BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1513
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          Date of Hearing:   April 29, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                      AB 1513 (Fox) - As Amended: April 24, 2014

                              As Proposed to be Amended
           
          SUBJECT  :  RESIDENTIAL PROPERTY: TRESPASS

           KEY ISSUE  :  SHOULD PROPERTY OWNERS THAT TAKE AFFIRMATIVE STEPS  
          TO ENSURE THAT VACANT HOMES UNDER THEIR OWNERSHIP ARE REGULARLY  
          CHECKED AND FREE OF UNAUTHORIZED OCCUPANTS BE PROVIDED AN  
          ADDITIONAL TOOL TO ENFORCE CRIMINAL TRESPASS LAWS, PURSUANT TO A  
          PILOT PROJECT TO RUN UNTIL 2018 IN SELECT CITIES WHERE  
          "SQUATTING" IS A REPORTED PROBLEM?
                                          
                                      SYNOPSIS
          
          According to the author, unlawful detainer laws are not  
          specifically designed to provide law enforcement officials the  
          tools they need to assist owners of residential real property in  
          their efforts to remove or prevent occupancy by squatters on  
          vacant properties, and this bill seeks to provide property  
          owners with an additional tool to enforce criminal trespass laws  
          in cities where the so-called practice of "squatting" by  
          unauthorized occupants in residential property poses a growing  
          problem.  This bill, sponsored by the California Association of  
          Realtors, outlines a proposed pilot project to allow property  
          owners to declare residential property to be vacant, register it  
          with local law enforcement, and gain greater certainty that any  
          subsequent trespasser upon the property will be subject to  
          arrest for trespassing, so long as regular inspection of the  
          property at three day intervals has confirmed it to be vacant  
          since the date of registration.  As proposed to be amended, the  
          project initially includes the cities of Palmdale and Lancaster,  
          although more cities are expected to voluntarily ask to be  
          included as the bill progresses.

          The bill is opposed by a number of tenant advocates who contend  
          that, contrary to the author's assertions, existing laws  
          governing trespass and unlawful detainer adequately deal with  
          the problems caused by "squatters" and that the author has made  
          no showing to indicate otherwise.  These opponents believe that  
          any proposal that allows for the summary removal of someone  








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          deemed to be an unauthorized occupant or "squatter" by the  
          property owner, where there is no court involvement or  
          opportunity for the occupant to be heard, is a proposal that  
          necessarily lacks due process protection and is contrary to  
          existing law.  This bill will be referred to Assembly  
          Appropriations should it be approved by this Committee.

           SUMMARY  :  Establishes, until 2018, a pilot program to facilitate  
          enforcement of criminal trespassing laws against persons  
          occupying residential property that, pursuant to the program,  
          has been registered with and verified by local law enforcement  
          to be vacant.  Specifically,  this bill  :   

          1)Authorizes the owner of vacant real property, or his agent, to  
            register vacant property with the local police agency using a  
            specified form.

          2)Authorizes the owner or his agent to execute a "Declaration of  
            Ownership," worded as specified or in substantially similar  
            language, and file it with the district attorney of the  
            jurisdiction in which the property is located.  Further  
            requires the owner to post the declaration on the unoccupied  
            residential property listed in the declaration if he also  
            files it with the district attorney.

          3)Requires the registration form to be signed under penalty of  
            perjury and state that the property is vacant and is not  
            authorized to be occupied by any person.

          4)Requires the registration to be accompanied by a statement  
            providing the name, address and telephone number at which the  
            owner can be contacted within a twenty-four hour period, and a  
            statement that either the police agency or a licensed private  
            security services company has been retained to comply with  
            specified inspection and reporting provisions, together with a  
            copy of any agreement or contract to perform such services.

          5)Requires the owner or the owner's agent to register the vacant  
            property no later than three days after learning that the  
            property is vacant.

          6)Requires the owner or owner's agent, immediately after  
            authorizing a person to occupy the vacant property, to issue a  
            written authorization to the person authorized to occupy the  
            property and notify the police agency where the property is  








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            registered and terminate the registration.

          7)Requires a licensed private security services company or  
            police agency retained by the owner or owner's agent pursuant  
            to the pilot program to inspect the vacant property not less  
            than once every three days, and immediately notify the police  
            agency where the property is registered if any unauthorized  
            person is found on the property.

