Can I CancelMy LeaseEarly?OPTIONS FOR CALIFORNIA TENANTSIMPACTED BY COVID-19 UC SAN DIEGO STUDENT LEGAL SERVICES

Disclaimers

Yes, we are attorneys, but we are not yourattorneys, and this webinar does not create an

attorney-client relationship with us.

We are licensed to practice law in California andhave based the following on California and U.S.

Federal law. This webinar is informational innature. It does not constitute legal advice andshould not be relied upon as such. You should

consult with an attorney regarding your particularfactual or legal circumstances.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

JON CARLOS SENOUR AND MARY ANANSTUDENT LEGAL SERVICES STAFF ATTORNEYS

No New orProposedLegislationat ThisTime

California Governor Gavin Newsom has used his executive authority toalleviate some financial concerns for Californians, but none so far havebeen designed to address tenants impacted by COVID-19.

MARCH 23, 2020

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

UNLAWFULDETAINER COURT

As of March 17, 2020 theSan Diego SuperiorCourt suspended all"Unlawful Detainer"actions, except for oneswhere the landlord isclaiming they need"emergency relief."*through 4/3/2020

Current DevelopmentsImpacting San Diego Tenants

SMALL CLAIMSCOURT

All Small Claimsfilings aresuspendedAll Small Claimsmatters will berescheduled.

As of March 17, 2020:

*through 4/3/2020

FEDERAL ORSTATE-MANDATEDSTAY ONEVICTIONS?

None (so far.)

SAN DIEGOSTAY ONEVICTIONS?

City Council will bevoting on a newordinance in the"coming weeks" thatwill halt evictions butwill not relievetenants ofrequirements to payrent. (Mayor's PressRelease 3/17/2020)

POTENTIALRELIEF FORMORTGAGEHOLDERS

Relief packagesproposed byCongress seem touniversally have relieffor mortgage holders.Fingers crossed ittrickles down totenants?

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

PAY RENT TO THE END

If you sign a fixed-term / year-longlease, you are promising, and arethus legally obligated, to makemonthly rent payments for the fullyear. Full stop.

LANDLORD DUTY TOMITIGATE

However, a landlord has a duty to"mitigate" (i.e., reduce/alleviate)any financial harm they suffer.

BEST STRATEGY?

Though no law requires you tohelp find a replacement tenant ifyou move out, it is generally agood idea if it means your unitgets a replacement tenant ASAP.Also, the lease contract mayspecifically require it.

BREACHING A LEASE 101

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

POTENTIALLEASECANCELLATIONOPTIONS

INFORMAL RESOLUTION

A mutual agreement between you, your landlord, and your roommates toterminate your lease.

ACCOMMODATIONS REQUESTS UNDER DISABILITY LAW

Primarily for those who may be personally physically impacted byCOVID-19.

CONTRACT LAW DEFENSES

Circumstances where contracts may no longer be enforceable.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

Informal Resolution

The parties to a contract are always freeto attempt to end the contract and/orreach a new agreement. In the landlord-tenant context, thismeans that as long as a landlord andtenant(s) agree to something differentthan what is contained in the lease, itmay be a binding modification. A new agreement upon which everybodyagrees is always a preferable outcometo relying on the law or the courts toresolve a dispute. Most leases require that any changes toit be made "in writing", and many requirethat changes be made in writing andsigned by both/all parties; be sure tocomply with these requirements.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

INFO

RMA

LRE

SOLU

TIO

NST

RATE

GIE

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PAPER TRAIL, PAPERTRAIL, PAPER TRAIL!

Get all communications in writing."Writings" include social mediamessages, texts, emails, etc. "Screenshot" is your best friend! However, do not attempt to video oraudio record someone without theirconsent - that's a crime in California!

CALM, PROFESSIONAL,AND ASSERTIVE

Be mindful of your own tone in allcommunications. Maintain a neutral, calmtone. Assert what you need without beingdemeaning or rude. Please note: feelings of anger, frustration,fear, and confusion are completely normal.As a strategy for success, try not tochannel any of those frustrations towardsyour landlord.

RELYING ON TRUSTEDTHIRD PARTIES' ADVICE

While there is no law requiring yourlandlord to negotiate with you, feelfree to utilize any public safety and/oradvocacy group messaging whilecommunicating with your landlord. Examples: CDC recommendations, CAGovernor recommendations, CAApartment Association press releases,etc.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

"ReasonableAccommodations"

Requests underDisability Laws

WHO MAY EXERCISETHIS OPTION?

Only persons withdisabilities as defined bylaw.

COMPLAINTS ANDENFORCEMENT

State and federal agenciesmay investigate and, ifappropriate, sue yourlandlord.

POSSIBLE BARRIERS

Landlords may not knowthe law and may not knowtheir obligations andlimitations.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

California state law prohibitsdiscrimination by sellers, landlords,and those who provide housing-related services. Housing policies, practices, terms,and conditions must allow peoplewith disabilities equal access toapartments, houses, condos, andother dwellings. Where necessary, reasonableaccommodations in housing rules,policies, practices, or services arerequired to allow people withdisabilities equal opportunity to useand enjoy dwellings.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

CaliforniaDefinition of"Disability"Hint: It's much broader than the Federal definition.

