BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1035
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          Date of Hearing:   June 29, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    SB 1035 (Hancock) - As Amended:  June 10, 2010

           SENATE VOTE  :  22-6

           SUBJECT  :  MUNICIPAL UTILITY DISTRICT: UTILITY CHARGES:  
          DELINQUENCIES
           
          KEY ISSUE  :  SHOULD MUNICIPAL UTILITY DISTRICTS HAVE THE  
          AUTHORITY TO IMPOSE A LIEN AGAINST REAL PROPERTY FOR UNPAID  
          WATER AND SEWER FEES?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill, co-sponsored by East Bay Municipal Utility District  
          (EBMUD) and Alameda County, seeks to establish new procedures  
          for the collection of delinquent fees owed to municipal utility  
          districts (MUD).  According to EBMUD, unlike many water  
          utilities that have the authority to record a lien on a property  
          when water bills are not paid, it is barred by existing law by  
          virtue of the fact that it is the only MUD that provides  
          residential water and sewer services.  Without the lien remedy  
          available, EBMUD contends it has no option when water bills are  
          not paid but to terminate water service to the property or  
          unfairly ask its other ratepayers to subsidize the cost of  
          service to the delinquent account holders.  Consequently, this  
          bill would allow a MUD that furnishes water or sewer service to  
          residential property to obtain a lien on the property for  
          non-payment of delinquent fees and other charges.  This bill  
          also authorizes a MUD to collect delinquent fees and other  
          charges, plus interest and penalties thereon, on the tax roll in  
          the same manner as property taxes, including any delinquencies  
          for services rendered to a lessee, tenant, or subtenant, except  
          on properties where the account was established by the tenant.   
          The bill establishes a number of due process requirements that  
          the MUD must comply with before it may apply delinquent charges  
          to the tax roll.  These provisions would sunset in 2016, after  
          five years, with each MUD that places a lien required to submit  
          a specified report to the Legislature by January 1, 2015.  This  
          bill passed the Senate by a 22-6 vote and there is no registered  








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          opposition. 

           SUMMARY :  Authorizes a municipal utility district (MUD) to  
          collect delinquent utility charges by charging the delinquent  
          fees to the property owner's tax roll, as specified, and to  
          place a lien on the property for unpaid water and sewer service.  
           Specifically,  this bill  :    

          1)Eliminates from existing law the restriction against using  
            utility liens against property owners to collect delinquent  
            fees or charges for the furnishing of water or sewer service  
            to residential property, while maintaining the restriction  
            that applies to furnishing of electric service.

          2)Authorizes a MUD, by resolution or ordinance, to collect on  
            the tax roll, delinquent fees, tolls, rates, rentals, or other  
            charges and any interest and penalties thereon, including any  
            delinquencies for services rendered to a lessee, tenant, or  
            subtenant, in the same manner as property taxes, except on  
            properties where the account was established by the tenant.

          3)Requires a MUD seeking to apply delinquent utility charges to  
            the tax roll to:

             a)   Prepare and file an annual report of delinquent charges  
               for each affected parcel; 

             b)   Give published and mailed notice of the filing of the  
               report and the time and place for a public hearing;

             c)   Hear and consider objections or protests of the report  
               at the public hearing and potentially revise the report;  
               and, 

             d)   Provide, by August 10 of each year, a final report to  
               the county recorder, containing specified accounting  
               information, to be added to the current tax assessment  
               roll. 

          4)Authorizes the MUD to recover any delinquent fees, tolls,  
            rates, rentals, or other charges, together with interest and  
            penalties thereon, including any delinquent fees, tolls,  
            rates, rentals, or other charges for services rendered to a  
            lessee, tenant, or subtenant.  Provides that, from the time of  
            recordation of the certificate, the amount of the delinquent  








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            fees plus interests and penalties constitutes a lien against  
            the affected real property of the delinquent property owner in  
            that county, having the force, effect, and priority of a  
            judgment lien.