          8)Requires the police agency where the property is registered to  
            respond to the property as soon as practicable after being  
            notified by the licensed security business that an  
            unauthorized person is found on the property.  Further  
            requires the responding officer to do all of the following:

             a)   Verify that the property was inspected at least three  
               days prior and found to be vacant by the licensed security  
               business or police agency.
             b)   Ascertain the identity of any persons found on the  
               property.
             c)   Require the production of written authorization to be on  
               the property.
             d)   Advise any person who does not produce written  
               authorization that the person has forty-eight hours to  
               obtain written authorization from the owner of the  
               property, or the owner's agent, to be on the property, and  
               that the person will be subject to arrest for trespass if  
               the person is subsequently found on the property without  
               such authorization.
             e)   Verify with the owner or the owner's agent that the  
               property is vacant.                                          


          9)Provides that any person found on vacant property not less  
            than forty-eight hours after receiving the above warning  
            notification is guilty of trespass and, upon conviction, is  
            subject to imprisonment in a county jail not exceeding one  
            year, or by a fine not exceeding one thousand dollars  
            ($1,000), or both.

          10) Provides that the arrest of a person and removal of personal  
            property under this act is not a forcible entry under Section  
            1159 of the Code of Civil Procedure.

          11)Provides that this act shall not be construed to limit a  








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            property owner for seeking other legal remedies to have a  
            person removed from the vacant property pursuant to any other  
            law.

          12)Provides that the local city council or board of supervisors  
            shall establish fees for registering a vacant property with  
            the local police agency and for the conduct of inspections by  
            the police agency pursuant to this bill.

          13)Finds and declares the following:

             a)   The practice of squatting on vacant property is a public  
               nuisance and is detrimental to the health, safety, and  
               economy of local communities and to the rights of real  
               property owners. 
             b)   The intent of this section is to provide a means to  
               deter squatting at an early stage and to provide a second  
               chance for squatters to vacate the premises in lieu of  
               arrest. 
             c)   This act is not to be an abridgment of other statutes  
               relating to trespass or civil eviction proceedings.

          14)Limits application of these provisions to residential  
            property consisting of one to four units, located in the  
            cities of Palmdale and Lancaster, in Los Angeles County.

          15)Establishes a sunset date of January 1, 2018 for these  
            provisions.
             
           EXISTING LAW  :  

          1)Provides that every person other than a public officer or  
            employee acting within the course and scope of his or her  
            employment in performance of a duty imposed by law, who enters  
            or remains in any noncommercial dwelling house, apartment, or  
            other residential place without consent of the owner, his or  
            her agent, or the person in lawful possession thereof, is  
            guilty of a misdemeanor.  (Penal Code Section 602.5(a).)

          2)Provides that every person using or procuring, encouraging or  
            assisting another to use, any force or violence in entering  
            upon or detaining any lands or other possessions of another,  
            except in the cases and in the manner allowed by law, is  
            guilty of a misdemeanor.  (Penal Code Section 418.)









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          3)Provides, generally, that whenever any person is arrested by a  
            peace officer for a misdemeanor, that person shall be cited  
            and released unless at least one of several criteria are met  
            justifying non-release.  (Penal Code Section 853.6(i).)

          4)Provides that a person is guilty of a forcible detainer who  
            either (1) by force, or by menaces and threats of violence,  
            unlawfully holds and keeps the possession of any real  
            property, whether the same was acquired peaceably or  
            otherwise; or (2) who, in the night-time, or during the  
            absence of the occupant of any lands, unlawfully enters upon  
            real property, and who, after demand made for the surrender  
            thereof, for the period of five days, refuses to surrender the  
            same to such former occupant.  (Code of Civil Procedure  
            Section 1160.)

          5)Provides the statutory requirements for unlawful detainer, a  
            summary proceeding the primary purpose of which is to  
            determine right to possession of real property.  (Code of  
            Civil Procedure Section 1161 et seq.)

          6)Provides that a former owner of a foreclosed property who  
            holds over and remains in the property after it has been sold  
            through foreclosure may be removed after a three-day notice to  
            quit has been served.  (Code of Civil Procedure Section  
            1161a.) 

          7)Requires 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 to be given 90  
            days' written notice to quit before the tenant or subtenant  
            may be removed from the property as prescribed.  (Code of  
            Civil Procedure Section 1161b, subd. (a).)

          8)Provides that the purchaser or successor in interest shall  
            bear the burden of proof in establishing that tenants or  
            subtenants holding possession of a rental housing unit under a  
            fixed-term residential lease entered into before transfer of  
            title at the foreclosure sale do not have the right to  
            possession until the end of the lease term.  (Code of Civil  
            Procedure Section 1161b, subd. (b) and (c).)

          9)Provides that, in an action for unlawful detainer resulting  
            from a foreclosure sale of a rental housing unit, a tenant may  
            file a prejudgment claim of right of possession at any time  








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            before judgment or to object to enforcement of a judgment for  
            possession whether or not the tenant was served with the claim  
            of right to possession.  (Code of Civil Procedure  
            415.46(e)(2).)

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

           COMMENTS  :  This bill, sponsored by the California Association of  
          Realtors, seeks to provide property owners with an additional  
          tool to enforce criminal trespass laws in cities where the  
          so-called practice of "squatting" by unauthorized occupants in  
          residential property poses a problem to the community at large.