2 CCR § 11065 (d) “Disability” shall be broadly construed to mean and include any of thefollowing definitions:(1) “Mental disability,” as defined at Government Code section 12926(2) “Physical disability,” as defined at Government Code section 12926(3) A “special education” disability is any other recognized health impairment ormental or psychological disorder not described in section 11065(d) of this article,that requires or has required in the past special education or related services. (4) A “record or history of disability” includes previously having, or beingmisclassified as having, a record or history of a mental or physical disability orspecial education health impairment of which the employer or other coveredentity is aware.(5) A “perceived disability” means being “regarded as,” “perceived as” or “treatedas” having a disability. (6) A “perceived potential disability” includes being regarded, perceived, ortreated by the employer or other covered entity as having, or having had, aphysical or mental disease, disorder, condition or cosmetic disfigurement,anatomical loss, adverse genetic information or special education disability thathas no present disabling effect, but may become a mental or physical disability orspecial education disability.(7) “Medical condition” is a term specifically defined at Government Code section12926, to mean either:(A) any cancer-related physical or mental healthimpairment from a diagnosis, record or history of cancer; or(B) a “geneticcharacteristic,” as defined at Government Code section 12926. (8) A “Disability” is also any definition of “disability” used in the federal Americanswith Disabilities Act of 1990 (ADA)(9) “Disability” does not include... conditions that are mild, which do not limit amajor life activity, as determined on a case-by-case basis. These excludedconditions have little or no residual effects, such as the common cold; seasonal orcommon influenza; ...

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

"NO DISABILITY"

"WOULD IMPOSE ANUNDUE FINANCIAL AND

ADMINISTRATIVE BURDENON THE HOUSING

PROVIDER"

"WOULD FUNDAMENTALLYALTER THE NATURE OF THE

HOUSING PROVIDER’SPROGRAM"

GROUNDS FOR DENYINGACCOMMODATION REQUESTS

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

BE CREATIVE & OPEN-MINDED

What other options could you propose that will achieve the sameoutcome? Are you willing to concede in any area or meet your landlord part way?Remember that an acceptable outcome may not look like your idealoutcome.

COOPERATE

Disability laws assume you are negotiating in good faith and are trying tocome to a resolution. Evidence of you not returning phone calls,resorting to name-calling, or otherwise being unreasonable incommunicating may indicate your unwillingness to engage in the"interactive process."

COMPARE!

What have other landlords done for tenants in our community? Or forother similarly-situated tenants? What public guidance is being offeredby any local political or university leaders?

STRATEGIESDURING THE

"INTERACTIVEPROCESS"

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

Is theLandlordStillViolatingDisabilityLaws?

OFFICE OF FAIR HOUSINGAND EQUAL OPPORTUNITY

hud.gov

CALIFORNIA DEPARTMENTOF FAIR EMPLOYMENT ANDHOUSING

dfeh.ca.gov

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

to Avoid Enforcing a Lease

ContractLawDefenses

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

"Force Majeure"clauses

A force majeure (also "Act of God") clause ismeant to protect the parties to a contract in theevent that a contract cannot be performedbecause of things outside the control of theparties and that could not be avoided.

Example: “In the event that either Party is delayed orprevented from the performance of any act byreason of strikes, lockouts, unavailability ofmaterials, failure of power, restrictivegovernmental laws or regulations, riots,insurrections, war or other reason beyond itscontrol, then performance of such act shall beexcused for the period of the delay and theperiod for the performance of such act shallbe extended for a period equivalent to theperiod of such delay.”

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

Limitationsto ForceMajeureClauses

RARELYRESIDENTIAL

A "force majeure" clause ismuch more likely to appearin a commercial lease orcontract than a residentiallease.

MUST CONTAINCAREFUL WORDING

Clauses that are toonarrow or specific (e.g., donot mention "pandemic")may not even beenforceable.

ADDITIONALPROVISION STILLREQUIRING RENT?

Even if there is a "forcemajeure" clause, leasesmay still require paymentof rent.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

Other ContractLaw-BasedArguments NotApplicableWhile California acknowledges a variety of instanceswhere an otherwise validly formed lease can be deemedunenforceable, those legal theories only apply to thetime the contract was entered into.

OPTIONS FOR CALIFORNIA TENANTS IMPACTED BY COVID-19

If You HaveRentersInsurance, Digout the PolicyNow!Insurance policies are custom contracts that vary fromcustomer to customer.

At least take some risk-lowering precautions:

Talk to your roommates first; you are most likely "jointly and severallyliable", so anything you do affects the others, and vice versa!Notify your landlord if the unit will be vacant. This will help put yourlandlord "on notice" of any potential liability issues that may arise afteryou all move out. Return all keys ASAP. You will be deemed to be "in possession" of theunit until you return the keys.Cancel the utilities for that address for which you are responsible onlyif no one will continue living there.Check your lease- did you promise to notify the landlord if you wouldbe gone for a certain number of days?Submit a mail forwarding request with the U.S. Postal Service.

Committed toAbandoning YourLease?

LOCATE IMPORTANT DOCUMENTS

During this period of social distancing, take the time to locate your lease. Other documents that you should locate if you have them: rentersinsurance policies, roommate agreements, and any addenda oramendments to a lease. 

PAPER TRAIL, PAPER TRAIL, PAPER TRAIL!

Carefully document - and keep records of - all communications withyour landlord. The best way to do this is to keep communications inwriting, e.g. snail mail, email, text messages, social messaging apps, etc.

PRIORITIZE YOUR HEALTH

You and your dependents' health should be the top priority in thecoming weeks/months. Be the best tenant you can be withoutjeopardizing your health.

CLOSINGTHOUGHTS

Questions?

Student Legal ServicesUC San Diego

ONLINE

http://sls.ucsd.edu

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858-534-4374

EMAIL ADDRESS

sls@ucsd.edu