It used to be simple. If a tenant’s lease agreement expired or ended by valid termination, then the tenant could be evicted.1Code Civ. Proc., § 1161, subd. (1), as amended by AB 3088. Even after the COVID-19 Tenant Relief Act2The COVID-19 Tenant Relief Act is codified in California Code of Civil Procedure sections 1179.01, et. seq., the Code of Civil Procedure still defines a tenant who “continues in possession . . . of the property . . . after the expiration of the term for which it is let to the tenant . . .” is “guilty of unlawful detainer.”3Code Civ. Proc., § 1161, as amended by AB 3088. But, the relief Act modifies this rule until February 1, 2021.4Code Civ. Proc., § 1179.03.5, subd. (a).
Disclaimer: I am not an attorney. I am a law student. On Thursdays, I work in an unlawful detainer (eviction) clinic under the supervision of a licensed attorney. On this page, I will share information about the code sections. If you are going to evict a tenant, I encourage you to talk to an attorney to get legal advice regarding your specific situation and facts. To support all statements of information, I will provide footnotes where you can find support in the codes.
Section 1179.03.5 of the Code of Civil Procedure restricts courts in declaring a tenant “guilty of unlawful detainer.” Until February 1, 2021, “a court may not find a tenant guilty of unlawful detainer unless it finds one of the following [three situations] apply.”5Code Civ. Proc., § 1179.03.5, subd. (a).
Situation 1: The cause of unlawful detainer existed prior to March 1, 2020
If the cause existed prior to March 1, 2020, then the unlawful detainer action may continue and the judge may find a tenant guilty of unlawful detainer. 7Code Civ. Proc., § 1179.03.5. Where a lease agreement ended prior to March 1, 2020, the landlord has a duty to file an unlawful detainer action in a timely manner. The court did not institute a stay on evictions until after the stay in place order on March 16. Given this, the landlord will need to explain to the judge why he or she was unable to file an unlawful detainer action for the end of the contract prior to the stays on evictions being enacted. Showing evidence of an attempted eviction that was rejected by the court may be helpful. Unless the contract expired before March 1, this code section paragraph does not provide any remedy to the person looking to evict due to the end of the contract arriving.
Situation 2: The tenant fails to provide the landlord a declaration of COVID-19-related financial distress and owes back-rent
When the notice given to the tenant identifies unpaid rent, the tenant must have an opportunity to notify the landlord that some or all of the missing rent is due to a COVID-19 related hardship.8Code Civ. Proc., § 1179.03. When the tenant does not make any such claim, then the court may find the tenant guilty of unlawful detainer.9Code Civ. Proc., § 1179.03.5, subd. (b).
Where the cause of action is the expiration or lawful termination of a lease, then the issue is not regarding back rent, so this code section paragraph does not provide a means of evicting a tenant who remains after the end of the contract.
Situation 3: Lease agreement terminations
Normally, just cause must be given if the tenant has remained for 12-months or more.10Civ. Code, § 1946.2, subd. (a), as amended by AB3088. When the tenant has been renting for less than 12-months, just cause is not required. 11Civ. Code, § 1946.2, subd. (a), as amended by AB3088. However, until February 1, 2021, unless the landlord has sold the property to a person who wishes to live there, cause must be given in order for a judge to have permission to find the tenant guilty.12Code Civ. Proc., § 1179.03.5, subd. (a)(3).
Terminations for at-fault causes
All “at-fault” causes remain in place.13Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A). Any tenant who violates an “at-fault” cause may be found guilty of unlawful detainer.14Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A). However, the “at-fault” cause for default in payment of rent is now restricted to cases where the nonpayment is unrelated to COVID-19 related financial distress.15Code Civ. Proc., § 1179.03.5, subd. (a)(2).
Common at-fault causes include:
- non-payment of rent16Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
- breach of contract17Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
- causing nuisance18Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
- refusal to sign a lease renewal19Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
- criminal activity20Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
- subletting21Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088., and
- refusal to allow landlord access22Civ. Code, § 1946.2, subd. (b)(1), as amended by AB3088.,
The tenant had a written lease that terminated on or after January 1, 2020, and after a written request or demand from the owner, the tenant has refused to execute a written extension or renewal of the lease for an additional term of similar duration with similar provisions, provided that those terms do not violate this section or any other provision of law. (Civ. Code, § 1946.2, subd. (b)(1)(E), as amended by AB3088.)
The lease agreement must have been in writing. The owner must demand in writing that the tenant sign a written extension or renewal with similar term and similar provisions. And, the tenant must refuse to sign the extension and renewal.
Note that if “at-fault” cause is needed to find a tenant guilty of unlawful detainer, this implies that until February 1, 2021, any landlord who wishes to evict a tenant who no longer has a lease, should first attempt to get the tenant to sign a renewal. Only after the tenant refuses to renew can the landlord claim an “at-fault” cause related to an expired lease.
Terminations for no-fault causes
Landlords may still evict for no-fault causes.24Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A)(ii) Only one no-fault cause is restricted under the current law, and that is the reason of “landlord wants to renovate or demolish the unit.”25Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A)(ii)
Common no-fault reasons include:
- Landlord (or landlord’s family) intends to occupy the unit 26Civ. Code, § 1946.2, subd. (b)(2), as amended by AB3088.
- Landlord is choosing to no longer be a landlord (removing the unit from the market)27Civ. Code, § 1946.2, subd. (b)(2), as amended by AB3088.
When the no-fault cause is remodeling, the landlord may still claim it, but only if the purpose of remodeling is to cure a uninhabitability issue found in Section 1941.1 of the California Civil Code, or an problem identified in Health and Safety Code section 17920.10.28Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A)(ii)
Non of the no-fault causes supports eviction when the lease has expired or otherwise been lawfully terminated and the tenant remains in possession.
Sale of the property
When the landlord has entered escrow for the sale of the property, and the new owner wishes to occupy the property, the landlord may evict the current tenant.29Code Civ. Proc., § 1179.03.5, subd. (a)(3)(A)(iii) To successfully evict under this term, the landlord must be very careful to comply with all procedures outlined in paragraph (8) of subdivision (e) in Section 1946.2 of the Civil Code.
This condition does not help the landlord when the tenant remains in possession after the natural expiration of a lease agreement or the lawful termination of a lease agreement.
Although the definition of “unlawful detainer” still defines a tenant who remains in possession after the expiration or termination of a lease as being “guilty of unlawful detainer,” the restrictions under the COVID-19 Tenant Relief Act of 2020 prohibit any judge from issuing such a finding until February 1, 2021.
If you have a tenant who has exceeded their welcome, you may find some luck in offering in writing to extend the lease under the same terms for a continued duration, and if the tenant refuses to sign the written extension, then you may evict.
Unfortunately, this also means that you must first offer the tenant an extension, which may be contrary to your wishes. When the tenant is a bad tenant, you will want to be rid of them. Look at the “at-fault” causes and see if you can claim nuisance, waste, or some other reason that is not based on nonpayment of rent.