           Need for the bill  .  According to the author:

               AB 1513 provides local law enforcement officials the  
               authority to require unlawfully occupied residential  
               properties to be vacated. There is currently no state law  
               that provides local government officials with specific  
               tools they need to combat unlawful occupancy of  
               residences by squatters. There is a rise in the number of  
               properties that are unlawfully occupied by such  
               individuals. The practice is becoming so pervasive that  
               there are now websites on the internet that are providing  
               "how to" guidelines for squatting on residential  
               properties. 

               Unlawful Detainer laws are not specifically designed to  
               provide law enforcement officials the tools they need to  
               assist owners of residential real property in their  
               efforts to remove, or prevent occupancy by squatters on  
               vacant properties. It is clear that under California law  
               it can take a minimum of 30-60 days to evict a  
               sophisticated squatter. AB 1513 will provide a definitive  
               remedy for owners of residences in California that have  
               been taken over by squatters.
           
          Description of the proposed pilot program under this bill  .  The  
          bill outlines a pilot project to allow property owners to  
          declare property to be vacant, register it with local law  
          enforcement, and gain greater certainty that any subsequent  
          trespasser upon the property will be subject to arrest for  
          trespassing, so long as regular inspection of the property at  
          three day intervals has confirmed it to be vacant since the date  
          of registration.








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          According to the intent language of the bill, the program is  
          intended to provide a means to deter squatting at an early stage  
          and to provide a second chance for squatters to vacate the  
          premises in lieu of arrest, and is not intended to be an  
          abridgment of other statutes relating to trespass or civil  
          eviction proceedings.  It is believed that the threat of arrest  
          for trespassing on a property registered under this program (and  
          so noticed on the property itself) will serve as a deterrent to  
          those persons who the author and sponsor believe to be  
          sophisticated squatters targeting vacant properties in many  
          California cities.  

          The property owner registering the property under this program  
          must provide a phone number he can be reached at within a  
          24-hour period, which is intended to enable law enforcement to  
          quickly contact the owner should unauthorized occupants ever be  
          discovered on the property during one of the regular inspections  
          required under the program.  In addition, the owner must retain  
          either law enforcement or a private security service to  
          regularly inspect the vacant property, and provide a copy of the  
          contract or agreement to perform those services at the time of  
          registration.  The security company or law enforcement agent  
          must then inspect the vacant property at least every three days  
          to ensure it is vacant. 

          According to proponents who helped draft these provisions, this  
          key requirement is intended to ensure that the properties  
          registered with this program truly are vacant properties from  
          the first day of registration, and are not occupied by holdover  
          tenants or any other persons with legitimate claim to possess  
          the property.  It is thought that the regular inspection of the  
          property at least once every three days will reveal quickly  
          whether the property is a foreclosure property with a holdover  
          tenant, or a vacant property as declared to be by the owner  
          under penalty of perjury.  If the property is established to be  
          vacant as a condition of registration, then subsequent discovery  
          of an occupant on the property would indicate that the person  
          indeed fits the description of a "squatter", and is not a  
          holdover tenant who had been living openly in the property,  
          never having any idea that the owner had sworn the property to  
          be vacant despite the occupant's presence.

          Under the program, law enforcement is required to respond soon  
          after being notified that an unauthorized person has been found  








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          on the property.  As noted before, the stated intent of the bill  
          is to deter squatting at an early stage, and not to result in as  
          many arrests as possible.  To that end, the bill provides that  
          law enforcement responding to a first call shall not arrest the  
          person for trespass, but instead advise him or her that written  
          authorization from the owner must be acquired within 48 hours,  
          or the person is subject to arrest upon the officer's next  
          inspection of the property.  According to the sponsor, this  
          simple allowance provides a second chance for any unauthorized  
          occupant to vacate the premises in lieu of arrest, and  
          demonstrates the author's commitment to avoid arrest of people  
          who might otherwise be persuaded to move along after a single  
          visit from law enforcement.  For those hopefully rare few who  
          are ever arrested and convicted of trespass under this bill, the  
          criminal penalty is imprisonment in the county jail for up to  
          one year and a fine of up to $1000, or both.

           Author's proposed amendments.   The author proposes amendments to  
          the bill that seek to address some unresolved workability  
          problems with the proposed pilot program, and that also signals  
          the author's willingness to work with opponents and other  
          stakeholders to try to identify solutions that represent a  
          balance of interests, should the bill continue to move forward.