          5)Requires the MUD to file a release of the lien within 30 days  
            of receipt of payment of the delinquent charges.

          6)Prohibits a MUD from recovering on the tax roll any delinquent  
            fees, tolls, rates, rentals, or other charges for services for  
            commercial use to a commercial tenant under an account  
            established by the commercial tenant, from any subsequent  
            tenant or the property owner, due to nonpayment of charges by  
            a previous commercial tenant, except that this does not apply  
            to master-metered accounts.

          7)Requires the MUD to reimburse the county for the reasonable  
            expenses incurred by the county under this bill.

          8)Provides that the remedies in this bill are cumulative, and  
            the district may pursue the remedies alternatively or  
            consecutively.

          9)Requires any MUD that places a lien on a property for water or  
            sewer service pursuant to this measure on or before December  
            31, 2014, to submit to the Assembly and Senate Committees on  
            Judiciary and to the Assembly and Senate Committees on Local  
            Government, on or before January 1, 2015, a report containing  
            the following information:

             a)   The total number of liens created under this section for  
               water or sewer service and the total dollar amount of those  
               liens; and, 

             b)   The overall effectiveness of the liens and any problems  
               associated with the use of those liens.

          10)Clarifies that this bill does not negate certain provisions,  
            specified by existing PUC Code Section 1822.6, that, among  
            other things, prohibit the use of utility liens to recover  
            delinquent fees and charges for the furnishing of services for  
            residential use to a tenant.

          11)Sunsets these provisions as of January 1, 2016. 









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           EXISTING LAW  :  

          1)Authorizes the MUD board of directors to provide for the  
            collection of fees, tolls, rates, rentals, or other charges in  
            any lawful manner, and may provide for collection by action at  
            law, and further provides that all remedies for the collection  
            and enforcement thereof are cumulative and may be pursued  
            alternatively or consecutively as the board determines.   
            Authorizes the board to provide for the collection of an  
            additional penalty, interest amount, or both, as specified.   
            (Public Utilities Code Section 12811.)

          2)Authorizes a MUD, by resolution or ordinance, to require the  
            owner of record of real property within the MUD to pay the  
            fees, tolls, rates, rentals, or other charges for services  
            rendered to a lessee, tenant, or subtenant.  Further provides  
            that those fees, tolls, rates, rentals, and other charges that  
            have become delinquent, together with interest and penalties  
            thereon, are a lien on the property when a certificate is  
            filed in the office of the county recorder.  Provides that the  
            lien has the force, effect, and priority of a judgment lien,  
            except that no lien may be created on any publicly owned  
            property.  (Public Utilities Code Section 12811.1(a).)

          3)Provides that a lien attaches when the MUD files for  
            recordation in the office of the county recorder a certificate  
            specifying the amount of the delinquent fees, tolls, rates,  
            rentals, or other charges together with interest and penalties  
            thereon; the name of the owner of record 
          of the property to which services were rendered by the district;  
            and, the legal description of the property.  Further provides  
            that within 30 days of receipt of payment of all amounts due,  
            including recordation fees paid by the MUD, the MUD shall file  
            for recordation a release of the lien.  (Public Utilities Code  
            Section 12811.1(b).)

          4)Provides that the authority of the MUD to seek and collect on  
            a lien against the owner of record of real property within the  
            MUD does not apply to delinquent fees or charges for the  
            furnishing of water or sewer service to residential property,  
            or electrical service.  Furthermore ((Public Utilities Code  
            Section 12811.1(d).)

          5)Prohibits a MUD from owning or operating a public utility  
            furnishing services for residential use to a tenant under an  








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            account established by the tenant from seeking to recover any  
            charges or penalties for the furnishing of services to, or for  
            the tenant's residential use from, any subsequent tenant or  
            the property owner due to nonpayment of charges by a previous  
            tenant.  (Public Utilities Code Section 12822.6(b).)

          6)Specifies the report, notice, and hearing requirements that  
            must be carried out before a community services district (CSD)  
            can use certain collection and enforcement methods, including  
            seeking a lien against the property.  (Government Code Section  
            61115.)

