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LA County’s new Covid-19 tenant protections are found too vague to enforce

The county's new set of protections leave landlords without meaningful guidance on whether they can bring an eviction action and whether they are likely to succeed if they do, a judge said.

LOS ANGELES (CN) — A new set of Covid-19 tenant protections that replaced Los Angeles County's residential eviction moratorium earlier this year is too vague and can't be enforced, a federal judge said.

U.S. District Judge Dean Pregerson on Wednesday issued a preliminary injunction against enforcement of the eviction protections effective Dec. 1. The judge agreed with the Apartment Association of Los Angeles County and the Apartment Owners Association of California that the protections that took effect July 1, 2022, are unconstitutionally vague.

"That the Tenant Protections are difficult to suss out is not sufficient to render them unconstitutionally vague," the judge said. "The question, rather, is whether the resolution gives 'the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.'”

The county, like the state of California and the city of LA, imposed restrictions on landlords so that tenants, who lost their income when the pandemic first swept through the U.S. in 2020, wouldn't end up on the streets. In January, the County Board of Supervisors passed a resolution that, its lawyers argued, began a multi-phased termination of all county tenant protections related to Covid-19.

However, according to the judge, that resolution incorporated over a dozen prior resolutions and amendments related to Covid-19, resulting in a document that lists, across several different sections and subsections, different types of protections, applicable at different times, to different groups of tenants.

The section that deals with eviction protections asserts that, while there is no longer a total moratorium on evictions, a limited pool of tenants, with a household income equal or less than 80% of the area median income and who aren't able to pay rent for reasons related to Covid-19, are "protected from eviction," according to the judge's findings.

But another section of the resolution says that this protection only provides an "affirmative defense for a tenant in an unlawful detainer action."

"Thus, under the county’s interpretation, the current Tenant Protections do no more than provide an affirmative defense to a discrete set of tenants, under relatively specific circumstances, who are already involved in unlawful detainer proceedings," Pregerson said.

But yet another section of the county's resolution prevents a landlord from bringing an unlawful detainer action "at peril of civil and criminal penalties," unless the landlord reasonably believes that the tenant’s affirmative defense will fail. And it is impossible for a landlord to know whether or not such a defense will end up failing, the judge said, because of the seemingly unlimited Covid-19-related reasons a tenant can cite as reasons why they can't pay their rent.

"Without any meaningful guidance from the resolution, landlords are left to guess, not just as to the likelihood of success of any unlawful detainer action, but as to whether the very filing of any such action is prohibited," the judge wrote.

Attorneys representing LA County in the lawsuit didn't immediately respond to a request for comment on the decision.

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