BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 5 1 AB 1513 (Fox) 3 As Amended May 6, 2014 Hearing date: June 24, 2014 Penal Code JM:mc TRESPASS IN VACANT RESIDENCES: PILOT PROJECT FOR EXPEDITED POLICE EVICTIONS HISTORY Source: California Association of Realtors Prior Legislation:AB 668 (Lieu) - Ch. 531, Stats. 2010 AB 1800 (Ma) - Ch. 580, Stats. 2010 AB 924 (Maldonado) - Ch. 101, Stats. 2003 SB 993 (Poochigian) - Ch. 805, Stats. 2003 SB 1486 (Schiff) - Ch. 563, Stats. 2000 Support: California Police Chiefs Association; Southwest California Legislative Council; San Diego County Apartment Association; Contra Costa Association of Realtors; Orange County Association of Realtors Opposition:Western Center on Law and Poverty (unless amended); Legal Services for Prisoners with Children; California Public Defenders Association Assembly Floor Vote: Ayes 68 - Noes 3 (More) AB 1513 (Fox) Page 2 KEY ISSUE SHOULD A 3-YEAR PILOT PROJECT BE IMPLEMENTED IN THE CITIES OF PALMDALE AND LANCASTER REGARDING TRESPASS ON VACANT REAL PROPERTY, AS SPECIFIED? SHOULD VIOLATORS OF "TRESPASS" UNDER THIS PILOT BE SUBJECT TO A MISDEMEANOR PROSECUTION? PURPOSE The purpose of this bill is to enact a 3-year pilot project in Palmdale and Lancaster to provide an alternative eviction and trespass process available for absent owners of certain residential properties, as specified. Existing law 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. (Pen. Code § 602.5, subd. (a).) Existing law 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. (Pen. Code § 418.) Existing law 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 (More) AB 1513 (Fox) Page 3 are met justifying non-release. (Pen. Code § 853.6, subd. (i).) Existing law 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 Civ. Proc. § 1160.) Existing law 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 Civ. Proc. §§ 1161 et seq.) Existing law 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 Civ. Proc. § 1161a.) Existing law 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 Civ. Proc. § 1161b, subd. (a).) Existing law 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 Civ. Proc. § 1161b, subd. (b)-(c).) (More) AB 1513 (Fox) Page 4 Existing law 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 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 Civ. Proc. § 415.46, subd. (e)(2).) This bill authorizes the owner of vacant real property, or his agent, to register vacant property with the local police agency using a specified form. This bill 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. The owner shall post the declaration on the property listed in the declaration if he or she files it with the district attorney. This bill requires the registration form to be signed under penalty of perjury and state that the property is vacant and is no person is authorized to be occupied the residence. This bill 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. This bill 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. This bill requires the owner or owner's agent, immediately after authorizing a person to occupy the vacant property, to issue a (More) AB 1513 (Fox) Page 5 written authorization to the person authorized to occupy the property and notify the police agency where the property is registered and terminate the registration. This bill requires a licensed private security services company or police agency retained by the owner or owner's agent to inspect the vacant property not less than once every three days, and immediately notify the police agency with which the property is registered if any unauthorized person is found on the property. This bill 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. The responding officer shall also do all of the following: Verify that the property was inspected at least three days prior and found to be vacant by the licensed security business or police agency. Ascertain the identity of any persons found on the property. Require the production of written authorization to be on the property. 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 subsequently found on the property without such authorization. Verify with the owner or the owner's agent that the property is vacant. This bill 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, (More) AB 1513 (Fox) Page 6 or by a fine not exceeding one thousand dollars ($1,000), or both. This bill 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. This bill provides that this act shall not be construed to limit a property owner for seeking other legal remedies to have a person removed from the vacant property pursuant to any other law. This bill 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. This bill finds and declares the following: 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. 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. This act is not to be an abridgment of other statutes relating to trespass or civil eviction proceedings. This bill 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. This bill establishes a sunset date of January 1, 2018, for these provisions. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION (More) AB 1513 (Fox) Page 7 For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, (More) AB 1513 (Fox) Page 8 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. (More) AB 1513 (Fox) Page 9 The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for this 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 (More) AB 1513 (Fox) Page 10 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. 2. Supporters' Description of the Proposed Pilot Program Defined by 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 expedited ejection of trespassers. Trespassers who do not vacate the property within 48 hours have committed a misdemeanor. The bill requires regular inspection of the property at three day intervals by a private security entity to confirm that the residence has remained vacant since the date of registration. The bill includes a statement of intent to deter squatting at an early stage and provide a second chance for squatters to vacate the premises in lieu of arrest. Further, the bill is not intended to abridge or replace other statutes relating to trespass or civil eviction proceedings. 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 (More) AB 1513 (Fox) Page 11 registration. The security company or law enforcement agent must then inspect the vacant property at least every three days to ensure it is vacant. Supporters of the bill have argued that the bill will 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. They argued that 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 when inspected, then subsequent discovery of an occupant on the property would indicate that he or she is a "squatter," not a holdover tenant who had been living openly in the property without having any idea that the owner had sworn the property to be vacant despite the occupant's presence. Law enforcement is required to respond soon after being notified that an unauthorized person has been found on the property. The responding law enforcement agency 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. This simply will allow any unauthorized occupant to vacate the premises and avoid arrest. 3. Due Process Concerns of Persons with Legitimate Claims to Tenancy This bill creates a greatly expedited process for ejecting alleged trespassers from residential property. The foreclosure crisis has created circumstances where ownership and rental tenancy of property may be difficult to determine. A person in possession of property - perhaps a person who believes that he or she still owns the property - might even have difficulty determining the person or entity to contact for questions about (More) AB 1513 (Fox) Page 12 the status of the property. A person subject to ejectment and a misdemeanor conviction for failure to leave property within 48 hours after notice could be a legitimate tenant or reasonably believe that he or she is validly in possession of the property. While the bill provides that a person in possession of property shall not be arrested for trespass if he or she presents written authorization from the owner, the bill does not provide a method for the police or the courts to resolve conflicting claims of ownership or authorization. The person in possession could have a lease from a former owner. The new owner of a foreclosed residence might have no knowledge of a lease between the former owner and the tenant. Further, the person in possession may have been a victim of a sham rental from a person pretending to be the owner of the property. This has occurred often enough on foreclosed properties that former Assembly Member Fiona Ma authored a bill that raised penalties for sham rentals. (See Comment #5.) The bill requires the owner to "retain" a law enforcement agency or private security firm to inspect the property. The bill does not explain how the owner would "retain" a law enforcement agency or entity. Because the bill requires the retained agency to notify the agency with which the property is registered, it appears that the retained entity would be different than the agency with which the property is registered. Further, the bill requires the retained agency to inspect the property no less than once every three days. The purpose of the inspection is to ensure that the property was truly vacant before the security firm or law enforcement entity found someone on the property. The bill does not explain what constitutes an inspection. Any inspection that did not include entry of the residence might not reveal whether it was occupied or not. The authority of the police to eject a person from a residence appears to flow solely from the declaration of the asserted owner. Unlike the requirement that the person in possession show written proof of authorization to be on the property, an asserted owner need not produce any documentation of ownership. An asserted owner who makes a false declaration could be charged (More) AB 1513 (Fox) Page 13 with perjury, but perjury requires proof that the declarant willfully stated as true any "material matter which he or she knows to be false." While it would appear that a