           COMMENTS  :  This bill, sponsored by East Bay MUD and Alameda  
          County, seeks to establish new procedures for the collection of  
          delinquent fees owed to municipal utility districts.  First,  
          this bill would allow a MUD that furnishes water or sewer  
          service to residential property to obtain a lien on the property  
          for failure of the property owner to pay off delinquent fees and  
          other charges.  Secondly, this bill authorizes a MUD to collect  
          delinquent fees and other charges, plus interest and penalties  
          thereon, on the tax roll in the same manner as property taxes.   
          The MUD could collect on the tax roll any delinquencies for  
          services rendered to a lessee, tenant, or subtenant, except on  
          properties where the account was established by the tenant.

           Background on Municipal Utility Districts:   According to the  
          co-sponsor, EBMUD, there are only five MUDs statewide, serving  
          the East Bay, Lassen, Sacramento, South Placer, and Southern San  
          Joaquin.  MUDs can provide various utility services, including  
          electricity, water, sewer, garbage disposal, transportation, and  
          communications.  Currently, only East Bay MUD (EBMUD) and South  
          Placer MUD provide sewer service, and only EBMUD also provides  
          water service to residential customers.

           Co-sponsor EBMUD's stated need for the bill.   According to the  
          co-sponsor, EBMUD, in 2009 there were over 7,000 delinquent  
          accounts totaling nearly $3 million in unpaid charges in the  
          areas it serves.  While the number of delinquent accounts has  
          been relatively steady in recent years, the amount of the  
          delinquencies has risen sharply and has more than doubled since  
          2006.  As co-sponsor, EBMUD explains in its letter of support,  
          this bill is needed to give EBMUD authority to use the lien  
          remedy it currently lacks in order to increase collection of  
          these delinquent utility accounts.









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               Unlike many water utilities that have the authority to  
               record a lien on a property when water bills are not  
               paid, EBMUD cannot.  When water bills are not paid,  
               EBMUD has no option but to terminate water service to  
               the property or unfairly ask its other ratepayers to  
               subsidize the cost of service to the delinquent  
               account holders.  Terminating service to the property  
               unfairly punishes tenants who have paid for and are  
               continuing to pay for utility services as part of  
               their rent.  Tenants have no control over whether the  
               property owner pays for utility bills for services  
               provided.

               A change in law is needed to provide EBMUD with the  
               same authority already vested with other water  
               utilities in the state to record a lien for  
               nonpayment.  A lien places the obligation for payment  
               on the responsible party without unduly penalizing  
               other ratepayers.

           The connection between continued water service and reducing  
          blight in neighborhoods.   According to the co-sponsor, Alameda  
          County (County), it is experiencing a sharp increase in the  
          occurrences of blight in the County.  According to the County:

               Blighted property can lower the values of nearby  
               properties, decrease safety and impact area  
               businesses. The decay of an abandoned property not  
               only affects the property itself, but can also affect  
               the livability of the entire community.  Once it gains  
               a foothold, blight can spread quickly through a  
               neighborhood that is demoralized by neglect, and is  
               difficult to stop.  One of the best ways to avoid  
               crippling blight and the associated economic impacts  
               on businesses and the community is to prevent vacant  
               buildings from ever appearing abandoned.  This can be  
               as simple as maintaining the exterior.  Caring for the  
               grounds of vacant properties gives the appearance of  
               occupancy and serves as an excellent deterrent to  
               blight-related crime.

          Supporters, including the East Bay Economic Development Alliance  
          and Berkeley Chamber of Commerce, contend that "a brown lawn and  
          dead vegetation signals no one is watching and the property is  
          ripe for abuse," while a healthy landscape tells people that the  








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          property is under someone's care.  They believe that this bill  
          might help reduce blight by keeping the garden hose and  
          automatic sprinklers functional for the purpose of helping  
          maintain healthy exterior plants and lawns at these properties.

