BILL NUMBER: SB 1473 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 19, 2012
AMENDED IN SENATE APRIL 26, 2012
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Hancock
(Coauthors: Senators DeSaulnier, Leno, and Pavley)
FEBRUARY 24, 2012
An act to amend Section 2924.8 of the Civil Code, and to amend
Sections 415.46 and 1161b 415.46, 1161b, and
1161c of the Code of Civil Procedure, relating to tenants.
LEGISLATIVE COUNSEL'S DIGEST
SB 1473, as amended, Hancock. Tenants: foreclosure and unlawful
detainer.
(1) Existing law requires a notice of sale to be posted before any
power of sale can be exercised under the power of sale contained in
any deed of trust or mortgage. Existing law, until January 1, 2013,
requires a resident of property upon which a notice of sale has been
posted to be provided a specified notice advising the resident that,
among other things, if the person is renting the property, the new
property owner may either give the tenant a new lease or rental
agreement, or provide the tenant with a 60-day eviction notice, and
that other laws may prohibit the eviction or provide the tenant with
a longer notice before eviction. Existing law makes it an infraction
to tear down the notice within 72 hours of posting. Existing law
requires a state government entity to make translations of the notice
available in 5 specified languages, for use by a mortgagee, trustee,
beneficiary, or authorized agent, in order to satisfy the notice
requirements.
This bill would revise certain portions of the notice to instead
require a resident of property upon which a notice of sale has been
posted to be advised that if the person is renting the property, the
new property owner may either give the tenant a new lease or rental
agreement, or provide the tenant with a 90-day eviction notice. The
bill would require the notice to advise a tenant who has a lease that
the new property owner is required to honor the lease unless the new
owner will occupy the property as a primary residence or
unless the lease was signed within the last 15 days and that the
tenant may have the right to stay in the property for longer than 90
days under other limited circumstances . The
bill would require the Department of Consumer Affairs to make
translations of the notice available, as described above. The bill
would provide that these changes to the notice would become operative
on March 1, 2013, or 60 days following the issuance of an amended
notice translation by the Department of Consumer Affairs Internet Web
site, whichever date is later. The bill would extend the operation
of these provisions indefinitely until
December 31, 2019 .
By extending the operation of provisions establishing a crime,
this bill would impose a state-mandated local program.
(2) Existing law provides that, in an unlawful detainer action, if
an owner or owner's agent has obtained service of a prejudgment
claim of right to possession, as specified, no occupant of the
premises, whether or not that occupant is named in the judgment for
possession, may object to the enforcement of the judgment, as
specified.
This bill would provide that those in any
action for unlawful detainer resulting from a foreclosure sale of a
rental housing unit pursuant to specified provisions, the above
provisions regarding objection to the enforcement of a judgment
do not limit the right of a tenant , subtenant,
or occupant subtenant to file
a prejudgment claim of right of possession or to object to
enforcement of a judgment for possession, regardless of whether the
tenant , subtenant, or occupant or subtenant
was served with a prejudgment claim of right to possession, as
specified , in the case of an unlawful detainer arising out
of, among other circumstances, a foreclosure sale .
(3) Existing law, until January 1, 2013, requires a tenant or
subtenant in possession of a rental housing unit at the time that
property is sold in foreclosure to be provided 60 days' written
notice to quit before the tenant or subtenant may be removed from the
property, as specified.
This bill would instead require a tenant or subtenant in
possession of a rental housing unit under a month-to-month lease
or periodic tenancy at the time that property is sold in
foreclosure to be provided 90 days' written notice to quit before the
tenant or subtenant may be removed from the property. The bill would
provide tenants or subtenants holding possession of a rental
housing unit under a fixed-term residential lease
with entered into before transfer of title at
the foreclosure sale the right to possession until the end of
the lease term unless the new owner will occupy the property
as a primary residence or unless the lease was signed within the
last 15 days. The bill would require a residential lease that is
entered into 75 days or more after a notice of default against the
property has been recorded to contain a notice to advise the
potential tenant that the foreclosure process has begun on the
property, and that the property may be sold, which will terminate the
lease. , except in specified
circumstances. The bill would also extend the operation of
these provisions indefinitely until December
31, 2019 .
