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.