so at the state level.

In addition to the above, Governor Newsom’s March 27, 2020 Executive Order extends the time for a tenant to respond to an unlawful detainer complaint for 60 days, if it is based on non-payment of rent (and the tenant similarly notifies the landlord and provides proof). Meanwhile, the federal CARES Act prevents the filing of any evictions for non-payment of rent for 120 days (currently expiring July 25, 2020) for residential rental property with a federally backed mortgage.

While more information would be required to answer your question completely, suffice it to say that you are currently owed the rent, and no current law at any level of government prevents non-eviction lawsuits to recover the rent. There is plenty here to support a binding agreement with your tenant to come current on rent as everyone returns to work.