Avoiding Litigation May Be Your Best Choice

Photo: The Business Wire

Written By: Teddy Swain, | July 29, 2020

In the midst of the COVID-19 pandemic, it is essential that landlords continue to educate themselves, communicate openly, and surround themselves with experts in order to stay on top of the ever-changing legal landscape. To help make this possible I am sharing a great conversation I had last week with attorney Daniel Bornstein of Bornstein Law who specializes in landlord-tenant matters. For over 26 years, rental housing providers have relied on Daniel to cauterize risk, realize the full potential of their investment property, and power through unique challenges inherent with owning and operating a real estate business.

Below are some of what I felt were the most relevant and prudent points we discussed.

TRI Commercial, Alameda, Bornstein Law
Teddy Swain

Daniel, with all that is going on right now, how can landlords in Alameda County best be prepared?

Most important to note right now is that the courts are closed for non-payment of rent cases, there are no jury trials because of social distancing. Alameda County across the multiple cities has issued a prohibition against eviction for non-payment of rent which means right now, if you have a tenant who is not paying rent, you really want to be on-top of communication with that tenant. You should be actively asking why aren’t you paying the rent, is it related to COVID-19, loss of job, childcare needs or something else? Then you need to make a decision: are you going to be differing the rent, renegotiating the lease, or negotiating a buyout of the lease?

One important point is that from a landlord’s perspective knowing the courts are closed, it is in some cases better to have a vacant unit than a tenant not paying the rent in the unit. There is a possibility that you’re not going to gain possession, the non-payment of rent may elapse for more than 6 months, and there is no clarity as to when you’re going to get that vacancy. So, if a tenant says I am willing to vacate if you let me out of the lease that may be perfectly prudent because what is the alternative? The courts are closed, you’re not receiving rent, and to do an eviction right now is not permissible and may not be permissible this year. We are in a very unfortunate situation for many landlords around Alameda County right now.

How would you approach a situation where you have a tenant who is communicating openly and requesting a rent reduction?

That is a good question, and I take it on an individual basis – if you just started a tenancy, and the rent is at market rate, and we are seeing downward pressure on rents, it may be prudent to negotiate a 10-20% reduction in rent and keep that tenant in the unit and happy. In the end, cash-flow is better than no cash-flow, and the issue is whether this is a credible person that you want to do business with or not. In the event that you do have a tenant who is engaged and in good faith and is without a job, you’re going to have to make a decision of whether you are going to delay payment, differ payment or waive rent.

One big note, if you reduce the rent and you don’t do it correctly, you may reset the base rent so that you may be subject to that new base rent in later years when times change. All things equal, I’d rather you defer the rent or just keep track of the debt that is accruing and, in the future, come to a decision of whether you are going to waive it or try and collect it. Alameda County has done something very unusual in that they have indicated that tenants with rent debt that has arisen during the COVID-19 emergency are going to be given 12 months after the emergency is ended to repay that debt. If it is not repaid it will be transitioned to consumer debt, so you will not be able to evict a tenant for COVID-19 related debt. You can take it from the security deposit and you can file a lawsuit against them, but you’re not going to be able to use a three-day notice to pay rent or quit to recover it. Knowing that has basically pushed me to suggest the age-old adage, a bird in the hand is worth two in the bush. Which means if you can collect a portion of the rent now, do so because I don’t know that you’ll ever be able to recover it in the future.

All things being equal, and if you don’t want to get into the complexity – if the rent is $1,000 and you receive $750, you can accept $750 but follow it up with an email saying, ‘I’ve accepted $750, but be advised there is still a debt of $250 for the month of July.’ I’d do it that way and just keep track of the debt that’s accruing.

How has your business changed and what kinds of requests are you getting from clients at the moment?

It’s a tough time to be an attorney right now because the courts are closed! So, what I am typically doing right now is consulting, educating, empathizing and commiserating, because I don’t have that many skills that I can offer right now to help accomplish goals. Which translates to, compromise, compromise, compromise is really what I am suggesting. This is an outlier of an event, I’ve never been involved with a pandemic before, I’ve never seen the courts closed, so this is a work in progress.

As far as an outlook, what if any legal trends you are forecasting?

Trending in my mind is that there is going to be continued downward pressure on rent, and there is going to be more and more tenants that are unable to pay the rent. After July, if there aren’t additional unemployment payments then there is going to be even more tenants unable to pay. Then it will be up to the politicians to decide how they are going to handle this crisis, but my expectation is that we are in for a very long and difficult journey together.

I am particularly concerned about another issue, which is the courts are moving existing cases to September, and they will likely move the existing cases that have been moved to September, to December while we are getting a confluence of new cases that are arising. Our systems are clogged and only will get further clogged, which means if you can avoid litigation, if you can avoid a dispute with a tenant, avoid it, negotiate transitions, and don’t expect to accomplish your goals easily through litigation.

One easy analogy if you’ve been following the news lately, you’ll have seen the actor Johnny Depp has decided to pursue a claim in Britain against his ex. In the process of pursuing litigation, he has ensnared himself in something much larger and from a public standpoint it has been miserable for his reputation. In some respects, the optics of pursuing litigation on a tenant right now are not ideal and only in a last case solution would I pursue it. There are going to be times where you have to pursue it because you have a tenant who is not communicating or cooperating, and you have to seek judicial remedy but for all other instances see what you can do outside of court.

About the Author:

Teddy is a commercial real estate broker and adviser at TRI Commercial Real Estate Services in the San Francisco East Bay. His expertise lies in the acquisition and disposition of East Bay Area Multi-Family and Mixed-Use property as well as Entitlement and Development Opportunities.

Teddy also serves as the Technology Officer on the board of directors for the Certified Commercial Investment Member’s Northern California Chapter (CCIM).

DRE# 02067677 Email: teddy.swain@tricommercial.com –

Direct:925.296.3360

Read original article on The Registry here.

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