BILL ANALYSIS
SB 782
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 782 (Yee) - As Amended: June 10, 2010
As Proposed to be Amended
SENATE VOTE : 21-18
SUBJECT : Residential Tenancies: Domestic Violence
KEY ISSUES :
1)Should a tenant who is a victim of domestic violence, sexual
assault, or stalking be protected from eviction if the
eviction is based upon acts of domestic VIOLENCE AGAINST the
victim?
2)Should a tenant who is a victim of domestic violence, sexual
assault, or stalking, and has obtained a court order based on
one of those acts, be allowed to protect himself or herself by
changing the exterior locks on his or her dwelling?
FISCAL EFFECT : As currently in print this bill is key
non-fiscal.
SYNOPSIS
This two-year bill is premised on the fair and simple premise
that a victim of domestic violence should not be evicted from a
home based on the actions of a violent abuser. Unfortunately,
according to the author, too often victims are evicted from
their homes because of the "nuisance" created by the noise,
fighting, and police visits caused by the violent perpetrator.
Other studies suggest that many women fear calling police or
obtain injunctive relief because they are afraid that if
landlord knew of the domestic violence, then the landlord might
choose to evict. This bill was held in Committee last year when
it became apparent that there was no easy mechanism that would
permit a landlord to evict a violent abuser while permitting the
victim to remain in the tenancy undisturbed, at least not in a
way that respected the competing rights of the victim, the
alleged abuser, the landlord, and other tenants. After more
than a year of negotiation, this bill now presents a more modest
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but still important measure. Specifically, this bill would
prohibit a landlord from evicting a protected tenant based on
the acts of an abuser who is not a tenant, so long as the abuse
can be documented by court orders or police reports, as
specified. In addition, this bill would permit a tenant who is
a documented victim of domestic violence, sexual assault, or
stalking to demand that the landlord change the exterior locks,
since abusers have been known to return to the victim's home
notwithstanding an order to stay away. These lock changes
provide not only protection, but peace of mind. The most recent
version of the bill appears to address all, or nearly all, of
the objections raised by landlord groups to earlier versions of
this bill.
SUMMARY : Prohibits a landlord from terminating a tenancy based
upon an act or acts of domestic violence, sexual assault, or
stalking against the tenant or tenant's household member, if the
act or acts can be appropriately documented and the perpetrator
is not a tenant of the same dwelling unit as the tenant.
Permits a tenant to change locks of the dwelling unit, or
request the landlord to do so, as specified, if the tenant has a
restraining order against another person based on that other
person's acts of domestic violence, sexual assault, or stalking
against the tenant. Specifically, this bill :
1)Defines a "protected tenant" as a tenant who has obtained a
court order against another person based on acts of domestic
violence, sexual assault, or stalking, or, as specified, has
filed a police report alleging that the protected tenant or a
household member is a victim of domestic violence, sexual
abuse, or stalking.
2)Requires a landlord to change the exterior locks of a
protected tenant's dwelling unit upon written request of the
protected tenant not later than 24 hours after the protected
tenant gives the landlord a copy of a court order or a police
report issued or written within the last 180 days against a
person who is not a tenant in the same dwelling as the
protected tenant. Provides that if the landlord fails to
change the locks within 24 hours, or if the protected tenant
has failed to request the landlord to change the locks, the
protected tenant may change the lock without the landlord's
permission, as specified, notwithstanding any provision in the
lease to the contrary.
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3)Requires a landlord to change the exterior locks of a
protected tenant's dwelling unit upon written request of the
protected tenant not later than 24 hours after the protected
tenant gives the landlord a copy of a court order issued
within the last 180 days against a person who is a tenant in
the same dwelling as the protected tenant. Provides that if
the landlord fails to change the locks within 24 hours, or if
the protected tenant has failed to request the landlord to
change the locks, the protected tenant may change the lock
without the landlord's permission, as specified,
notwithstanding any provision in the lease to the contrary.
4)Provides that notwithstanding the prohibition against
unilaterally changing a tenant's locks in Civil Code Section
789.3, if the locks are changed pursuant to the provisions of
this bill, the landlord is not liable to a person excluded
from the dwelling unit.
5)Specifies that a tenant who is excluded from dwelling unit
under this bill remains liable under the lease with all other
tenants of the dwelling unit for rent as provided in the
lease.
