Struggling Landlords Need Assistance, Not Eviction Powers

The National Association of Realtors (NAR) has been pushing for an end to the eviction moratoriums, citing the struggles of landlords who are losing profits without either getting payments or having any occupancies to fill. This isn’t an unexpected position, since 38% of NAR members are landlords, but it’s clearly in their personal interest and not the interest of the majority. Beyond this, only 1.8% of landlords are actually delinquent in their mortgage payments, so the majority of them aren’t truly struggling too much. Furthermore, there’s actually a better solution even for the small percentage of landlords that are having issues.

Ending the eviction moratorium is not going to do anything to enable people to afford rent payments. It could help landlords slightly by reducing their upkeep costs, but it’s not likely to bring in new renters. Most units would remain vacant, merely exacerbating the homelessness issue in the US and weakening efforts to curb the ongoing pandemic. California’s SB 91 is a good example of a better solution: It keeps tenant protections in place while still giving landlords 80% of the rent payments they would receive, in exchange for waiving 20% of the payment. This is a better deal for the landlords than evicting their tenants if the unit is simply going to remain vacant. More efforts like this one are going to be the solution to this crisis, not ending eviction moratoriums.

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Foreclosure and eviction moratorium extended

As a result of the COVID-19 outbreak, the Federal Housing Finance Agency (FHFA), which regulates Fannie Mae and Freddie Mac (the Enterprises), had instituted a moratorium on foreclosures and evictions for Enterprise-backed single-family mortgages. The moratorium was scheduled to end on June 30th, but on June 17th, the FHFA announced that the date will be extended to August 31st. The FHFA plans to continue to monitor the situation and make further adjustments as needed.

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ADUs and Rent Control

We had a call recently asking how California’s new statewide rent cap laws impact homeowners who are supplementing their income by renting out an Accessory Dwelling Unit (ADU). The primary concern was, “Is the owner forced to keep a tenant or pay relocation if they decide to quit renting?”

The question stems from what is called the “just cause requirements” of the new rent control law. Our client was concerned about a decision to evict the current tenant and allow a grandchild to occupy the ADU while attending school locally. If “just cause” applied, it would require they provide relocation assistance to their current tenant.

Renting a part of your home, whether a single room or an entire “guest cottage” may be excluded from the law.

To answer the question, we reviewed the rent cap legislation with an eye to what terms would control should a homeowner need to evict tenants from an ADU.

Applicability of “just cause” relocation assistance, and the rent cap of 5% plus the local Consumer Price Index (CPI) both rely on the same tests.

The first of those tests is the type of property. Multi-family dwellings, i.e., everything from apartment buildings down to duplexes are included in the scope of the law. SFRs though, are excluded, and most importantly, an SFR with an ADU qualifies as an SFR and may be excluded if the second test is also met.

The second test relates to the owner of the property. The following owner types are always included within the scope of the law:
A real estate investment trust, as defined in Section 856 of the Internal Revenue Code.
A corporation.
A limited liability company in which at least one member is a corporation.

The bottom line is that “mom and pop” operations do not fall under the rent cap or the just cause eviction sections of the new laws. There is a caveat! You must notify your tenants!

At the time the lease is signed, tenants should be provided written notice that the residential real property is exempt from this section using the following statement: “This property is not subject to the rent limits imposed by Section 1947.12 of the Civil Code and is not subject to the just cause requirements of Section 1946.2 of the Civil Code. This property meets the requirements of Sections 1947.12 (c)(5) and 1946.2 (e)(7) of the Civil Code and the owner is not any of the following: (1) a real estate investment trust, as defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least one member is a corporation.”

Here is a link to the legislation in question: