BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session SB 1403 (Yee) As Amended August 6, 2012 Hearing Date: August 15, 2012 Fiscal: No Urgency: Yes TW SUBJECT Domestic Violence: Permanent Restraining Orders and Elder Abuse Orders DESCRIPTION Existing law allows a tenant to terminate his or her lease within 180 days of the issuance of a temporary restraining order, emergency protective order, or written report by a peace officer alleging that the tenant, or household member, is a victim of domestic violence, sexual assault, or stalking. Existing law also prohibits a landlord from terminating a tenancy or failing to renew a tenancy based upon an act or acts against a tenant or a tenant's household member that constitute domestic violence, sexual assault, or stalking if those acts have been documented by a temporary restraining order, emergency protective order, or written report by a peace officer. This bill would extend these tenant protections to victims of elder or dependent adult physical abuse. This bill would also add protective orders to the list of qualifying documents that a tenant may provide to a landlord to substantiate early termination of a lease. This bill is an urgency measure. BACKGROUND Victims of domestic violence, sexual assault, and stalking face numerous challenges when seeking to regain control of their lives. Depending on the situation, the victim may need to change his or her phone number, participate in the Safe at Home (more) SB 1403 (Yee) Page 2 of ? Program through the Secretary of State, or even move, to create a safe environment for themselves and their family. Victims who rent their home also face challenges in their ability to leave a dangerous environment if they are currently in a long-term lease. In response to concerns about the inability for victims to terminate their lease without liability, AB 2052 (Lieu, Ch. 440, Stats. 2008) allowed a tenant to terminate his or her lease within 60 days of the issuance of a temporary restraining order, emergency protective order, or written report by a peace officer alleging that the tenant, or household member, is a victim of domestic violence or stalking. Absent that protection, victims who relocated could still be subject to liability under the lease if the landlord did not agree to release the tenant from his or her obligations. Subsequently, AB 588 (V. Manuel Pérez, Ch. 76, Stats. 2011) increased the time period in which a tenant may provide a notice to terminate tenancy from 60 to 180 days of the issuance of a temporary restraining order, emergency protective order, or written report by a peace officer alleging that the tenant, or household member, is a victim of domestic violence or stalking. Additionally, SB 782 (Yee, Ch. 626, Stats. 2010) prohibited landlords from terminating or failing to renew a tenancy based upon a documented act or acts against a tenant or a tenant's household member that is a victim of domestic violence, sexual assault, or stalking. This bill would extend these tenant protections to a victim of elder or dependent adult physical abuse. This bill would also add protective order to the list of documents with which a tenant-victim may substantiate the necessity for early termination of a lease or rental agreement. CHANGES TO EXISTING LAW Existing law defines the rights and duties of landlord and tenants, including presumptions regarding the terms of the hiring, the lawful means of terminating a lease or rental agreements, and the remedies available to the respective parties in the event of a breach of a lease or rental agreement. (Civ. Code Sec. 1940 et seq.) Existing law provides that if a tenant or lessee of real property breaches the lease and abandons the property before the end of the term, the landlord may deem the lease terminated and seek damages, or continue to perform under the lease and seek SB 1403 (Yee) Page 3 of ? rent as it becomes due. (Civ. Code Sec. 1951.2; 250 LLC v. Photopoint Corp. (2005) 131 Cal.App.4th 703.) Existing law allows a tenant to terminate his or her tenancy if the tenant, or a household member, was the victim of domestic violence, sexual assault, or stalking. The notice to terminate a tenancy must be in writing, with one of the following attached: (1) copy of a temporary restraining order or emergency protective order, as specified; or (2) copy of a written report by a peace officer, as specified. (Civ. Code Sec. 1946.7(a)-(b).) Existing law requires the notice to terminate tenancy to be given within 180 days of the date that any order was issued, or within 180 days of the date that any written report was made, or the time period otherwise required for termination of tenancy. (Civ. Code Sec. 1946.7(c).) Existing law prohibits a landlord from terminating a tenancy or failing to renew a tenancy based upon an act or acts against a tenant or a tenant's household member that constitute domestic violence, sexual assault, or stalking if the acts of domestic violence, sexual assault, or stalking have been documented by a temporary restraining order, emergency protective order, or a copy of a written report by a peace officer. (Code Civ. Proc. Sec. 1161.3(a).) This bill would also allow a tenant to terminate his or her tenancy if the tenant or a household member was the victim of elder or dependent adult physical abuse. This bill would prohibit a landlord from terminating a tenancy or failing to renew a tenancy based upon an act or acts against a tenant or a tenant's