LA County Eviction Moratorium – Non Payment of Rent

Since its inception in March 2020 during the pandemic, the eviction moratorium in L.A. County has undergone several changes through multiple amendments. Furthermore, the COVID-19 Tenant Protection Act (CTRA), a state law, had preempted several of its provisions. Although most of CTRA’s preemption provisions relating to local eviction moratoria expired on June 30, 2022, as of July 1, 2022, the County’s eviction moratorium is now applicable countywide. This article only covers the provisions of the moratorium that are in effect as of July 1, 2022, and does not discuss expired provisions that applied to different properties during different periods of time before July 1, 2022. 

A federal district court issued an injunction on October 19, 2022, which prohibited the County from enforcing the nonpayment provisions of the moratorium due to deficiencies in the moratorium’s language, but the injunction was not effective until December 1, 2022. To give the County an opportunity to address the deficiencies in the moratorium, the judge delayed the injunction’s effective date. On November 15, 2022, the County adopted amendments to the moratorium to rectify the issues identified in the court’s ruling. This paper has been updated to reflect these amendments. Whether the County’s changes are sufficient to fully nullify the injunction remains a legal question with no clear answer at this point. Until further clarification is available, landlords should seek the advice of an experienced landlord-tenant attorney before deviating from compliance with the amended non-payment provisions of the County’s moratorium. Landlords must still comply with the other restrictions outlined in the moratorium, as discussed in more detail below, as well as any applicable city moratoria that are not affected by the court’s ruling.

As of January 24, 2023, the County has amended the moratorium, extending its termination date by two additional months until March 31, 2023. The moratorium was previously set to expire on January 31, 2023, and before that, on December 31, 2022. This extension of the moratorium also extends the repayment period for rent deferred during the moratorium and the rent freeze for covered properties by two additional months. This paper has been revised to reflect these changes.

July 2022 Important Changes

Expiration

Unless explicitly stated otherwise, all of the eviction protections discussed in this paper are effective from July 1, 2022, until March 31, 2023. However, certain protections, such as those for no-fault and certain at-fault evictions, were in effect prior to July 2022. It is worth noting that even though this paper only discusses the protections effective from July 1, 2022, these protections did not necessarily commence on that date.

Who does this apply to?

Starting July 1, 2022, the County’s eviction moratorium applies countywide, encompassing both unincorporated areas and incorporated cities within the County. In cases where a rental unit is located within a city that has its own eviction moratorium, the tenant can benefit from the most protective components of both the city and County moratoria.

Non Payment of Rent in LA County

The scope of the Non-Payment Protections mandates that eviction cannot be enforced due to non-payment of rent, late charges, or any other accrued fees if the amount comes due on or after July 1, 2022, and only if the following three conditions are fulfilled:

• The tenant can prove an incapacity to pay rent and/or related charges due to financial impacts related to COVID-19, the state of emergency concerning COVID-19, or due to following government-recommended COVID-19 precautions;
• The tenant’s household income should be at or below 80% of the area median income (AMI); and
• The tenant must provide the landlord with notice of both:
  • Their income eligibility; and
  • Their qualifying COVID-19 hardship within seven days of rent coming due, except for extraordinary circumstances.

What is considered “Inability to Pay”

The resident is obligated to demonstrate that they have suffered “financial impacts related to COVID-19” under the moratorium. The County revised the definition of “financial impacts” on November 15, 2022. Prior to the amendments, “financial impacts” was described as a significant loss of household income resulting from business closures, reduction of compensable work hours or wages, job losses, or extraordinary medical expenses. The revised definition of “financial impacts” now includes the following:

• The updated definition of “financial impacts” under the moratorium, effective as of November 15, 2022, includes a substantial loss of household income caused by the COVID-19 pandemic. For the purposes of this definition, a “substantial loss” means a decrease of at least 10% in the tenant’s average monthly household income during the 12-month period preceding March 1, 2020. This can be verified through pay stubs, payment receipts, letters from employers, or other forms of evidence.
• The amended definition of “financial impacts” under the County’s moratorium includes increased or extraordinary expenses related to food, fuel, child care, and/or unreimbursed medical expenses that exceed 7.5% of the tenant’s average monthly household income for the 12-month period immediately preceding March 1, 2020.