           New Authority For Municipal Utility Districts To Impose Liens  
          Against Property For Unpaid Water and Sewer Fees.   This bill  
          would additionally delete a provision under existing law that  
          prevents a municipal utility district from placing a lien on a  
          property for the delinquent fees or charges for the furnishing  
          of water or sewer service to lessees and tenants of residential  
          property.  That prohibition was enacted in 1986 with respect to  
          both water and electrical service, and was expanded in 1998 to  
          cover sewer service.  It is believed that East Bay MUD is the  
          only municipal utility district that provides water and sewer  
          service at the residential level, and therefore the only current  
          MUD that would be covered by the deletion of the existing  
          prohibition.  This provision is not limited to properties  
          acquired by foreclosure or to those where the landlord collects  
          money from the tenant for utility services.  However, it is  
          believed that allowing for the imposition of a lien against the  
          property will be a disincentive for landlords to fail to pay the  
          utility district because the landlord will not thereby be able  
          to avoid responsibility for the unpaid services. 

          The bill does not specify a minimum delinquency threshold before  
          a lien may be created, but it is believed that EBMUD will use  
          the authority responsibly.  The bill sunsets after five years  
          and requires a report to this Committee, the Senate Judiciary  
          Committee, and the Assembly and Senate Committees on Local  
          Government regarding the total number of liens created and the  
          overall effectiveness of, or problems with, the use of these  
          liens.

           Notice and Hearing Requirements Before Applying Delinquent  
          Charges to the Property Tax Roll.   This bill establishes a  
          number of procedural requirements that the MUD must comply with  
          before it may apply delinquent charges to the tax roll.  First,  
          the MUD must prepare and file an annual report describing and  
          itemizing the delinquent charges for each affected parcel.  The  
          MUD must then give published and mailed notice of the filing of  
          the report and the time and place for a public hearing.  At the  
          public hearing, the MUD board of directors must hear and  
          consider objections or protests of the report, and make any  
          revisions it feels are necessary.  Finally, the MUD must  








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          provide, by August 10 of each year, a final report to the county  
          recorder, containing specified accounting information, to be  
          added to the current tax assessment roll.

          According to the author, these procedural requirements mirror  
          those already approved by the Legislature for use by the board  
          of directors of a community services district to enforce and  
          collect on the tax roll certain rates and other charges for  
          services and facilities that the district provides, pursuant to  
          Government Code Section 61115(b).

           Previous Legislation:   AB 1333 (Hancock) of 2008 would have  
          required legal owners of residential rental property to pay  
          utility charges when they acquire the property after foreclosure  
          and the property is subject to a rental agreement under which  
          the tenant pays the landlord for utilities.  AB 1333 would have  
          also deleted language that currently prohibits a MUD providing  
          water or sewer services to residential property from placing a  
          lien on property for delinquent fees or charges.  The bill was  
          vetoed by the Governor, whose veto message, in part, stated:

               This bill takes the wrong approach of potentially  
               increasing the costs associated with foreclosed  
               property by allowing utility liens for water and  
               sewer, and allows utilities to benefit during a time  
               of financial hardship for many property owners.  This  
               bill could further have an adverse economic impact on  
               California as it may complicate and impede the sales  
               of foreclosed property or result in more evictions  
               upon sale of the foreclosed property.  By requiring  
               lenders and legal owners of foreclosed property to  
               assume the responsibility for utility payments, this  
               bill may increase the financial costs associated with  
               buying foreclosed property.  

          This bill is narrower than AB 1333 because it does not impose  
          obligations on lenders or legal owners of foreclosed property to  
          pay the utilities provided to tenants following a foreclosure in  
          certain circumstances specified by that bill.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          County of Alameda (co-sponsor)








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          East Bay Municipal Utility District (EBMUD) (co-sponsor)
          Berkeley Chamber of Commerce
          Coalition of California Utility Employees
          East Bay Economic Development Alliance
          Oakland Metropolitan Chamber of Commerce
          California Special Districts Association
           
            Opposition 
           
          None on file


           Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334