BILL ANALYSIS Ó SB 1403 Page 1 ( Without Reference to File ) SENATE THIRD READING SB 1403 (Yee) As Amended August 29, 2012 Majority vote SENATE VOTE :35-0 JUDICIARY 8-0 ----------------------------------------------------------------- |Ayes:|Wieckowski, Wagner, | | | | |Alejo, Dickinson, Feuer, | | | | |Gorell, Huber, Monning | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 : SB 1403 Page 2 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 SB 1403 Page 3 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. SB 1403 Page 4 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 SB 1403 Page 5 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 FN: 0005865