(4) Existing law, until January 1, 2013, and subject to
exceptions, requires that in the case of any foreclosure on a
residential property, the immediate successor in interest in the
property pursuant to the foreclosure shall attach a cover sheet, as
specified, to any notice of termination of tenancy served on a tenant
of that property within the first year after the foreclosure sale.
This bill would extend the operation of these provisions until
December 31, 2019.
(4)
(5) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2924.8 of the Civil Code is amended to read:
2924.8. (a) (1) Upon posting a notice of
sale pursuant to Section 2924f, a trustee or authorized agent shall
also post the following notice, in the manner required for posting
the notice of sale on the property to be sold, and a mortgagee,
trustee, beneficiary, or authorized agent, concurrently with the
mailing of the notice of sale pursuant to Section 2924b, shall send
by first-class mail in an envelope addressed to the "Resident of
property subject to foreclosure sale" the following notice in English
and the languages described in Section 1632:
Foreclosure process has begun on this property, which may affect
your right to continue to live in this property. Twenty days or more
after the date of this notice, this property may be sold at
foreclosure. If you are renting this property, the new property owner
may either give you a new lease or rental agreement or provide you
with a 90-day eviction notice. You may have a right to stay in your
home for longer than 90 days. If you have a fixed-term
lease, the new owner must honor the lease unless the new owner will
occupy the property as a primary residence or unless the
lease was signed within the last 15 days in other
limited circumstances . Also, in some cases and in some cities
with a "just cause for eviction" law, you may not have to move at
all. All rights and obligations under your lease or tenancy,
including your obligation to pay rent, will continue after the
foreclosure sale. You may wish to contact a lawyer or your
local legal aid office or housing counseling agency to discuss any
rights you may have.
(2) The amendments to the notice in this subdivision made by the
act that added this paragraph shall become operative on March 1,
2013, or 60 days following posting of a dated notice incorporating
those amendments on the Department of Consumer Affairs Internet Web
site, whichever date is later.
(b) It shall be an infraction to tear down the notice described in
subdivision (a) within 72 hours of posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) The Department of Consumer Affairs shall make available
translations of the notice described in subdivision (a) which may be
used by a mortgagee, trustee, beneficiary, or authorized agent to
satisfy the requirements of this section.
(d) This section shall only apply to loans secured by residential
real property, and if the billing address for the mortgage note is
different than the property address.
(e) The amendments made to subdivision (a), by the act which added
this subdivision regarding the obligation to provide the notice set
forth in that subdivision in the languages required by Section 1632
shall become operative on March 1, 2013, or 60 days following the
issuance of an amended notice translation by the Department of
Consumer Affairs, whichever occurs later.
(e) This section shall remain in effect only until December 31,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 31, 2019, deletes or extends
that date.
SEC. 2. Section 415.46 of the Code of Civil Procedure is amended
to read:
415.46. (a) In addition to the service of a summons and complaint
in an action for unlawful detainer upon a tenant and subtenant, if
any, as prescribed by this article, a prejudgment claim of right to
possession may also be served on any person who appears to be or who
may claim to have occupied the premises at the time of the filing of
the action. Service upon occupants shall be made pursuant to
subdivision (c) by serving a copy of a prejudgment claim of right to
possession, as specified in subdivision (f), attached to a copy of
the summons and complaint at the same time service is made upon the
tenant and subtenant, if any.
(b) Service of the prejudgment claim of right to possession in
this manner shall be effected by a marshal, sheriff, or registered
process server.
(c) (1) When serving the summons and complaint upon a tenant and
subtenant, if any, the marshal, sheriff, or registered process server
shall make a reasonably diligent effort to ascertain whether there
are other adult occupants of the premises who are not named in the
summons and complaint by inquiring of the person or persons who are
being personally served, or any person of suitable age and discretion
who appears to reside upon the premises, whether there are other
occupants of the premises.
