BILL ANALYSIS SB 1035 Page 1 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 SB 1035 Page 2 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 SB 1035 Page 3 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. SB 1035 Page 4 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 SB 1035 Page 5 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. SB 1035 Page 6 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 SB 1035 Page 7 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 SB 1035 Page 8 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) SB 1035 Page 9 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