          As proposed to be amended, the bill resolves a discrepancy  
          between Sections 2 & 3 of the bill and clarifies that the pilot  
          program is intended to apply to residential property of one to  
          four units.  In addition, proposed amendments establish the  
          cities of Palmdale and Lancaster as the first cities to  
          participate in the pilot project, and the author and sponsor  
          anticipate that several more cities will voluntarily seek to be  
          included as the bill moves forward, given the reported  
          prevalence of squatting in certain areas of California where  
          vacant homes are common as a result of the recent foreclosure  
          crisis.

           ARGUMENTS IN SUPPORT  :  The bill is supported by property owners,  
          realtors, and the California Police Chiefs Association, who  
          write in support of this bill:

               Currently in California it can take 30-60 days-sometimes  
               even longer-to evict a squatter.  This is because  
               unlawful detainer procedures are geared towards  
               situations in which a tenant is evicted for failure to  
               pay rent or for an alleged violation of a rental  








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               agreement.  In the context of these cases, the 30 to 60  
               day timeframe is a reasonable one.  There are currently  
               no statutes, however, to assist with removing squatters  
               from vacant properties.  These situations often involve  
               potential public safety issues, and most assuredly  
               undermine the quality of life in the adjacent  
               neighborhood.  (This bill) will rectify that situation  
               and provide the needed tools to respond to what has been  
               a steadily increasing problem.

           ARGUMENTS IN OPPOSITION  :  The bill is opposed by a number of  
          tenant advocate groups, who contend that the bill compromises  
          established due process protections for persons occupying  
          property who may be trespassers but who just as easily may be  
          legitimately entitled to possession of the premises.  Their  
          numerous concerns are nicely summarized in a letter of  
          opposition from Tenants Together, stating:  
           
               This bill seeks to make it easier for property owners to  
               summarily remove alleged "unauthorized occupants." The  
               bill would substantially change landlord-tenant law,  
               bypassing the most basic due process requirement of an  
               opportunity to be heard in court. Proponents have made no  
               showing that existing laws governing trespass and  
               eviction are insufficient to sort out occupancy by  
               unauthorized persons.

               Tenants Together operates a renters' rights hotline  
               through which we have counseled over 8,000 tenant  
               households since 2009. We regularly receive calls from  
               legitimate tenants being falsely accused of being  
               unauthorized occupants. Whether because of ignorance or  
               bad faith, many owners, particularly after foreclosure,  
               treat tenants as if they are trespassers despite the fact  
               that rental agreements run with the land and verbal  
               rental agreements are fully enforceable and legitimate in  
               California. These new owners threaten to call, and in  
               some cases call, the police or sheriff to have tenants  
               arrested or otherwise removed as trespassers. Giving  
               these owners an additional tool for summary removal would  
               be extremely harmful.

               For years, post-foreclosure owners blatantly violated  
               tenants' rights by improperly treating tenants as  
               "unknown occupants," utilizing a loophole in state law  








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               that was recently addressed by the tenant protections in  
               the Homeowner Bill of Rights (HBOR). HBOR allows any  
               tenant in the property unnamed in an unlawful detainer  
               action to file a claim of right to possession at any time  
               to get a hearing to determine whether the tenant can  
               become a party to the eviction action. CCP 415.46(e)(2).  
               By allowing owners to circumvent the entire court  
               eviction process when the right to occupy is disputed,  
               the current proposal would undermine the very protections  
               the legislature just adopted in HBOR.

               The bill also improperly shifts the burden of proof of  
               the tenancy onto tenants, contrary to the trend in the  
               law in recent years. Again, responding to widespread  
               false claims that tenancies were not entitled to  
               protection, the legislature passed a provision in HBOR to  
               put the burden of proof on owners. See CCP sec. 1161b(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).") In contrast, this bill would allow a  
               mere declaration by the owner to result in removal by law  
               enforcement.

               Finally, it is worth considering why the situation of  
               unauthorized occupancy exists in the first place. In many  
               cases, the unauthorized occupancy is made possible by the  
               failure of post-foreclosure owners to exercise due  
               diligence to maintain and secure the property after  
               acquisition. Some companies have bought up thousands of  
               homes and make no meaningful attempt to secure them,  
               leaving them exposed to vandalism and trespassing. The  
               legislature responded to this problem with SB 1137 in  
               2008 to empower local government agencies to file  
               enforcement actions against those who allow vacant  
               property to become blighted, yet few jurisdictions have  
               taken action under the law. Rather than jeopardize the  
               rights of legitimate tenants with the proposed AB 1513,  
               the focus should be on forcing property owners to  
               exercise due diligence to secure properties after  
               acquisition.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 








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          California Association of Realtors (sponsor)
          California Mortgage Association
          California Police Chiefs Association
          Apartment Association of Greater Los Angeles
          Santa Barbara Rental Property Association
          Southwest California Legislative Council

           Opposition 
           
          Berkeley Tenants Union
          Coalition on Homelessness in San Francisco
          Tenants Together
          Western Center on Law and Poverty
           
          Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334