declaration that the property is vacant would be material, it might be difficult to prove that somebody in a bank, mortgage office or similar entity actually knew that the person in the residence had no right to be there. Further, confusion about clear title to property could make it difficult to prosecute an individual for perjury. In any event, long before any perjury prosecution has been completed, the former occupant of the residence would have been ejected from the property. The bill does not provide a procedure for challenging either the notice to leave or the declaration filed by the asserted owner of the property. It is also not clear that a person who is arrested and charged with a misdemeanor for failure to leave a residence within 48 hours has a valid defense in being a bona fide tenant or possessor of the property. That is, the bill does not clearly state that a person with no legitimate claim to possession of the property is guilty of a misdemeanor upon failure to heed notice, the bill provides that the person is a trespasser if he or she does not comply with the notice. It could be argued that the reference to "vacant" property could provide a defense for a legitimate tenant, as property occupied by a tenant or lawful possessor would not be vacant, but that is not clear. The lack of a clearly defined defense to trespass through later establishing the right to be on the property could be particularly problematic where the owner of the property is a large bank or mortgage company and the alleged trespasser is the former owner of the house. The person may have received oral authority to temporarily remain in the house from one department or person at a company, but this authority or permission was not conveyed to another department that prepares foreclosure properties for sale. It could take a person some time to document his or her authority. HOW WOULD AN OWNER "RETAIN" A LAW ENFORCEMENT AGENCY TO INSPECT THE PERSON'S RESIDENTIAL PROPERTY AT LEAST EVERY THREE DAYS? (More) AB 1513 (Fox) Page 14 WOULD THE RETAINED LAW ENFORCEMENT ENTITY BE DIFFERENT THAN THE AGENCY WITH WHICH THE OWNERSHIP HAS BEEN REGISTERED? WHAT CONSTITUTES "INSPECTION" OF THE PROPERTY - TO VERIFY THAT THE PROPERTY IS VACANT, SUCH THAT ANY PERSONS LATER FOUND ON THE PROPERTY ARE TRESPASSERS? WHAT HAPPENS IN CASES WHERE OWNERSHIP - PERHAPS BY A LARGE BANK OR MORTGAGE COMPANY - IS UNCLEAR? SHOULD THE BILL INCLUDE A JUDICIAL PROCESS THROUGH WHICH A PERSON ORDERED TO VACATE RESIDENTIAL PROPERTY COULD CHALLENGE THE BASIS OF THE ORDER? IS A PERSON STILL GUILTY OF A MISDEMEANOR FOR FAILURE TO LEAVE PROPERTY WITHIN 48 HOURS, IF THE PERSON LATER ESTABLISHES THAT HE OR SHE OWNS OR LEASES THE PROPERTY, OR HAS PERMISSION TO BE ON THE PROPERTY? IN THE MISDEMEANOR DEFINED BY THIS BILL FOR FAILURE TO VACATE RESIDENTIAL PROPERTY, SHOULD THE PROSECUTION HAVE TO PROVE AS AN ELEMENT OF THE OFFENSE THAT A DEFENDANT DID NOT HAVE THE RIGHT TO OCCUPY THE PROPERTY? SHOULD A DEFENDANT HAVE THE RIGHT TO AN AFFIRMATIVE DEFENSE THAT HE OR SHE HAD A REASONABLE BELIEF IN HIS OR HER RIGHT TO OCCUPY THE PROPERTY? WOULD PROSECUTORS HAVE DIFFICULTY OBTAINING PERJURY CONVICTIONS FOR FRAUDULENT OR QUESTIONABLE CLAIMS OF OWNERSHIP? 4. Related Pending Legislation SB 1295 (Block) is pending in Assembly Public Safety. The bill amends subdivision (o) of Penal Code Section 602. That section concerns requests by a person who owns or is in lawful possession of a structure or property for law enforcement assistance in requesting trespassers to leave. The property must be posted as being closed to the public. Failure to comply (More) AB 1513 (Fox) Page 15 with the law enforcement demand to leave the property is a misdemeanor. AB 1686 (Medina) amends the same statute as the Block bill, but is more narrow. AB 1686 has been pending on third reading since May 14, 2014. 5. 2010 Legislation on Fraudulent Rental of Vacant Properties - Ejectment Under this Bill of Persons who Believe that are Legitimate Tenants AB 1800 (Ma) Ch. 531, Stats. 2010, concerned the problem of fraudulent rental of foreclosed and vacant homes. The bill increased the misdemeanor penalty for unlawful rental of a residential dwelling under claim of ownership or authority, from a misdemeanor punishable by six months in the county jail, a fine of up to $1,000, or both, to a maximum jail term of one year, a fine of up to $2,500, or both. There could be circumstances where the occupants of a residence could be subject to the ejectment procedure in this bill, yet honestly believe that have a legitimate lease on the property. 6. Argument in Support The California Police Chiefs Association argues: 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 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. (More) AB 1513 (Fox) Page 16 (More) 7. Argument in Opposition Tenants Together argues: 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 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 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, (More) AB 1513 (Fox) Page 18 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. *************** AB 1513 (Fox) Page 19