BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1403
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          (  Without Reference to File  )

          SENATE THIRD READING
          SB 1403 (Yee)
          As Amended August 29, 2012
          Majority vote 

           SENATE VOTE  :35-0  
           
           JUDICIARY           8-0                                         
           
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          |Ayes:|Wieckowski, Wagner,       |     |                          |
          |     |Alejo, Dickinson, Feuer,  |     |                          |
          |     |Gorell, Huber, Monning    |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           SUMMARY  :  Expands an existing law that permits tenants who are 
          victims of domestic violence, sexual assault, or stalking to 
          terminate a tenancy to include victims of elder abuse, and adds 
          a protective order to the list of documents that may be used by 
          the tenant as evidence of the underlying abuse.  Specifically, 
           this bill  :  

          1)Includes abuse of an elder or a dependent adult, as defined, 
            among the acts for which a tenant may terminate a tenancy, as 
            specified, so long as the tenant provides a copy of a 
            lawfully-issued temporary restraining order, emergency 
            protective order, or protective order, or a copy of a written 
            report by a police officer, as specified. 

          2)Adds "protective order" to the list of documents that a tenant 
            seeking to terminate a tenancy may use to document a claim of 
            domestic violence, sexual assault, stalking, or elder or 
            dependent adult abuse.   

          3)Changes the date, from January 1, 2012, to January 1, 2014, by 
            which the Judicial Council must create a specified form that a 
            tenant may use to assert an affirmative defense to an unlawful 
            detainer. 

           EXISTING LAW  : 









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          1)Allows a tenant to notify the landlord that he or she or a 
            household member was a victim of domestic violence, sexual 
            assault, or stalking, and that the tenant intends to terminate 
            the tenancy.  

          2)Requires that the above notice shall be in writing and 
            attached to one of the following documents: 

             a)   A copy of a temporary restraining order or emergency 
               protective order that was lawfully issued and that protects 
               the tenant or household member from further domestic 
               violence, sexual assault, or stalking; or,

             b)   A copy of a written report by a peace officer employed 
               by a state or local law enforcement agency stating that the 
               tenant or household member is a victim of domestic 
               violence, sexual assault, or stalking.  

          1)Requires that the notice to terminate a tenancy, as described 
            above, must be given within 180 days of the date that an order 
            was issued or the peace officer report was made.  Specifies 
            that if the notice is provided as required, the tenant shall 
            be liable for payment of rent for the 30-day period following 
            notice and shall thereafter be released from any rent payment 
            obligation under the rental agreement.  

          2)Prohibits a landlord from terminating or failing to renew a 
            tenancy based upon an act or acts of domestic violence, sexual 
            assault, or stalking against a tenant or a tenant's household 
            member, except as provided.  Requires the Judicial Council to 
            develop, by January 1, 2012, a form that may be used by a 
            party to assert an affirmative defense to an unlawful detainer 
            action.  

           FISCAL EFFECT  :  Unknown 
           
          COMMENTS  :  This bill expands an existing law that permits a 
          tenant to terminate a long-term lease if the tenant or a 
          tenant's household member has been a victim of domestic 
          violence, sexual abuse, or stalking.  The purpose of the 
          existing law is straightforward:  it allows a person who needs 
          to move in order to escape a violent or potentially violent 
          situation to terminate a long-term lease without being subject 
          to any penalty for breaching the lease.  Specifically, existing 








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          law permits the tenant who has been a victim of abuse to provide 
          the landlord with written notice of intent to terminate.  The 
          tenant must attach to the notice a copy of a lawfully-issued 
          temporary restraining order or emergency protective order or a 
          police report in order to verify that tenant or household member 
          has been a victim of domestic violence, sexual assault, or 
          stalking.  Because existing law specifies that the tenant is 
          still responsible for rent for the 30-day period after notice is 
          provided, as a practical matter existing law only applies to 
          tenants who have entered into something longer than a 
          month-to-month lease.  