6)Prohibits a landlord from terminating a tenancy or failing to
renew a tenancy based upon an act or acts against a tenant or
a member of a tenant's household member that constitute
domestic violence, sexual assault, or stalking if both of the
following apply:
a) The act or acts of domestic violence have been
documented by a protective court order based on allegations
of domestic violence, sexual assault, or stalking against
the tenant or a tenant's household member, or by a police
report alleging domestic violence, sexual assault, or
stalking against the tenant or tenant's household member.
Specifies that the court order or police report must have
been issued or written within the last 180 days.
b) The person against whom the protection order has been
issued or who was named in the police report is not a
tenant of the same dwelling unit as the tenant or household
member.
7)Notwithstanding the above, a landlord may terminate or decline
to renew a tenancy after the tenant has availed himself or
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herself of the protections afforded in this bill if all of the
following apply:
a) The tenant allows the person against whom the protection
order was issued or who was named in the police report to
visit the property.
b) The landlord reasonably believes that the presence of
the person against whom the protection order has been
issued or who was named in the police report poses a threat
to other tenants, either physically or to their right to
quiet possession, as specified.
c) The landlord previously gave at least three days notice
to correct the violation.
8)Provides that notwithstanding any provision of the lease to
the contrary, the landlord shall not be liable to any other
tenants for any action that arises due to the landlord's
compliance with the provisions of this bill.
9)Requires the Judicial Council, on or before January 1, 2012,
to develop a new form or amend an existing form that may be
used by parties to assert the grounds set forth in the
eviction provisions of this bill as an affirmative defense to
an unlawful detainer.
EXISTING LAW :
1)Permits a tenant or a household member who was a victim of
domestic violence, sexual assault, or stalking to terminate a
rental agreement and be discharged from rental payments due.
The tenant must provide the landlord with a copy of a
temporary restraining order, emergency protective order, or a
written report by a peace officer stating that the tenant or
household member has filed a police report alleging that the
tenant or household member is a victim of domestic violence,
sexual assault, or stalking. (Civil Code Section 1946.7.)
2)Permits a landlord to file an unlawful detainer action against
a tenant in order to evict him or her when, among other
things, the tenant has: (1) committed waste upon the premises
contrary to the conditions of the lease; or (2) committed or
maintained a nuisance upon the premises or permitted the
nuisance to be committed or maintained. (Code of Civil
Procedure Section 1161(4).)
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3)Permits a tenant to present evidence to support an affirmative
defense which, if proved, defeats the landlord's right to
possession. (Civil Code Section 1942.5.)
4)Provides, until January 1, 2012, that if a person commits an
act of domestic violence, sexual assault, or stalking against
another tenant on the premises there is a rebuttable
presumption that the person has committed a nuisance upon the
premises. This presumption does not apply if the victim or
his or her household member, other than the perpetrator, has
not vacated the premises. (Code of Civil Procedure Section
1161.)
COMMENTS : According to the author, this bill will prevent
victims of domestic violence from being unfairly evicted from
their homes based upon the actions of their abusers. According
to the author and supporters, victims of domestic violence
sometimes face the prospect of eviction on the grounds that the
acts of violence against them created a "nuisance" for which a
landlord could seek an unlawful detainer. For example,
neighbors and other tenants may complain of repeated police
calls or of loud noises that may accompany the acts of violence.
Unfortunately, permitting nuisance-based evictions in these
situations means that the domestic violence victim is victimized
twice: first by the abuser, and then by the landlord who evicts
the victim based on the acts of another.
This two-year bill is a carefully crafted compromise that seeks
to balance a complicated set of equities: the right of victims
of domestic violence not to lose their homes due to the actions
of others; the right of other tenants to the quiet enjoyment of
their units; the right of alleged abusers not to be evicted on
the basis of false allegations and to have the right to
challenge an eviction; and the right of landlords to evict
tenants who are breaking the law or creating a nuisance. Last
year's bill attempted to create an affirmative defense to an
unlawful detainer for victims of domestic violence. However,
that bill failed to address a number of complicated procedural
and substantive issues, especially when the victim and abuser
were both tenants of the same dwelling unit. For example, if a
victim successfully raised an affirmative defense to an unlawful
detainer, then both the abuser and the victim would be permitted
to remain. This situation created two problems: (1) First, the
landlord could not evict a person (the abuser) who was
committing unlawful acts and endangering other tenants; (2)
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Second, the victim would remain in the unit with the abuser
after having made accusations against the abuser in a court
proceeding, which could potentially put the victim at even
greater risk.