A financial impact is considered “related to COVID-19” if it is caused by any of the following: (1) caring for oneself or a household/family member with a suspected or confirmed case of COVID-19; (2) a decrease in income due to COVID-19-related business closures, layoffs, or other employer impacts; (3) adherence to the County Health Officer’s recommendation to stay home, self-quarantine, or avoid gathering during the state of emergency; (4) extraordinary out-of-pocket medical expenses related to COVID-19 diagnosis, testing, and treatment; or (5) childcare needs arising from COVID-19-related school closures.

When must the tenant notify the landlord?

The resident must give notice of their inability to pay for a qualifying reason and their income eligibility (household income at or below 80% AMI) within seven days after the rent due date, unless there are “extenuating circumstances” that prevent them from doing so. The County has published a self-certification form as of July 2022 that includes the following applicable income limits:

SIZE	1	2	3	4	5	6	7	8
80% AMI	66,750	76,250	85,800	95,300	102,950	110,550	118,200	125,800

How should the tenant notify the landlord?

The November 15, 2022 amendments to the moratorium require residents to provide their landlords with a self-certification of their COVID-19-related inability to pay and income eligibility. Although the county has provided a form, it is not mandatory for residents to use it. The previous requirement that landlords must accept a resident’s self-certification has been removed due to being unclear and unenforceable. The amended moratorium clarifies that self-certifications can be challenged in court. However, landlords should exercise caution in pursuing an eviction against a resident who has provided a self-certification because doing so may result in civil and/or criminal liability unless the landlord has reasonable cause to believe that the resident is not being truthful.

If an eviction attempt is made

If a resident meets the three criteria described above, they have an affirmative defense against eviction. The definition of “evict or attempt to evict” is broad and includes actions such as serving a notice to pay rent or quit, filing an unlawful detainer summons or complaint, or taking any other action that could be construed as an attempt to terminate the tenancy. Essentially, the landlord is prohibited from taking any action that initiates or furthers an eviction if they have received the tenant’s timely notice of inability to pay and income eligibility. This protection is comprehensive and limits the landlord’s ability to evict a tenant who meets the criteria.

For instance, if a tenant provides notice to the landlord on the day rent is due, stating that they are unable to pay rent due to a COVID-19 related reason and that they meet the income eligibility criteria under the moratorium, the landlord cannot serve a three-day notice to pay rent or quit for the unpaid rent. On the other hand, if the tenant fails to pay rent by the fifth of the month and the landlord has not received notice, the landlord can serve a three-day notice to pay rent or quit. However, if the tenant provides notice to the landlord of their inability to pay and income eligibility on the seventh, the landlord cannot proceed with the previously served three-day notice, even though serving the notice itself would not be a violation of the county eviction moratorium.

When does the tenant repay overdue rent?

The eviction moratorium allows tenants twelve months after the moratorium period ends to repay deferred rent, which means the current repayment deadline is March 31, 2024. However, if a tenant fails to repay by this deadline, it’s unlikely that eviction can be enforced. The moratorium allows a tenant to assert an affirmative defense against an unlawful detainer action based on their inability to pay back rent that was due during the moratorium. The prohibition was modified with the November 15, 2022 amendments, and it appears to be narrowed. The prohibition only applies to tenants who are unable, not unwilling, to repay the rent. Although the court’s ultimate interpretation of this defense is yet to be determined, tenants who defer rent between July 1, 2022, and March 31, 2023, under the moratorium, and qualify for its protection, can never be evicted for failing to repay the deferred amounts, even after the moratorium ends and the repayment period has expired, as long as they assert and prove their affirmative defense. However, the broadness or narrowness of this defense depends on how the court interprets the language of the moratorium that provides for this permanent protection from eviction.

While the affirmative defense provides protection to qualified tenants against eviction for failure to repay deferred rent, landlords are not strictly prohibited from pursuing eviction for such nonpayment. However, given the availability of the affirmative defense and the potential for civil and/or criminal liability, landlords should exercise caution before doing so. If a landlord does decide to pursue eviction for deferred rent, the most recent amendment to the moratorium mandates that the tenant must first be served with a 30-day notice to cure or quit, rather than the standard 3-day notice.