          This bill makes two changes to existing law.  First, it adds 
          elder and dependent adult abuse to the list of crimes that 
          permit a tenant-victim to terminate a tenancy with proper notice 
          and documentation.  Second, existing law requires a tenant to 
          attach to the termination notice either a "temporary restraining 
          order" or an "emergency protective order" in order to document 
          the abuse; this bill would additionally allow the tenant to 
          submit a copy of a "protective order" to meet this requirement.  
          Under existing law, there are generally three types of orders 
          that can be issued against an abuser in a domestic abuse case.  
          An "emergency protective order" (EPO) is issued at the request 
          of a police officer at the time of a domestic violence incident 
          and is valid for only five to seven days.  A "temporary 
          restraining order" (TRO) is issued by a judge or judicial 
          officer, generally ex parte, and is valid for up to 25 days.  
          Finally, a "protective order," also known as a "stay away 
          order," is issued after notice and a hearing.  The order lasts 
          for no more than five years, but can be permanently renewed.  It 
          is not clear why the original legislation listed only two of 
          these three orders, but there is no reason why any of the orders 
          could not serve as reliable evidence of the underlying abuse, 
          which is the only reason for the requirement.  Indeed, a 
          protective order, which is issued by a court after a hearing, 
          would seem to be more reliable evidence than a police report, 
          which simply proves that the victim filed a report, or a 
          temporary restraining order, which is issued ex parte.  Yet, 
          under existing law a police report or temporary restraining 
          order is acceptable documentation but a protective order is not. 
           This bill merely adds to the list of acceptable documentation a 
          "protective order," the third type of order that is typically 
          issued in abuse cases. 








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          Victims of repeated elder abuse - no less than victims of 
          domestic violence, sexual assault, or stalking - may sometimes 
          find that they need to change their residence in order to escape 
          from an abuser.  There does not appear to be any logical reason 
          for denying them the same protection.  Moreover, the National 
          Housing Law Project (NHLP) - the sponsor of the original 
          legislation - has encountered hybrid situations that have 
          created confusion and inequity.  For example, NHLP cites an 
          example of an elderly woman who had been raped by her caretaker, 
          as well as suffering other forms of abuse by this caretaker.  A 
          judge in that case granted a TRO based on the elder abuse.  When 
          the woman attempted to terminate her lease in order to escape 
          the caretaker, the landlord would not accept the TRO as 
          appropriate documentation because it was not based on one of the 
          statutory provisions (i.e., domestic violence, sexual abuse, and 
          assault) listed in Civil Code Section 1947.1.  This bill would 
          simply add the elder abuse statute to the existing list of 
          crimes that justify early termination of a lease on the part of 
          the victim.  In addition, the provision adding "protective 
          order" to the list of documents that may be attached to the 
          termination notice corrects an apparent oversight in the 
          original legislation, which only listed two of the possible 
          three types of order that can arise in a domestic abuse case. 



          In addition, this bill makes a minor change to a related statute 
          that prohibits a landlord from terminating a tenancy based 
          solely upon an act or acts of domestic violence, sexual assault, 
          or stalking against a tenant or tenant's household member.  That 
          statute, enacted by SB 782 (Yee), Chapter 626, Statutes of 2010, 
          was generally intended to address situations in which the 
          domestic abuse creates a nuisance that would otherwise be 
          grounds for eviction.  In such a case, the victim of domestic 
          abuse was essentially punished for the actions of his or her 
          abuser.  Existing law, therefore, protects the victim from 
          eviction in those situations unless the tenant persistently 
          permits the abuser to visit the property or if the landlord 
          reasonably believes that the abuser poses a genuine threat to 
          other tenants.  SB 782 also required the Judicial Council to 
          create a form, by January 1, 2012, which would be used by a 








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          qualified tenant to assert, based on these statutory 
          protections, an affirmative defense to an unlawful detainer 
          action.  This bill merely extends the date for the Judicial 
          Council to develop that form to January 1, 2014. 




           Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 


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