In light of these problems, the bill was amended near the end of
last session to permit a "partial eviction" that would allow the
landlord to evict the abuser while allowing the victim's tenancy
to remain undisturbed. However, this solution created as many
problems as it solved. In part these problems stemmed from the
fact that an unlawful detainer is not technically an "eviction."
Rather, it is an action by which the landlord seeks to recover
possession of the property. If the landlord prevails, then all
tenants, abuser and victim, must leave. If the victim prevails
on the grounds that she is a victim of domestic violence, the
unlawful detainer fails and both the abuser and the victim are
entitled to stay in the unit. This not only endangers the
victim, it also denies the landlord his or her reasonable right
(if not duty) to evict someone who is creating a nuisance and,
in the case of domestic violence and sexual assault, engaging in
unlawful activity on the premises. In sum, in the course of
last year's negotiations, it became apparent to stakeholders on
both sides of the issue that there was apparently no way to
evict the abuser and allow the victim to stay in a way that both
protected the due process rights of the alleged abuser and the
safety of the victim. Yet, any solution that did not allow for
the eviction of the abuser hurt the legitimate interests of the
landlord and other tenants.
Eviction Provisions Apply Only Where Abuser is not a Tenant . As
result, the author and sponsor reluctantly agreed to accept a
narrower bill that, while not perfect, would protect a
substantial number of persons (mostly women) who are abused by
former spouses or boyfriends who no longer live with the victim
but still come around and create havoc. By narrowing the
eviction protections only to cases where the abuser was not a
tenant, the bill avoided the complicated issue raised by last
year's bill: how to fairly and safely evict only the abuser
while allowing the victim to stay. The downside of this
solution is that the bill now only protects a narrower subset of
victims of domestic violence - that is, those who do not live
with their abusers.
Documentation of Victim Status : In order to qualify for an
exemption under this bill, the victim would need to present -
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most likely in his or her answer to the unlawful detainer -
evidence that he or she is a victim of domestic violence. This
evidence can be established either through possession of a
protective court order or a police report alleging domestic
violence, sexual assault, or stalking against the tenant of a
member of the tenant's household. The court order or police
report must have been issued or written with the past 180 days.
Eviction Must Be Based Upon An Act or Acts of Domestic Violence,
Sexual Assault, or Stalking . In discussions on last year's
bill, some landlord groups worried that tenants might abuse this
right by claiming to be victims in order to avoid eviction on
other grounds. However, the bill makes it quite clear that the
landlord is only restricted from terminating a tenancy if the
termination is "based upon an act or acts against a tenant that
constitute domestic violence . . . sexual assault . . . or
stalking." In other words, if a tenant fails to pay rent or
violates some other condition of the lease, the protection
provided by this bill will not apply even if the tenant has
documentation showing that he or she is a victim of domestic
violence. It is only when the landlord terminates the tenancy
because of problems created by the acts of the abuser - such as
loud noises that disturb other tenants, violence that may
threaten other tenants, or frequent police calls to quell
disturbances - that the victim may invoke the provisions of this
bill.
Lock Change Provisions : In addition to the eviction provisions
discussed above, this bill would also help to protect domestic
violence and assault victims by making it easier for them to
change the exterior locks on their dwelling units. Groups who
work with domestic violence victims note that even when victims
successfully obtain a restraining order against an abuser, the
abuser may often violate that order and continue to come to the
victim's dwelling. This bill, therefore, would make it easer
for victims of domestic violence, sexual assault, and stalking
to change the exterior locks on their dwellings. The bill
distinguishes between two scenarios: (1) when the abuser is a
co-tenant with the victim and (2) when the abuser is not a
tenant, but perhaps a former spouse or partner who may have a
key to unit. Under this bill a landlord would, upon written
request of the tenant, be required to change the locks within 24
hours after the tenant gives the landlord the proper
documentation that the tenant is a victim of domestic violence,
sexual assault, or stalking. (If the abuser is not a tenant,
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the victim may provide to the landlord either a court order or a
police report. If the abuser is a co-tenant, then the victim
must provide the landlord with a court order naming the
co-tenant; a police order will not suffice if the abuser is a
co-tenant.) If the landlord fails to change the locks within
the 24 hour period, then the tenant may change the locks so long
as the locks are of the same quality and a copy of the new key
is provided to the landlord as soon as reasonably possible.
