BILL ANALYSIS
AB 2712
Page 1
Date of Hearing: August 29, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2712 (Leno) - As Amended: August 24, 2006
SUBJECT : HOUSING: SEX OFFENDERS
KEY ISSUE : SHOULD THE RIGHTS AND DUTIES OF LANDLORDS BE
CLARIFIED REGARDING THE TENANCY OF PERSONS WHO ARE REQUIRED TO
REGISTER AS SEX OFFENDERS?
SYNOPSIS
This measure reflects the consensus reached by the author
between owners of rental property and tenants regarding
residential rental to persons who are required to register as
sex offenders under Megan's Law. In response to concerns by
landlords that Megan's Law could be construed to leave them at
risk of liability for renting to Megan's Law registrants, this
bill makes clear that Megan's Law does not impose a duty on
landlords to use information available on the Megan's Law Web
site to make decisions about housing accommodations. The bill
likewise clarifies that no duty is created solely because a
landlord rents or continues to rent to a person who is
registered or is required to register under Megan's Law, or has
been convicted of a sex offense in another state or foreign
jurisdiction. Finally, the bill makes clear that it Megan's Law
neither enlarges nor diminishes other duties or rights that a
landlord may have under other laws. Unlike other rental
property owner associations, the California Apartment
Association (CAA) contends that the bill is not the proper
solution to the problem. CAA argues instead that landlords
should be authorized to refuse to rent to Megan's Law
registrants, contrary to the non-discrimination provisions of
that law.
SUMMARY : Clarifies existing law regarding the duty of a
residential landlord as to the tenancy of individuals who are
required to register as sex offenders. Specifically, this bill :
1)Provides that no duty toward tenants shall arise on the part
of a residential landlord solely for renting or leasing
residential real property to a person who is registered or who
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is required to register under Section 290 of the Penal Code
(Megan's Law) or who is a person who has been convicted as a
sex offender in another state or foreign jurisdiction.
2)Makes conforming changes to related Penal Code provisions to
clarify that a landlord's specified authorization to use
Megan's Law registration information is discretionary, and
does not create a duty to use the information.
3)Makes related findings and declarations regarding existing
law, including that the Megan's Law registration requirement
does not impose a duty on landlords to use information
available on the Megan's Law Web site to make decisions about
housing accommodations, and that no duty is created solely
because a landlord rents or continues to rent to a person who
is registered or is required to register or has been convicted
of a sex offense in another state or foreign jurisdiction.
EXISTING LAW:
1)Requires a person convicted of specified sex offenses to
register with law enforcement officials, as specified, within
five working days of coming into a city or county where he or
she is domiciled. Registration is for a lifetime, must be
updated annually, and must be completed on a form provided by
the Department of Justice (DOJ). (Penal Code section 290.)
2)Establishes a system for providing the public with information
about registered persons via an Internet website maintained by
the DOJ (the Megan's law database). Depending upon the
severity of the sex offense, information is available as to
some sex offenders with their specific home addresses, while
others are identified only by zip code and community of
residence. The following information is contained in the
database: name or names and known aliases; a photograph; a
physical description, including gender and race; date of
birth; criminal history; address at which the person resides;
or the person's zip code and community of residence, as
specified; and any other information the DOJ considers
relevant and not excluded by law. (Penal Code section 290.)
3)Provides that a lease or rental agreement to a registered sex
offender contain a notice regarding the availability of
Megan's Law information from a local law enforcement agency or
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on the DOJ Megan's Law website, and generally provides that
upon delivery of this notice to the lessee the lessor is not
required to provide any additional information other than that
regarding proximity of sex offenders. (Civil Code section
2079.10a.)
4)Provides that it is unlawful to use any of the information
that is disclosed pursuant to [the Megan's law registration
requirement] for purposes related to housing or
accommodations, benefits, privileges or services provided by
any business establishment, insurance, loans, credit,
employment, education, scholarships or fellowships, except to
the extent authorized by law. (Penal Code section
290.46(l)(2).)
5)Provides that a person is authorized to use information
disclosed pursuant to the Megan's law database only to protect
a person at risk. (Penal Code section 290.46(l)(1).)
6)Provides that everyone is responsible, not only for the result
of his or her willful acts, but also for an injury occasioned
to another by his or her want of ordinary care or skill in the
management of his or her property or person, except so far as
the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself. (Civil Code section
1714.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : This bill is co-sponsored by the California Housing
Council (CHC) to clarify the duties and obligations of landlords
under Megan's Law. Specifically, the bill would make clear that
current law does not impose a duty on landlords to use
information available on the Megan's Law website to make
decisions about housing accommodations, and that no duty is
created solely because a landlord rents or continues to rent to
a person convicted of a sex offense.
As CHC points out, AB 2712 would not absolve landlords of
obligations that may exist under other laws or to maintain their
premises.
The Western Center on Law and Poverty writes, "[This] bill would
clarify that a landlord has no special duty with regard to
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renting property to a tenant who is required to register on the
Megan's Law database. It also clarifies that the general duty
required of landlords to provide safe housing remain in place;
thus a landlord can evict and make other housing decisions based
on conduct, rather than status. These clarifications will help
to ensure that there will not be a further concentration of
offenders in lower-rent apartments and single-room occupancy
hotels, which would put poor, latch-key children at a greater
risk than better-off children. We understand that higher income
tenants with easy access to the Megan's Law database already
demand that their landlords refuse to rent or evict offenders.
