BILL NUMBER: AB 265 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2011
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 7, 2011
An act to amend Section 1161 1179 of
the Code of Civil Procedure, relating to tenancies.
LEGISLATIVE COUNSEL'S DIGEST
AB 265, as amended, Ammiano. Tenancies: unlawful detainer.
Existing law specifies that a tenant is guilty of unlawful
detainer upon default in the payment of rent under the lease after
receipt of 3 days' notice of that violation and failure to correct
it. Existing law authorizes the court to relieve a tenant
against the forfeiture of a lease or rental agreement in case of
hardship, and also grants a court the discretion to relieve any
person against forfeiture on its own motion.
This bill would increase the time of the notice period
from 3 to 14 days require a court to relieve a tenant
against the forfeiture of a lease or rental agreement if the tenant
pays the amount of rent in arrears, the amount of any
subsequent rent that has become due, and the reasonable costs of the
proceedings .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1179 of the Code of
Civil Procedure is amended to read:
1179. (a) The court may relieve a tenant
against a forfeiture of a lease or rental agreement, whether written
or oral, and whether or not the tenancy has terminated, and restore
him or her the tenant to his or her
former estate or tenancy, in case of hardship, as provided in Section
1174. The court has the discretion to relieve any person against
forfeiture on its own motion.
An
(b) An application for relief
against forfeiture may be made at any time prior to restoration of
the premises to the landlord. The application may be made by a tenant
or subtenant, or a mortgagee of the term, or any person interested
in the continuance of the term. It must
Notice shall be made upon petition, setting forth the facts
upon which the relief is sought, and shall be verified by
the applicant. Notice of the application, with a copy of the
petition, must shall be served at least
five days prior to the hearing on the plaintiff in the judgment, who
may appear and contest the application. Alternatively, a person
appearing without an attorney may make the application orally, if the
plaintiff either is present and has an opportunity to contest the
application, or has been given ex parte notice of the hearing and the
purpose of the oral application. In no case shall the application or
motion be granted except on condition that full payment of rent due,
or full performance of conditions or covenants stipulated, so far as
the same is practicable, be made.
(c) (1) In addition to any discretionary relief from forfeiture
available under this chapter, in cases of eviction for nonpayment of
rent of a residential tenant who is being evicted from his or her
principal place of residence, the court shall relieve the tenant
against a forfeiture of a lease or rental agreement, whether written
or oral, and whether or not the tenancy has terminated, and restore
the tenant to his or her former estate or tenancy, if the tenant pays
the following into the court for the landlord:
(A) The amount of rent in arrears, as specified in the three days'
written notice requiring payment of rent.
(B) Any subsequent rent that has become due.
(C) The reasonable costs of the proceedings.
(2) For purposes of this subdivision, "reasonable costs of the
proceedings" shall include reasonable attorney's fees. However,
attorney's fees shall not exceed three hundred fifty dollars ($350)
if the tenant has paid the amounts specified in this subdivision
prior to the commencement of trial.
(3) An application for relief under this subdivision may be made
at any time prior to the restoration of the premises to the landlord.
SECTION 1. Section 1161 of the Code of Civil
Procedure, as amended by Section 5 of Chapter 244 of the Statutes of
2009, is amended to read:
1161. A tenant of real property, for a term less than life, or
the executor or administrator of his or her estate heretofore
qualified and now acting or hereafter to be qualified and act, is
guilty of unlawful detainer:
1. When he or she continues in possession, in person or by
subtenant, of the property, or any part thereof, after the expiration
of the term for which it is let to him or her; provided the
expiration is of a nondefault nature however brought about without
the permission of his or her landlord, or the successor in estate of
his or her landlord, if applicable; including the case where the
person to be removed became the occupant of the premises as a
servant, employee, agent, or licensee and the relation of master and
servant, or employer and employee, or principal and agent, or
licensor and licensee, has been lawfully terminated or the time fixed
for occupancy by the agreement between the parties has expired; but
nothing in this subdivision shall be construed as preventing the
removal of the occupant in any other lawful manner; but in case of a
tenancy at will, it must first be terminated by notice, as prescribed
in the Civil Code.