Landlord Protections : Domestic violence situations often place
landlords in a very precarious position. On the one hand, as
the landlords have informed the Committee, they have no desire
to evict a tenant merely because he or she is a victim of
violence. Landlords, after all, generally want to keep their
tenants. On the other hand, when episodes of domestic violence
become severe, landlords have a duty to maintain safe premises
and ensure the other tenants' right to the quiet enjoyment of
their premises. When domestic violence reaches the point where
it is creating a nuisance, the landlord's only remedy is to
provide a notice to vacate followed up by an unlawful detainer
(UD) action. If the UD prevails, the landlord recovers
possession of his property and both the abuser and the victim,
and any other household members, must vacate. If the landlord
fails to bring an action, he or she could face potential
liability to other tenants for failure to evict a tenant who was
disturbing the quiet enjoyment of other tenants and possibility
even posing a threat to other tenants. In short, the landlord
must have some means of evicting persons who are engaging in
domestic violence in a unit, for such activity is not only a
nuisance, it is unlawful and potentially dangerous not only to
the victim, but to other tenants.
To partly address this concern, the author and sponsor have
agreed to take a number of amendments to assuage the landlord's
concern. First, the bill specifies that the landlord shall not
be liable to other tenants for any actions, or inactions, done
in compliance with the provisions of this bill. For example, if
a landlord fails to evict a tenant under the terms of this bill
and the domestic violence does not abate, the landlord would not
be liable to another tenant who alleged that the landlord's
failure to evict resulted in a loss of quiet enjoyment or a
diminution in the value of the rented property.
Landlords have also expressed concerns about how to address a
situation in which the tenant successfully invokes the
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provisions of this bill, but then the problem continues because
the abuser keeps coming back and creating problems. In order to
address this concern, the author and sponsor agreed to a
provision that would allow the landlord to terminate the tenancy
if the tenant successfully invokes the bill but then all of the
following occur: (1) the tenant allows the abuser to visit the
property; (2) the landlord reasonably believes that the abuser
poses a threat to other tenants, either physically or to their
right of quiet possession of the premises; and (3) the landlord
previously gave at least three days notice to correct the
violation. In short, these provisions give the landlord a
remedy if the victim invokes the provisions of this bill and
avoids eviction but the problem continues.
In conclusion this two-year bill reflects a long series of
negotiations between the author's staff, Committee staff,
landlord and tenant groups, and advocates for victims and
survivors of domestic violence. It cannot be a "perfect" bill.
Because of the complexities involved when both victim and abuser
are tenants, the anti-eviction provisions of the bill
necessarily only protect victims who are not co-tenants with
their abusers. However, this is still a significant change,
given that studies show that women who live alone are a
substantial subset of victims of domestic violence. (See e.g.
Elaine Zahand et. al., Nearly Four Million California Adults are
Victims of Intimate Partner Violence, UCLA Health Policy
Research Brief, April 2010, Exhibit 6) (Showing that single
women are as likely to be victims as married women; that
separated and divorced women are more likely to be victims of
domestic violence than women who live with their partner; and
that single women with children are one of the most likely
groups to be victimized.)
Proposed Author Amendments : The author wishes to take the
following amendments in this Committee. Most of the amendments
are technical. Others reflect the fact that the author has
agreed that changing locks where an abuser is also a tenant
should require a court order, not a court order or a police
report. Specifically, the author agrees to take the following
amendments in this Committee:
On page 5, line 7: delete "or is named in a police
report."
On page 5, lines 13-13: delete "or the police report
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that names that person."
On page 6 delete lines 18-23
On page 6 on line 25 delete everything after "order" and
delete lines 26-29.
On page 6, line 32: change (c) to (b)
On page 7, line 2: after "lawfully" insert "issued"
On page 7, line 22: change "willingly permits" to
"allows"
Page 7, line 25: change "premises" to "property."
ARGUMENTS IN SUPPORT : According to the California Partnership
to End Domestic Violence (CPEDV), "this bill will provide much
needed eviction protection to victims of domestic violence" and
ensure that abusers will be kept away from the rental property.
