Executive Order No. N-37-20 has two basic provisions that will remain in effect through May 31, 2020. The first concerns the deadline for responding to an eviction lawsuit based on nonpayment of rent for a residential tenant who is impacted by COVID-19. Now, instead of the 5-day deadline imposed by statute, this order gives a qualified tenant 65 days to respond to the lawsuit if the following three requirements are satisfied:
1. Prior to March 27, 2020, the tenant had paid the landlord all rent that was due.
2. The tenant notifies the landlord in writing before rent is due, or within 7 days of the due date, that the tenant needs to delay all or some payment of rent due to reasons related to COVID-19. Those reasons can include, but are not limited to:
a. The tenant could not work because the tenant was sick with a suspected or confirmed case of COVID-19, or had to care for a household or family member who was sick with a suspected or confirmed case of COVID-19.
b. The tenant was laid-off, lost work hours, or had reduced income because of COVID-19, the state of emergency, or related government response.
c. The tenant missed work to care for a child whose school was closed in response to COVID-19.
3. The tenant retains verifiable documentation (termination notices, payroll checks, pay stubs, bank statements, medical bills, etc.) that supports the tenant’s assertion of an inability to pay. This documentation must be provided to the landlord no later than the time when the back-due rent is paid.
The second part of Executive Order No. N-37-20 prohibits the enforcement of a court order to evict a tenant from a residence or dwelling for nonpayment of rent. This prohibition only applies with respect to tenants who satisfy the three requirements listed above. Further, the Executive Order does not relieve a tenant from liability for unpaid rent.
The eviction ordinances adopted by cities and counties prior to the latest Governor order generally prevented landlords from evicting tenants or instituting eviction lawsuits called unlawful detainer actions during the local emergency. Under the Governor’s order, eviction notices can be served and lawsuits can be filed but the defendant is given 60 more days to respond to an eviction lawsuit which is intended to prevent the lawsuit from being considered and an order issued by a judge during the COVID-19 crisis. The Governor’s order also prevents an eviction order issued after March 27 from being enforced until June 1. 2020. Lastly, some of the local eviction bans applied to both residential and commercial properties. The Governor’s order does not apply to commercial properties.
The Governor’s order supersedes his prior order on evictions only to the extent it is inconsistent with the new one. This language suggests that a city could adopt a more stringent eviction ban than the most recent Governor’s order since the authorization to adopt such regulations for nonpayment of rent related to the COVID-19 emergency remains in place. However, it is unclear whether a local ban that prohibits commercial evictions would be considered inconsistent with the Governor’s most recent order that only applies to residential tenants. Also, it is unclear whether the Governor’s action authorizes existing local eviction regulations to remain in place but would not allow new ones to be adopted that are stricter than the Governor’s order. We are waiting to see if the Governor provides more clarity on this point.