household member that constitute elder or dependent adult abuse. This bill would add to the list of documents with which a tenant may substantiate the need for early termination of a lease or rental agreement based upon domestic violence, sexual assault, or stalking obtains a protective order. This bill contains an urgency clause. COMMENT 1. Stated need for the bill SB 1403 (Yee) Page 4 of ? According to the author: Existing law allows victims of certain violent acts to terminate a tenancy before the end of the tenancy agreement to allow them to leave a potentially dangerous environment, however when the list of vulnerable victims was constructed it left out victims of elder and dependent adult abuse. The acts these victims have suffered are consistent with the acts of domestic violence, sexual assault, or stalking, which are listed in the existing code. The list of documentation that is acceptable to end a tenancy is a temporary restraining order, emergency protective order, or a report by a peace officer. This bill will add "protective order" to this list. 2. Extending existing tenant protections to victims of elder or dependent adult abuse Current law allows a victim of domestic violence, sexual assault, or stalking to break a rental or lease agreement in order to secure safety for himself or herself and the family. Current law also prohibits a landlord from evicting a tenant who is a victim of domestic violence, sexual assault, or stalking, which has been documented through a temporary restraining order, emergency protective order, or written report by a peace officer. This bill would extend these provisions to victims of elder or dependent adult physical abuse. In support of this bill, the National Housing Law Project argues: As an example of why SB 1403 is needed, in one case an elderly woman had been raped by her caretaker but was too frightened and intimidated to report the incident to police. A judge granted the woman an elder abuse restraining order against the caretaker based on other abusive conduct. Unfortunately, the landlord would not accept the elder abuse restraining order as sufficient proof for ending the woman's lease, because this type of order is not included in Civil Code ÝSection] 1946.7. Currently, the code lists only domestic violence restraining orders, civil harassment restraining orders, and juvenile restraining orders as acceptable documentation for ending the lease. This led to unnecessary stress for the woman, who needed to relocate for her mental wellbeing and had to retain SB 1403 (Yee) Page 5 of ? an attorney to negotiate with the landlord to end the lease. By extending housing protections to victims who have obtained elder abuse restraining orders, SB 1403 would assist some of the state's most vulnerable victims in resolving housing matters. In many cases, these victims may not have a domestic violence restraining order or other proof currently required under the housing laws, because an elder abuse restraining order provides more appropriate relief based on the abuse that these victims are experiencing. SB 1403 also would ensure that our housing laws consistently protect abuse victims of all ages. It should be noted that, as with victims of domestic violence, sexual assault, or stalking, tenants who are victims of elder or dependent adult abuse seeking to terminate their rental or lease agreements early would be subject to certain requirements and restrictions discussed below. a. Tenant may notify landlord of status as victim of elder or dependent adult physical abuse; documentation required This bill would provide relief to a tenant who provides written notice to the landlord that he or she or a household member was a victim of elder or dependent adult physical abuse. If the tenant has a valid temporary restraining order, emergency protective order, protective order, elder or dependent adult abuse order, or a written report by a law enforcement agency or officer, the tenant may terminate the rental agreement and quit the premises. The notice to terminate the rental agreement must be given within 180 days of the date a temporary restraining order, emergency protective order, or elder or dependent abuse order was issued, or within 180 days of the date that written documentation was provided by the law enforcement agency. b. Tenant to pay rent for the 30 days after notice to terminate is given, then is released from rent obligations without penalty If the tenant gives the notice in writing, provides documentation as required, and gives the notice of termination of tenancy within the required 180 days, existing law would require the tenant to pay rent only for the 30 days following the date notice of termination to the landlord was given. SB 1403 (Yee) Page 6 of ? After that, the tenant would be released from the obligation to pay rent under the rental agreement or under Civil Code Section 1946. Section 1946 renews a term of tenancy for the same period implied by law if the landlord accepts rent from the tenant, unless either party gives written notice at least as long before the expiration of the term as the term of the hiring itself. Section 1946 also allows for the parties to terminate the tenancy at any given time by giving not less than 30-days' notice before the expiration of the term that is on a month-to-month basis. c. If property is rented prior to end of 30-day period, rent is prorated Under Civil Code Section 1946.7(e), if during the 30-day period after