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Leveraging Litigation: Evictions in the Age of Covid-19

Leveraging Litigation: Evictions in the Age of Covid-19

By Kelly McDonald

The courts are closed and the Governor has issued an executive order limiting evictions. What, then, can landlords do with tenants who are not paying the rent?

The April 16 Executive Order

Let’s start with the background. The Governor’s April 16, 2020 Executive Order places three restrictions on landlords’ ability to evict tenants.

  • First, landlords are prohibited from trying to evict a tenant (residential or commercial) by a means not authorized by law. In other words, landlords should be very cautious about exercising “self-help” and simply changing the locks. You probably need a court order to evict and could be committing a crime if you proceed without one.
  • Second, if you obtained a writ of possession before the courts closed (so before March 18), you may not serve that writ on a tenant. (There are some exceptions to this rule.)
  • Third, if you have a tenant without a lease (a tenant at will), and you want to give the tenant a notice of default, you have to give the tenant 60 days (instead of 30 days) to come current on rent and 30 days to cure non-rent defaults (instead of 7 days).
The Courts

How about the courts? They are currently taking no action on eviction actions until after May 1, and that date is likely to be extended. Once the courts do reopen for business, there will be a huge backlog of cases. This, in turn, means that court action will likely be delayed, perhaps by months.

Options for Landlords

Landlords still have plenty of options, but they should be aware that their ultimate option – eviction – is going to be on hold for a while.

As an initial matter, landlords should be working with their lenders to defer loan payments. Those deferrals, in turn, could be passed on to tenants in need of extra time. Empathy in the appropriate situations is always humane.

For more recalcitrant tenants, landlords still have most of their tools available to them. They can send notices of default, terminate leases, threaten to sue for unpaid rent, and in fact file lawsuits for both evictions and recovery of damages. Those lawsuits will simply sit there for some undetermined time, but it puts the case into the queue to be heard.

If you have questions, feel free to contact us. Please keep in mind that we are in a quickly changing environment and this analysis was current when written. Always check with your lawyer for the most current information.