Emergency Protections for Tenants During COVID-19

As MTC and ABAG explore our housing portfolio through emergent activities like the Bay Area Housing Finance Authority (BAHFA) and a new regional housing technical assistance program, conversations among our Commissioners and Board members have consistently highlighted the importance of a multifaceted approach that includes all “3 Ps”:  production of new housing, preservation of existing homes, and protection of current tenants.  The current public health crisis caused by COVID-19 and the response by government at all levels has highlighted the “protection” component of the 3 Ps framework, as some residents struggle to remain in their homes in compliance with shelter in place orders.

On April 1, rent came due for hundreds of thousands of Bay Area tenants who have suddenly lost income after being laid off, furloughed, or lost hours because of COVID-19.  A complex, overlapping patchwork of responses at the federal, state, and local levels provides some relief to help keep these families in their homes and therefore capable of complying with shelter in place orders. 

Here we provide an overview of recently enacted emergency protections for Bay Area renters as information and potential groundwork for continuing discussions about the regional agencies’ role in responding to the Bay Area’s evolving housing challenges.  

Who is protected?

Emergency rules enacted by Governor Newsom provide baseline protections to all tenants in California.  In the Bay Area, some tenants have additional protections enacted by local governments.  If a tenant lives in a city or county with stronger local protections, the local protections will apply.  Residents should check with their city and county governments to determine whether a local policy has been adopted.  Additionally, tenants in federally-subsidized housing or homes with federally-backed mortgages have some protections offered by emergency federal regulations and the recently adopted COVID-19 emergency funding package (the “CARES Act”).  

What are the baseline state protections?

On March 27,  Governor Newsom issued an Executive Order to delay eviction proceedings for tenants who cannot pay rent due to COVID-related loss of income, so long as certain conditions are met.  Tenants must notify their landlords of their inability to pay within seven days of the rent being due, and tenants must retain documentation to prove that nonpayment has been caused by specified COVID-19 impacts.  The Executive Order will remain in effect through May 31, 2020.  Tenants must still respond to eviction filings in court, and are still responsible for paying all back rent.  

Which Bay Area jurisdictions have enacted stronger local protections?

More than a dozen Bay Area jurisdictions have already adopted local eviction protections in the wake of the coronavirus pandemic.  Notably, several counties have employed special emergency powers to adopt policies that apply within incorporated cities and towns as well as unincorporated areas of the county.  As such, all tenants in the following counties have some local protections:

• Alameda
• Marin
• San Francisco
• San Mateo
• Santa Clara
• Sonoma

A handful of cities have also adopted local policies, including Oakland, San Jose, Palo Alto, Mountain View, Concord, Vallejo, and Benicia.  If a tenant lives in a city that has both county and city-level protections, the most protective policy will apply.  Tenants are encouraged to check with their city and county governments regularly as the situation is evolving rapidly and new policies may be proposed and existing policies may be amended in the coming weeks.

What types of protections do the local policies include?

There is a great deal of variation in local policies. It is critical that tenants review the details of any policy in their city or county.  Some key features of the local policies include:

• Types of Prohibited Evictions.  Some local policies, like in Sonoma County, focus on prohibiting evictions for nonpayment of rent when a tenant has lost income due to COVID-19.  Exactly what counts as a “COVID-related” loss of income varies depending on the jurisdiction.  Other policies, like in San Mateo County, also prohibit many “no fault” evictions.  Still others, like the policy in Oakland, ban nearly all evictions except those that are necessary to protect health and safety.  In all local policies, a key difference from the Governor’s Executive Order is that landlords may not pursue the prohibited evictions in court.
• Notice and Documentation Requirements.  When a tenant cannot pay rent due to a COVID-19 reason, generally they must notify the landlord and retain documentation to verify the loss of income.  How much notice tenants must provide (e.g., within 14 days of rent being due, anytime prior to the filing of an eviction lawsuit, etc.) and what type of documentation is valid may vary across jurisdictions.   
• Prohibited Late Fees.  Some local policies prohibit landlords from charging late fees if a tenant misses a rent payment for COVID-related reasons.
• Delayed Payment of Back Rent.  All local policies in the Bay Area hold that tenants are still ultimately responsible for rent payments.  Some policies specify a delay period (e.g., 180 days after the State of Emergency ends) during which tenants cannot be evicted for COVID-related nonpayment.  Oakland’s policy prohibits evictions at any point for rent that was not paid during the State of Emergency but permits landlords to recover money through standard civil collection procedures.  

Again, because of the differences between local policies, tenants are strongly encouraged to review the policies that apply in their city or county, and to seek legal assistance if necessary.

Are there financial resources for tenants who cannot afford rent due to COVID-19?

Even before COVID-19, there were a variety of rental assistance programs offered by counties, cities, and nonprofits.  Some local governments, like Marin and San Mateo Counties, have increased funding for rental assistance programs to help tenants who lost income specifically because of COVID-19.  Since tenants are still required to pay back rent under all of the existing policies, rental assistance programs can play a critical role in preventing displacement of families even after the State of Emergency has ended.  Tenants should contact their city or county housing departments for lists of available rental assistance programs.

Are there other resources for tenants, including where to get help with an eviction?

Nonprofit legal aid agencies provide free legal assistance to lower-income tenants, and many have created FAQs and other fact sheets that provide details on local protections.  In San Francisco, all tenants may be eligible for free eviction defense services regardless of income through the Prop F “right to counsel” program.  Renters can contact their local legal aid office or local tenant organization for individual assistance.  Also, some industry and advocacy organizations have created COVID-specific resource pages.