COVID-19 and Lease FAQs

Although legal grounds to terminate a lease in California must be analyzed on a case-by-case basis, the COVID-19 outbreak is NOT likely a basis to successfully terminate a lease. Similarly, UC San Diego’s decision to offer only online instruction for Spring Quarter 2020, financial hardship, and mental distress generally are NOT grounds to terminate a lease.

There however are exceptions to this general rule. There may be a legal argument favoring termination if the tenant has either acquired COVID-19 or is immuno-compromised and there is a greater risk of infection in the rental property than another abode where the tenant could reside (e.g., family residence). You will need to consult with an attorney to make this legal argument.

1. If there is a condition in the residence that renders it uninhabitable, and the landlord is notified of the condition and fails to repair it within a reasonable period (California Civil Code Section 1942). You should consult with an attorney before attempting to terminate your lease using this statute, as this legal ground is not available for most repair issues.
2. Some leases, though not many, have a provision that allows early termination if all tenants agree and pay a termination fee – typically one month’s rent. If you cannot find a copy of the lease, you should request one from your landlord. Landlords are required to provide a copy of their lease to tenants within 15 days of execution (Civil Code Section 1962).
3. A “force majeure” clause identifying a “pandemic” may allow for termination. Force majeure clauses are extremely rare in residential leases; they are more common in commercial leases. Even if your lease has a force majeure clause, it may not specifically identify “pandemic” as a basis to trigger the clause. You should consult with an attorney before attempting to terminate your lease based on a force majeure clause.

• With few exceptions, California law requires a tenant to pay rent through the end of the lease term. You can try to negotiate with your landlord to relieve you of the burden of paying rent, but most landlords are not going to be open to an early termination, as they count on rent to pay the mortgage, insurance, homeowner association fees, and property taxes on the property.
• When you negotiate with your landlord, be respectful and reasonable. Being angry, rude, or belligerent are not winning techniques. Explain your situation calmly and thoroughly, and be willing to explore any reasonable options that the landlord suggests.
• If the landlord agrees to any changes in the lease terms, you MUST get them in writing and signed by all parties. Technically, lease amendments are not enforceable unless they are in writing signed by all parties to the agreement. An agreement reached via email, text, or social media may be a workable alternative if the signed writing is not possible, but be sure to save it in a way that you can easily access it if the landlord later attempts to back out of the agreement.
• One option is to ask the landlord if you can sublease (or “assign”) your residence. Most leases require tenants to get the landlord’s written consent to sublet. Under California law, landlords should act in good faith when determining whether to consent to the sublease. Some landlords require that prospective sublessees to go through the application process and be subjected to a credit check.

• On March 27, 2020, Governor Newsom announced a state-wide moratorium on eviction orders and their enforcement until May 31, 2020 for tenants who are unable to pay rent due to COVID-19:
  • If they have lost income due to COVID-19, the state of emergency, or related government response.
  • If they are unable to work because they have COVID-19 or if they are caring for someone with the virus.
  • If they are caring for children whose schools are closed.

• Under the Governor’s order, all tenants must notify the landlord in writing before the rent is due or no later than 7 days after it is due that they are unable to pay and maintain documentation supporting the reason they are unable to pay. It only applies to tenants who are not in arrears in rent. Tenants remain liable to pay the rent due, and evictions may resume after the moratorium ends.

On March 25, 2020 the City of San Diego Tenants also issued a stay on eviction. This means that landlords cannot take action to evict a tenant for not paying rent that was due on or after March 12, 2020, if the tenant is not able to pay because of the financial effects of COVID-19.

The temporary ban on evictions lasts until May 31, 2020, unless the San Diego City Council takes action to extend it.

