Have you been sued for pandemic rent debt? Here’s what you need to know
A month after COVID-related eviction protections ended, tenants’ lawyers say San Francisco is on the verge of a wave of lawsuits for rent collection.
“We call it the tsunami,” said Devin Fathi, non-profit housing lawyer Legal Open Door. Its inevitability is “sort of universally accepted at this point,” he said.
Beginning November 1, landlords seeking to recover unpaid rents in the event of a pandemic can sue tenants in Civil Court or Small Claims Court. Unlike tenants facing eviction, those fighting against rent debt suits are not allowed to be represented by a lawyer in small claims court. Neither do the owners.
Fathi and other tenant lawyers explained how to approach small claims court, as well as the pitfalls of debt collection.
Go to court
To avoid eviction for non-payment, tenants who have experienced hardship related to COVID-19 must have paid their landlords at least 25% of the rent owed in the previous 13 months by October 1.
They might not be evicted for the remaining rent debt for that period, or for any rent owed from March to August 2020 – but their landlords can start claiming that money in small claims court in November.
A landlord who takes their tenant to small claims court must notify them at least 15 days before the scheduled hearing if the recipient lives in San Francisco. If they live out of town, perhaps because they are no longer tenants of the landlord, they should be notified at least 20 days before the hearing.
But cases may take longer to be judged.
“If in reality there are a lot of people trying to take on small claims and collect that rent, then we might see the dates push back,” Fathi said, perhaps by several months.
In other types of lawsuits, defendants must respond to the summons with documents. In small claims cases, all they need to do is come to the hearing.
That alone can be frightening for non-citizens who fear the judge will find out they are in the country illegally and deport them, Fathi said. During the pandemic, some undocumented migrants took on debt to pay their rent and bypass the courtroom altogether, as the public press recently reported.
But landlords who attempt to highlight a tenant’s citizenship status “are going to be reprimanded by the court,” Fathi said. This is especially true in San Francisco, a self-proclaimed “sanctuary city”Where government employees are generally prohibited from assisting Immigration and Customs Enforcement in enforcing federal immigration law.
The judge can reduce the rent debt
Once in court, the landlord and tenant compete to convince the judge of the amount of rent owed.
The tenant may be able to reduce the debt by proving that the landlord provided accommodation that did not meet the standards. habitability standards such as adequate and safe heating, weather protection, functional plumbing or electrical equipment, or freedom from pests. If the tenant made purchases to address issues caused by the landlord’s inaction, such as mousetraps for a persistent rodent infestation, the judge could deduct those expenses from the rent debt. The judge could do the same if the tenant did not have access to the amenities promised by the lease, such as a courtyard that remained locked.
Calculating how much debt to subtract is a subjective process, Fathi said. He described a hypothetical situation.
“I have a pretty bad presence of mold in my kitchen and, per month that I have lived with it, it has had a 20% impact on my enjoyment of using my unit. So you then calculate 20% of the rent to be deducted.
If possible, tenants should provide proof that their landlords were aware of these issues but did not resolve them quickly, Fathi said. He added that he has encountered tenants who have remained silent rather than complaining.
“They don’t want to disturb their landlords” and create friction, Fathi said, especially if they couldn’t afford rent during the pandemic.
Tenants can also reduce their debts by showing that their landlord previously illegally increased their rent, said Tom Drohan, general counsel at Legal assistance for the elderly. For example, the owner of a rental controlled dwelling may have increased the rent beyond the authorized annual amount. Money the tenant paid over the legal limit “will be credited to you,” Drohan said.
And the judge can reduce the amount of the debt if the landlord has not applied for financial assistance under the government’s rent assistance program.
“Unfortunately, the key word here is ‘may’,” said Ora Prochovnick, director of litigation and policy at the Eviction Defense Collaborative, which coordinates city sponsored legal services for tenants threatened with eviction.
“It is discretionary and not mandatory that the judgment be so reduced,” said Prochovnick, adding that Michelle Tong, who would hear small claims cases in San Francisco, is “a good judge.”
If the owner wins, debt collection can be difficult
If an owner wins, he has 10 years to collect the debt and may subsequently renew this period. They or a collection company will attempt to claim the tenant’s money by intercepting or seizing wages or drawing from their bank account. Corn they can’t take it all.
When entering wages, each week, the collector must take the lesser of the two:
- 25% of the tenant’s income, after legal deductions.
- 50% of what exceeds the local minimum wage, full time. In San Francisco that’s $ 652.80 per week, which means that if the tenant made $ 700, the collector could take half of the difference between that amount and the minimum wage, which is $ 23.60.
Certain types of income are prohibited, including Social Security and “any kind of public benefit, state or federal,” said Kari Rudd, senior counsel for the consumer protection unit at Bay Area Legal Aid.
To prevent this income from being accidentally seized, people should deposit it directly into a bank account and refrain from transferring it to a second account where its public origin would be less obvious, Rudd said.
Debt collector can’t reduce a California resident’s bank balance below a standard threshold of about $ 1,800. The debtor can ask for a higher threshold if he needs more money to cover his needs.
When the debt collector provides a notice that they will withdraw money from the salary or from an account, the tenant can make a “waiver request” as to why that money should not be touched. The tenant must file the claim within 15 days of receiving the notice in order to protect their bank account, Rudd said, and there is no time limit to protect wages.
Avoiding court with a repayment plan is risky
Landlords and tenants could try to get around the small claims process by signing new leases, setting higher rents that would pay off the debt over time.
“It sounds like a bad idea to me,” Rudd said, adding that people should take this approach with caution.
Tenants cannot be evicted for the COVID-19 rental debt that landlords can apply to in small claims court, but they can be evicted for breaking a new lease – for example, if they are not able to pay the new rent.
Renters can learn more about their legal rights by attending Bay Area Legal Aid’s free monthly clinic for people who have accumulated rent debt in San Francisco due to hardship with COVID-19. Clinics are held on the fourth Friday of each month, unless it falls on a statutory holiday – the next two meetings are November 19 and December 17. Reserve a spot by calling 415-982-1300.