CPEDV believes "that this measure would protect the safety of
victims by empowering them to call law enforcement in the event
of a domestic violence incident or seek a restraining order
without the fear of being arbitrarily evicted." CPEDV, a
statewide coalition that has been operating for more than 30
years, claim that studies clearly show that families are being
evicted because of their status as victims of domestic
violence." Indeed, CPEDV cites one study, based on a survey of
39% of all U.S. cities, which found that domestic violence was
"a primary cause of homelessness," especially among women.
CPEDV notes that, at a time when the need for emergency shelters
is great, it is particularly important to protect victims who
want to stay in their homes.
The National Housing Law Project (NHLP) believes that this bill
will "prevent victims of domestic violence, sexual assault, and
stalking from being evicted because of the acts of violence
committed against them." NHLP, like CPEDV, argues that this
bill will encourage women to call police or seek restraining
orders without fear of being evicted. Furthermore, NHLP claims
that the provisions of the bill requiring lock changes will
offer added protection to women who have obtained a restraining
order against a co-tenant. Finally, NHLP points out that a
similar non-eviction provision in the Violence Against Women Act
(VAWA) has been successful in barring the eviction of Section 8
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tenants where the eviction is based on nuisances caused by the
acts of the abuser. According to NHLP, "VAWA has saved numerous
victims from homelessness." NHLP believes that "victims in
unsubsidized housing should be given similar protections."
The Los Angeles County District Attorney's Office supports this
measure for substantially the same reasons as those noted above,
but it adds that this measure "also makes the victim responsible
for obtaining a restraining order to prevent further acts of
violence by the perpetrator."
STATEMENTS OF CONCERN : Many of the landlord groups that
opposed this bill last year had not submitted letters of
opposition at the time of this writing, apparently because they
have been engaged in extensive and fruitful discussions with the
author's office. It appears that the most recent amendments
have addressed the major concerns raised by opponents last year.
First, as noted above, this bill would permit a landlord to
evict a tenant who has invoked rights under this bill but then
allows the problem to continue by allowing the abuser to return.
If that happens, and the landlord reasonably believes that the
abuser poses a threat to other tenants, the landlord may give
the tenant a three-day notice to either correct the problem or
vacate. Another issued raised by the landlords last year seems
to have been addressed in this bill. Specifically, the
landlords worried about possible forms of liability. First,
this bill would require the landlord to change the locks if the
victim possessed a court order naming a co-tenant. Landlords
feared that if they changed the locks on a tenant, then they
might be in violation of Civil Code Section 789.3, which
generally prevents a landlord from taking "self-help" measures
such as changing a lock to terminate a tenancy. More generally,
landlords were concerned that, since the tenant had a property
right in the rental unit, the landlord could not unilaterally
change the locks. In response to this, the author agreed to
take an amendment expressly stating that, not withstanding
Section 789.3, a landlord would not be liable to a person
excluded from the unit pursuant to the provisions of this bill.
Landlords also feared liability from other tenants if, under the
terms of this bill, the landlord failed to evict a tenant who
was creating a nuisance. That is, other tenants might complain
that the landlord is failing to protect their quiet enjoyment of
the premises, or in a rent control jurisdiction, the landlords
claim, a tenant could even seek a reduction in rent from a rent
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control board on the ground that the repeated domestic violence
and police calls have resulted in a diminution of the value of
their unit. To address these concerns, the author agreed to an
amendment stating that the landlord shall not be liable to any
other tenants for any action that arises from the landlord's
compliance with the provisions of this bill.
It is not clear at the time of this writing whether all of the
landlord groups have removed their opposition to this
substantially amended version. There are, at any rate, no
letters of opposition to the current version of the bill.
Recent Related Legislation . AB 2052 (Lieu, Chapter 440, Stats.
of 2008) authorizes a tenant to notify the landlord in writing,
and with supporting documentation, that he/she or a household
member, as defined, was a victim of an act of domestic violence,
sexual assault, or stalking, as defined, and intends to
terminate the tenancy. A tenant who quits the premises under
this provision is discharged from payment of rent for any period
following 30 days from the date of the notice.
REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco District Attorney, Kamala Harris (sponsor)
American Civil Liberties Union
California Partnership to End Domestic Violence
California Rural Legal Assistance Foundation
City and County of San Francisco, Department on the Status of
Women
Los Angeles County District Attorney's Office
National Housing Law Project
Western Center on Law & Poverty
Opposition (to present version)
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334