As we have updated previously, at the inception of the COVID-19 closures, the California Courts issued an emergency order banning evictions in the entire state of California, in order to alleviate the effects of the massive lease defaults expected due to nonpayment of rent caused by the financial effects of the COVID-19 pandemic.  California Courts then voted on August 13 to end the eviction moratorium, effective September 1st.  But now, the California Legislature stepped in with AB 3088, signed on August 31st, which bans residential evictions for another 5 months.


In order to receive the benefits of AB 3088, tenants must provide to the landlord a written notice under penalty of perjury that the tenant has a financial hardship related to COVID-19.  Once timely provided, the tenant cannot be evicted for unpaid rent due for failing to pay all of the rent that was due between March and August of 2020, plus they cannot be evicted for rent due September 2020 through January 2021, provided they pay at least 25% of the rent due for this period.  The statement of hardship can be based on loss of income, increased work expenses, or an increase in health care, childcare and family care expenses caused by COVID-19.  AB 3088 applies to tenancies of apartments, single family homes, duplexes, mobile homes and accessory dwelling units.  But, it does not protect higher income tenants who earn $100,000/year or 130% of the area median income, without documentation supporting the tenant’s claim of hardship.

Unpaid rent is not forgiven by AB 3088 (or the prior Court orders), and unpaid rent can be collected as consumer debt in small claims court (or regular court) beginning March 1, 2021.  And, in the interim, evictions for reasons other than non-payment of rent or some non-COVID hardship reason can proceed.  October 5, 2020 is when courts can resume issuing summons in unlawful detainer actions and proceed with the eviction proceedings.


Prior to proceeding with a residential eviction, a landlord must now give notice to the tenant that includes a statutory explanation of tenants’ rights under AB 3088, as well as a hardship declaration form that is printed in the same language used in the lease.  The tenant will have 15 days to complete and send the declaration back to the landlord.

Non-residential evictions, evictions for a reason other than COVID-19 failure to pay rent, and evictions for rent defaults for rents due prior to March 2020, may proceed once the Courts open up the process.  But any landlord who self-evicts or locks out a tenant may be fined up to $2,500.  So, landlords are advised to follow the process and not self-help an eviction, lock out a tenant, throw out a tenant’s personal items, shut off utilities, or take other punitive action against a tenant.

County and City Eviction Laws

If a county or city retains moratoriums on evictions, AB 3088 does not remove them, but any new county or city eviction moratoriums passed after August 19, 2020 cannot take effect until February 1, 2021 and ordinances that expire prior to February 1 cannot be extended until that date.  And, if any county or city moratoriums establish a repayment period, repayments must begin no later than March 1, 2021.

Commercial Evictions

AB 3088 does not apply to commercial evictions.  So, commercial evictions can proceed as of today; however again, county and city moratoriums extend that date.  Los Angeles enacted an eviction moratorium that does not expire until three months after the lifting of the local COVID-19 emergency period and prohibits evictions for small business commercial tenants unable to pay rent due to COVID-19.  The Cities of Oakland, San Francisco and San Diego, as well as the counties of Alameda, Santa Clara, Los Angeles and San Diego have ordinances with protections and termination dates that vary.

Courts have not dropped out of the discussion either.  Local courts issued rules (e.g. Alameda County courts) at the beginning of COVID-19 that prohibit all unlawful detainer cases, including those involving commercial tenants.  So, it literally takes counsel to piece through the jurisdictions, moratoriums, rules and deadlines to determine the rights to proceed.

Federal Government

On September 4th, the newly issued federal moratorium by Centers for Disease Control and Prevention (CDC) on evictions takes effect.  It purportedly is a moratorium to prevent the further spread of COVID-19:  “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.”  Residential tenants suffering financial impact by COVID-19 and risk becoming homeless cannot be evicted.  The federal moratorium does not apply to evictions based on criminal activity, threaten the health or safety of other residents, damage to property, or violation of other terms the lease.  Under this CDC order rent is not forgiven and landlords apparently can charge late fees.


The CDC moratorium is broader than the previous CARES Act moratorium.  In order to certify applicability, a tenant must submit a signed statement to the landlord.[1]  The tenant statement must be under oath and certify:


  • The tenant used their best efforts to obtain available government assistance for rent;
  • The tenant was eligible to receive an Economic Impact Payment (stimulus check) under the CARES Act, or has an annual income of no more than $99,000 for an individual, or $198,000 for a family;
  • The tenant is not able to pay the full rent due because of substantial loss of income, wages, or hours, or because of extraordinary out-of-pocket medical expenses (unreimbursed medical expenses exceeding 7.5% of AGI for the year);
  • The tenant is using best efforts to make partial rent payments; and
  • The tenant has no other available housing options and if evicted, would need to move into a new residence shared by other people who live in close quarters, or would have to move into a homeless shelter.

The tenant must affirm their understanding that they will still have to pay rent and fees, and otherwise comply with the terms of the lease.  And, the landlord may require that the outstanding rent be paid in full after the CDC moratorium expires on December 31, 2020.

That likely is as clear as mud.  For more information feel free to contact Dawn:



Attorneys admitted to practice in

California, New York, Colorado, Texas, Oregon and Hawaii


Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  While intended as informational and educational, it is considered advertising under various applicable laws of some states, and as such, Epps & Coulson, LLP encourages you to call us to discuss these matters as they apply to you or your business.