2. When he or she continues in possession, in person or by
subtenant, without the permission of his or her landlord, or the
successor in estate of his or her landlord, if applicable, after
default in the payment of rent, pursuant to the lease or agreement
under which the property is held, and 14 days' notice, in writing,
requiring its payment, stating the amount which is due, the name,
telephone number, and address of the person to whom the rent payment
shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment
(provided that, if the address does not allow for personal delivery,
then it shall be conclusively presumed that upon the mailing of any
rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the
date posted, if the tenant can show proof of mailing to the name and
address provided by the owner), or the number of an account in a
financial institution into which the rental payment may be made, and
the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or
if an electronic funds transfer procedure has been previously
established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon him or her
and if there is a subtenant in actual occupation of the premises,
also upon the subtenant.
The notice may be served at any time within one year after the
rent becomes due. In all cases of tenancy upon agricultural lands,
where the tenant has held over and retained possession for more than
60 days after the expiration of the term without any demand of
possession or notice to quit by the landlord or the successor in
estate of his or her landlord, if applicable, he or she shall be
deemed to be holding by permission of the landlord or successor in
estate of his or her landlord, if applicable, and shall be entitled
to hold under the terms of the lease for another full year, and shall
not be guilty of an unlawful detainer during that year, and the
holding over for that period shall be taken and construed as a
consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by
subtenant, after a neglect or failure to perform other conditions or
covenants of the lease or agreement under which the property is held,
including any covenant not to assign or sublet, than the one for the
payment of rent, and three days' notice, in writing, requiring the
performance of such conditions or covenants, or the possession of the
property, shall have been served upon him or her, and if there is a
subtenant in actual occupation of the premises, also, upon the
subtenant. Within three days after the service of the notice, the
tenant, or any subtenant in actual occupation of the premises, or any
mortgagee of the term, or other person interested in its
continuance, may perform the conditions or covenants of the lease or
pay the stipulated rent, as the case may be, and thereby save the
lease from forfeiture; provided, if the conditions and covenants of
the lease, violated by the lessee, cannot afterward be performed,
then no notice, as last prescribed herein, need be given to the
lessee or his or her subtenant, demanding the performance of the
violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this
chapter, to obtain possession of the premises let to a subtenant or
held by a servant, employee, agent, or licensee, in case of his or
her unlawful detention of the premises underlet to him or her or held
by him or her.
4. Any tenant, subtenant, or executor or administrator of his or
her estate heretofore qualified and now acting, or hereafter to be
qualified and act, assigning or subletting or committing waste upon
the demised premises, contrary to the conditions or covenants of his
or her lease, or maintaining, committing, or permitting the
maintenance or commission of a nuisance upon the demised premises or
using the premises for an unlawful purpose, thereby terminates the
lease, and the landlord, or his or her successor in estate, shall
upon service of three days' notice to quit upon the person or persons
in possession, be entitled to restitution of possession of the
demised premises under this chapter. For purposes of this
subdivision, a person who commits an offense described in subdivision
(c) of Section 3485 of the Civil Code, or subdivision (c) of Section
3486 of the Civil Code, or uses the premises to further the purpose
of that offense shall be deemed to have committed a nuisance upon the
premises.
5. When he or she gives written notice as provided in Section 1946
of the Civil Code of his or her intention to terminate the hiring of
the real property, or makes a written offer to surrender which is
accepted in writing by the landlord, but fails to deliver possession
at the time specified in that written notice, without the permission
of his or her landlord, or the successor in estate of the landlord,
if applicable.
As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in
subdivision (b) of Section 1940 of the Civil Code.
This section shall become operative on January 1, 2012.