(2) If the identity of such an occupant is disclosed to the
officer or process server and the occupant is present at the
premises, the officer or process server shall serve that occupant
with a copy of the prejudgment claim of right to possession attached
to a copy of the summons and complaint. If personal service cannot be
made upon that occupant at that time, service may be effected by
leaving a copy of a prejudgment claim of right to possession attached
to a copy of the summons and complaint addressed to that occupant
with a person of suitable age and discretion at the premises,
affixing the same so that it is not readily removable in a
conspicuous place on the premises in a manner most likely to give
actual notice to that occupant, and sending the same addressed to
that occupant by first-class mail.
(3) In addition to the service on an identified occupant, or if no
occupant is disclosed to the officer or process server, or if
substituted service is made upon the tenant and subtenant, if any,
the officer or process server shall serve a prejudgment claim of
right to possession for all other persons who may claim to occupy the
premises at the time of the filing of the action by leaving a copy
of a prejudgment claim of right to possession attached to a copy of
the summons and complaint at the premises at the same time service is
made upon the tenant and subtenant, if any, affixing the same so
that it is not readily removable in a conspicuous place on the
premises so that it is likely to give actual notice to an occupant,
and sending the same addressed to "all occupants in care of the named
tenant" to the premises by first-class mail.
(4) The person serving process shall state the date of service on
the prejudgment claim of right to possession form. However, the
absence of the date of service on the prejudgment claim of right to
possession does not invalidate the claim.
(d) Proof of service under this section shall be filed with the
court and shall include a statement that service was made pursuant to
this section. Service on occupants in accordance with this section
shall not alter or affect service upon the tenant or subtenant, if
any.
(e) (1) If an owner or his or her agent has directed and obtained
service of a prejudgment claim of right to possession in accordance
with this section, no occupant of the premises, whether or not
such that occupant is named in the
judgment for possession, may object to the enforcement of that
judgment as prescribed in Section 1174.3.
(2) Paragraph (1) shall not limit the right of any tenant,
subtenant, or occupant of the property to file a prejudgment claim of
right of possession pursuant to Section 1174.25 at any time before
judgment, or to object to enforcement of a judgment for possession as
prescribed in Section 1174.3, whether or not the tenant, subtenant,
or occupant was served with a prejudgment claim of right to
possession, when the judgment for possession arises from an action
for unlawful detainer pursuant to Section 1161a.
(2) In any action for unlawful detainer resulting from a
foreclosure sale of a rental housing unit pursuant to Section 1161a,
paragraph (1) shall not limit the right of any tenant or subtenant of
the property to file a prejudgment claim of right of possession
pursuant to subdivision (a) of Section 1174.25 at any time before
judgment, or to object to enforcement of a judgment for possession as
prescribed in Section 1174.3, whether or not the tenant or subtenant
was served with a prejudgment claim of right to possession.
(f) The prejudgment claim of right to possession shall be made on
the following form: GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE
BILL]
SEC. 3. Section 1161b of the Code of Civil Procedure is amended to
read:
1161b. (a) Notwithstanding Section 1161a, a tenant or subtenant
in possession of a rental housing unit under a month-to-month lease
or periodic tenancy at the time the property is sold in
foreclosure shall be given 90 days' written notice to quit pursuant
to Section 1162 before the tenant or subtenant may be removed from
the property as prescribed in this chapter.
(b) (1) Tenants
In addition to the rights set forth in
subdivision (a), the tenants or subtenants holding possession
of a rental housing unit under a fixed-term
residential lease of a rental housing unit at the time that
the property is sold at foreclosure entered into
before transfer of title at the foreclosure sale shall have the
right to possession until the end of the lease term .
, and all rights and obligations under the lease shall
survive foreclosure, except that the tenancy may be terminated upon
90 days' written notice to quit pursuant to subdivision (a) if any of
the following conditions apply:
(2) Paragraph (1) shall not apply if a new owner will occupy the
unit as a primary residence or if the lease was entered into within
15 days prior to the posting of the notice of sale pursuant to
Section 2924f, provided, however, that in either case the new owner
shall provide the notice described in subdivision (a).
