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Emergency Rule Suspending Evictions Ripe for Abuse, Property Rights Advocate Contends

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By Jorge Casuso

Editor's note: This article was updated to include comments from the Legal Aid Foundation of Los Angeles.

May 19, 2020 -- A major property rights advocacy firm is seeking the repeal of an emergency rule suspending evictions in California, claiming it "creates the perverse incentive" for all tenants to refuse to pay rent.

The Pacific Legal Foundation (PLF), one of the nation's most powerful public interest law firms, contends that the rule issued on April 6 by the Judicial Council of California is ripe for abuse.

The order issued by the the rule-making arm of the California court system is meant to protect tenants during the coronavirus emergency by barring landlord's from initiating unlawful detainer actions.

"The rule effectively suspends actions for eviction for all tenants throughout the state, whether they are able to pay their rent or not," PLF's litigation director Larry Salzman wrote in a letter sent to the Council last Wednesday.

Landlords, Salzman wrote, understand that "many people will be unable to pay rent because they have lost jobs due to the shut-down orders."

But they worry that the rule "creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis."

Since the rule went into effect, PLF says it has spoken to California landlords who reported "a decline in rental receipts by 50 percent or more."

"Faced with no possibility of being evicted, many (tenants) have simply stopped paying their rent," Salzman wrote.

Lanlords' concerns are heightened by “rent strike” movements and "other efforts to encourage tenants to stop paying their rent or to legally bar landlords from collecting rent," Salzman said.

Kevin Mitchell, managing attorney for the Legal Aid Foundation of Los Angeles, said PLF's contention that many tenants are not paying rent is "factually unsupported."

He points to a survey by CBRE, a major real estate services firm, that found that 4 percent of tenants in Los Angeles and Orange Counties paid no rent in April.

Ninety percent paid the rent in full and 6 percent made a partial payment, according to the survey.

Mitchell said landlords can file unlawful detainer cases that "will be decided by the courts in due course, in protection of the rights of all parties."

But he added that "the potential and temporary loss of investment property income should not be placed above the rights and safety of individual tenants."

Emergency Rule 1 "prohibits courts from issuing summons on an unlawful detainer complaint until 90 days after the state of emergency related to COVID-19 is lifted.

"The only exception is for an unlawful detainer action necessary to protect public health and safety."

The PLF argues the rule is not only bad policy, it violates the "principles of constitutional government and the rule of law."

The firm contends the Judicial Council lacks the authority under the California Constitution and basic principles of separation of powers "to promulgate Emergency Rule 1."

It also contends that the governor lacked the authority to issue an order to "suspend any statutes that impede the Judicial Council’s issuance of emergency rules."

The emergency rule, Salzman wrote, "threatens to undermine the Judicial Council and the Governor’s stated goals by threatening the rental housing industry in all of California."

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