Requirement for Tenants Utilizing this New Law: 

• A tenant must notify their landlord in writing that they are not able to pay their rent in a timely manner because of COVID-19.
• This written notice must be provided to the landlord on or before the date the rent is due.
• Within one week of providing this notice to the landlord, the tenant must provide the landlord with documents or objectively verifiable information that the tenant is unable to pay rent because of the financial effects of COVID-19. (Examples of documentation: note or letter from employer regarding tenant’s loss or substantial reduction in employment; payroll records showing substantial loss of income due to COVID-19; bank statements that illustrate a drop in income; or other documentation that proves that tenant has not been generating the same level of income due to COVID-19. A tenant may also show substantial out-of-pocket medical expenses related to COVID-19.)
• If a tenant does not provide the required documents/information within one week, a landlord may pursue an enforcement action that is allowed by state or local laws.
• If a tenant moves while the City of San Diego’s temporary ban on evictions is in effect, all rent owed is due when the tenant moves out, unless the lease says this will be handled differently.
• Tenants who are protected from evictions by the City of San Diego’s Ordinance have up to six months from the date the ordinance is effective (March 25, 2020 – September 25, 2020) or the date Governor Newsom’s executive order is withdrawn, whichever occurs soonest, to pay their landlords all unpaid rent.

• If you sublease either all or part of your residence, you still remain liable to the landlord. So if your sublessee damages the residence or fails to pay rent, the landlord can require you to pay the rent or the cost of repairing the damage. This is why it is a good idea to ask for a security deposit from the sublessee. Given the number of people looking for sublessees, it may be difficult to find one who is willing to pay a deposit.
• Because the landlord has no contractual relationship with the sublessee, only you (as the “master tenant”) have the legal capacity to evict a sublessee. Therefore, if the landlord wishes to evict the sublessee, they will have to evict you (even if you are not at fault).
• Another possible risk is that the sublessee may not leave the residence when the lease ends. This is particularly problematic if the sublessee has stopped paying rent. If the sublessee continues to live in the residence after the lease terminates, the landlord may decide to file an eviction action. See the section below for the consequences of eviction actions.
• If some of your roommates are staying in the residence, there may be an issue if your roommates do not approve of your sublessee. If you have a roommate agreement, either written or oral, then the terms of the agreement would govern what type of permission may be necessary.

• If you fail to pay your rent in full, your landlord could decide to file an eviction action called an “unlawful detainer” (or “UD”). The landlord can file a UD even if most of the rent has been paid. There are several negative consequences of having a UD filed against you. Just the filing of the UD can cause your name to be listed on the Unlawful Detainer Registry, which is like a credit reporting agency. Many California landlords subscribe to the UD Registry and will not rent to people who are listed in in the registry. In addition, the UD will appear in your credit report if the landlord gets a judgment against you. Although the UD filing is “masked” from the public record for the first 60 days after filing, it will appear in the public record if the landlord prevails in the UD proceeding within 60 days after filing. While current conditions caused by COVID-19 may make it more difficult to file and proceed with a UD claim in court, there may still be serious consequences to nonpayment of full rent
• An eviction does not relieve you of your obligations under the lease. In addition to a court order giving the landlord the right to regain possession of your residence, the judge will order that you pay rent through the end of the lease or until the landlord finds a replacement tenant. The court also will order you to pay any costs that the landlord incurs in trying to find a replacement tenant. If your lease has an “attorney’s fees” provision (as most do), then the court will order you to pay the landlord’s attorney’s fees, up to any limit noted in the lease, in addition to their court costs.

• You and all of your roommates who are on the lease and signed it are jointly and severally liable. Joint and several liability is a legal term that means that each of you is liable for the full amount of the rent and the full amount of any damage to the residence. It also would include any co-signors/guarantors. So if one of your roommates fails to pay rent, the landlord can look to any or all of the other tenants or guarantors (including parents) to pay that person’s share of the rent.
• Joint and several liability also means that the landlord would name all of the tenants and their co-signors/guarantors in any lawsuit for nonpayment of rent or damage to the residence or for eviction.
• Another consequence of joint and several liability is that one tenant cannot terminate the lease if other tenants are staying in the residence. All tenants who signed the lease are considered to be one “unit.”

Currently registered UC San Diego students may get legal assistance regarding any landlord-tenant matter from UC San Diego Student Legal Services. Please call us at (858)534-4374 to schedule an appointment. Student Legal Services is offering appointments by Zoom or telephone; there are no in-person services.

You also can contact Student Legal Services at sls@ucsd.edu. Student Legal Services is located in the Student Services Center, Room 527, but all work is being done remotely at present.

• "COVID-19 Legal Issues," maintained by the San Diego Public Law Library.
• Mayor of San Diego Kevin Faulconer's Press Releases. 
• "Coronavirus (COVID-19) Updates," maintained by the San Diego Housing Commission.