the notice of termination of tenancy was given, the tenant quits the premises and the landlord then lets the property to another party, the amount of rent due for the premises shall be prorated, and existing law on security deposits applies. For example, if a tenant-victim gives notice on June 25 that she is terminating her lease, the tenant would still be as responsible as the abuser for the rent for the 30-day period following the date the notice of termination of tenancy is given to the landlord, but would not be responsible for any rent afterwards, even though the lease or rental agreement is for a longer period. The landlord would have to look to the abuser-tenant for enforcement of the rest of the lease or rental agreement. d. Relief from rent obligation applies only to tenant or household member with status and to his or her family Existing law expressly states that the relief provided to victims of domestic violence, sexual assault, or stalking would be available only to such a tenant and his or her household members, and other tenants who are parties to the rental agreement would still have to fulfill their obligations under that rental agreement. This bill would apply the same limitations to tenants that are victims of elder or dependent adult abuse. As discussed above, existing law provides a balance between protections for victims of domestic violence, sexual abuse, and stalking, while maintaining protections for landlords. In SB 1403 (Yee) Page 7 of ? support of extending these provisions to victims of elder and dependent adult abuse, the California Partnership to End Domestic Violence argues that "adding elder abuse orders recognizes the vulnerability of elder victims. These common-sense changes included in SB 1403 will increase the ability for victims to access these protections and find safety." As a matter of public policy, elder and dependent adult abuse victims should be to able utilize tenant protections provided under existing law for other abuse victims in order to secure safer accommodations. 3. Clarifying protective orders in the list of authorized documents This bill would add protective order to the list of documents that a tenant can provide to a landlord to substantiate domestic violence, sexual assault, or stalking for early termination of a lease or rental agreement. Under existing law, a protective order includes restraining orders (temporary or permanent) enjoining specific acts of abuse, excluding a person from a dwelling, or enjoining other specified behavior. (Fam. Code Sec. 6218.) Additionally, protective order includes elder or dependent adult abuse orders. (Welf. & Inst. Code Sec. 15657.03(b)(3).) As discussed above, current law provides that a tenant who secures a temporary restraining order or emergency protective order may terminate their tenancy early without penalties the tenant would otherwise incur for early termination. However, a permanent restraining order is not specifically included in the list of documents a tenant may provide to a landlord for early lease or rental agreement termination. Yet, a permanent restraining order is a protective order, as are temporary restraining orders, emergency protective orders, and elder and dependent adult abuse orders. This bill would clarify that a protective order (temporary or permanent) may be used to substantiate the necessity for a tenant to terminate a lease or rental agreement and, thus, would provide increased protection for victims of domestic violence, sexual assault, stalking, and elder or dependent adult abuse. 4. Urgency measure The bill contains an urgency clause, making it effective immediately upon passage and the Governor's signature. The rationale provided for the urgency is that it is necessary for SB 1403 (Yee) Page 8 of ? the immediate preservation of the public peace, health, or safety to ensure improved protection against domestic violence and elder abuse in California. 5. Author's amendment Existing law prohibits a landlord from terminating tenancy based upon domestic violence, sexual assault, or stalking. In the event a landlord files an unlawful detainer (eviction) action against a victim, the victim can assert affirmative defenses based upon documented domestic violence, sexual assault, or stalking. This bill would extend these affirmative defenses to a tenant who is a victim of elder or dependent adult abuse. Existing law, by January 1, 2012, requires the Judicial Council of California to develop or revise a form that may be used by the tenant to assert a responsive pleading setting forth an affirmative defense to an unlawful detainer action brought by a landlord against a tenant. Since this bill would authorize a tenant who is the victim of elder or dependent adult abuse to assert affirmative defenses against eviction proceedings, the author offers an amendment to require the Judicial Council of California to revise the responsive pleading form to incorporate the provisions of this bill by January 1, 2014. Author's amendment : On page 5, at line 23, remove and replace "2012" with "2014" Support : California Partnership to End Domestic Violence; Crime Victims United California; National Housing Law Project Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : AB 588 (V. Manuel Pérez, Ch. 76, Stats. 2011) See Background. SB 782 (Yee, Ch. 626, Stats. 2010) See Background. SB 1403 (Yee) Page 9 of ? AB 2052 (Lieu, Ch. 440, Stats. 2008) See Background. Prior Vote : Not relevant. **************