Unfortunately, this is a zero-sum game: the offender has to live
somewhere. Where are they likely to go? To lower-rent housing,
where the tenants lack the equipment and time to check whether
the new tenant is registered. By clarifying a landlord's
duties, [this] bill would inhibit the wholesale shifting of
offenders to poor neighborhoods. [This] bill reaches a delicate
balance in this very difficult and vexing situation."
California law well establishes that landowners must maintain
land in their possession and control in a reasonably safe
condition. (Civil Code section 1714; Rowland v. Christian
(1968) 69 Cal.2d 108.) In the case of a landlord, this general
duty of maintenance, which is owed to tenants and patrons, has
been held to include the duty to take reasonable steps to secure
common areas against foreseeable criminal acts of third parties
that are likely to occur in the absence of such precautionary
measures. (Frances T. v. Village Green Owners Assn. (1986) 42
Cal.3d 490, 499-501.) Otherwise, there is no tortious liability
for the criminal acts of an independent third party.
Case law also holds that a person has "no duty to act to protect
others from the conduct of third parties." (Delgado v. Trax Bar
& Grill (2005) 36 Cal.4th 224, 235 (Delgado).) Thus, if there
is no duty, there can be no liability. And there is no duty if
there is no foreseeability. (The existence and scope of any
duty, in turn, depends on the foreseeability of the harm, which,
in that context, is also a legal issue for the court. (Delgado,
36 Cal.4th at 239.)
AB 2712 would provide that "no duty shall arise for a lessor
solely for renting residential real property" to a person who is
required to register as a sex offender in California or who was
convicted as a sex offender in another jurisdiction. This
provision reflects the public policy determination that the sole
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act of renting to a convicted sex offender does not establish
foreseeability that the sex offender will repeat his or her
crime and will cause harm to a tenant or other person. Of
course, if the lessor in fact acquired other knowledge to
establish foreseeability that the person would likely commit a
crime, a duty could arise depending on the circumstances.
However, that duty would depend on the foreseeability of the
criminal act, and not on the mere fact that the offender is a
convicted sex offender.
Thus, AB 2712 also provides that "this section is not intended
to enlarge or diminish any other duty or right that a lessor may
have under other laws (and circumstances) with respect to a
tenant of residential real property." Another provision of AB
2712 would further provide that the delivery by the landlord of
the notice informing tenants of the Megan's Law website and its
available information, does not create a special relationship
between the landlord and the tenant (which in turn might give
rise to foreseeability and a duty). This provision is intended
to thwart frivolous claims that the mere giving of the notice
creates a special relationship between the lessor and tenant.
Although no court would likely find a special relationship based
on those facts, the argument could nonetheless be asserted,
which would cost landlords money to defend. This provision
would preempt those frivolous actions.
ARGUMENTS IN OPPOSITION: Unlike other property owner groups,
the California Apartment Association (CAA) opposes the bill,
stating:
This legislation purports to create liability protection
for property owners from the acts of sex offenders against
other tenants. It does not. And even if it did, AB 2712
is not the answer.
While CAA supports online display of the Megan's law
database, widespread publication of the sex offender
registry has created some unintended consequences in rental
housing. In particular, tenants who must be notified about
the database in their rental agreements learn that a sex
offender lives on the property and subsequently demand the
property owner "do something about it." Property owners'
hands are tied, however, by the Penal Code which prohibits
use of the database for housing or accommodation. CAA has
maintained a consistent policy position since the sex
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offender issue emerged as a dilemma for the industry.
Tenant safety is paramount. CAA members have not been
willing to abdicate tenant safety for owner liability
protection. Instead, CAA believes property owners should
have the ability to screen tenants to determine their
fitness for tenancy within a particular apartment
community.
According to independent legal analysis, AB 2712 not only
fails to provide the liability protection claimed, but it
contains glaring internal conflicts. AB 2712 does not
absolve landlords of obligations that exist under other
laws. Under current law, landlords have a duty to take
reasonable steps to secure the property against the
foreseeable criminal acts of third parties. In this case,
the known danger - as stated by the legislature itself - is
the sex offender.
Even if the liability protection proclaimed by proponents
of AB 2712 were real, it would exacerbate an already
precarious situation. True liability protection would
destroy the most basic business decision argument that
landlords have used for rejecting sex offenders - tenant
safety must come first. Moreover, families with children
who share a common wall and common areas of rental property
with a sex offender and low-income tenants who cannot
afford to move out of the property when a sex offender
moves in bear a heavy burden. Under AB 2712, a sex
offender's purported right to live at a particular rental
property is bolstered when property owners cannot use their
business judgment to determine fitness for tenancy.
While landlords are in business to make a profit, they also
have a duty to provide clean and safe housing. Restricting
use of sex offender data, however, gives landlords a
conflicting directive. Moreover, while any rational
business owner today will argue that a shield from lawsuits
is a laudable and necessary goal in order to maintain a
viable and financially successful operation, liability
concerns have taken a back seat to the looming specter of
an incident involving a known sex offender who harms
another tenant. In addition, the cost of tenant turnover
and the extortion by sex offenders who demand that
landlords give them money to move are on the rise.
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Despite the need for policy solutions, CAA is concerned
that the current volatile situation is ripe for evolution
into another "Three Strikes" fire storm. Therefore, CAA
urges the Legislature to address the current problems
quickly and thoroughly to prevent this from occurring. AB
2712 is not the answer.
REGISTERED SUPPORT / OPPOSITION :
Support
California Housing Council (co-sponsor)
Berkeley Property Owners Ass'n.
Minority Property Owners Ass'n.
North Valley Apartment Owners Ass'n.
Santa Barbara Rental Property Owners Ass'n.
Western Center on Law and Poverty
Western Manufactured Housing Communities Ass'n.
Opposition
California Apartment Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334