(3) Every residential lease entered into 75 days or more after the
recording of a notice of default for the property shall include the
following notice in English and the languages described in Section
1632:
Foreclosure proceedings have begun on this property, which may
affect your right to continue to live in this property if you sign
this lease. This property may be sold at a foreclosure sale in as
soon as 20 days, which will terminate this lease. If you rent this
property, the new owner may evict you after a 90-day eviction notice.
In some cities with a "just cause for eviction" law, you may not
have to move.
(1) The purchaser or successor in interest will occupy the housing
unit as a primary residence.
(2) The lessee is the mortgagor or the child, spouse, or parent of
the mortgagor.
(3) The lease was not the result of an arms' length transaction.
(4) The lease requires the receipt of rent that is substantially
less than fair market rent for the property, except when rent is
reduced or subsidized due to a federal, state, or local subsidy or
law.
(c) The purchaser or successor in interest shall bear the burden
of proof in establishing that a fixed-term residential lease is not
entitled to protection under subdivision (b).
(c)
(d) This section shall not apply if any party to the
note remains in the property as a tenant, subtenant, or occupant.
(d) This section shall not preempt any local ordinance and is in
addition to any other rights and remedies available to tenants and
owners as provided by federal, state, and local law.
(e) Nothing in this section is intended to affect any local
just-cause eviction ordinance. This section does not, and shall not
be construed to, affect the authority of a public entity that
otherwise exists to regulate or monitor the basis for eviction.
(f) This section shall remain in effect only until December 31,
2019, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 31, 2019, deletes or extends
that date.
SEC. 4. Section 1161c of the Code of
Civil Procedure is amended to read:
1161c. (a) In the case of any foreclosure on a residential
property, the immediate successor in interest in the property
pursuant to the foreclosure shall attach a cover sheet, in the form
as set forth in subdivision (b), to any notice of termination of
tenancy served on a tenant of that property within the first year
after the foreclosure sale. This notice shall not be required if any
of the following apply:
(1) The tenancy is terminated pursuant to Section 1161.
(2) The successor in interest and the tenant have executed a
written rental agreement or lease or a written acknowledgment of a
preexisting rental agreement or lease.
(3) The tenant receiving the notice was not a tenant at the time
of the foreclosure.
(b) The cover sheet shall consist of the following notice, in at
least 12-point type:
Notice to Any Renters Living At
street address of the unit]
The attached notice means that your home was recently sold in
foreclosure and the new owner plans to evict you.
You should talk to a lawyer NOW to see what your rights are. You
may receive court papers in a few days. If your name is on the papers
it may hurt your credit if you do not respond and simply move out.
Also, if you do not respond within five days of receiving the
papers, even if you are not named in the papers, you will likely lose
any rights you may have. In some cases, you can respond without
hurting your credit. You should ask a lawyer about it.
You may have the right to stay in your home for 90 days or longer,
regardless of any deadlines stated on any attached papers. In some
cases and in some cities with a "just cause for eviction law," you
may not have to move at all. But you must take the proper legal steps
in order to protect your rights.
How to Get Legal Help
If you cannot afford an attorney, you may be eligible for free
legal services from a nonprofit legal services program. You can
locate these nonprofit groups at the California Legal Services Web
site (www.lawhelpcalifornia.org), the California Courts Online
Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting
your local court or county bar association.
(c) If the notice to quit specifies an effective date of at least
90 days after the notice is served, without qualification, no cover
sheet shall be required, provided that the notice incorporates the
text of the cover sheet, as set forth in subdivision (b) in at least
10-point type. The incorporated text shall omit the caption and the
first paragraph of the cover sheet and the fourth paragraph of the
cover sheet shall be replaced by the following language:
You may have the right to stay in your home for longer than 90
days. If you have a lease that ends more than 90 days from now, the
new owner must honor the lease under many circumstances. Also, in
some cases and in some cities with a "just cause for eviction law,"
you may not have to move at all. But you must take the proper legal
steps in order to protect your rights.
(d) This section shall remain in effect only until
January 1, 2013 December 31, 2019 , and as of
that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2013 December 31,
2019 , deletes or extends that date.
SEC. 4. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.