BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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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
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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
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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).)
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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
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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,
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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
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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,
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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.
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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
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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
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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
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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
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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?
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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
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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.
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(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,
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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.
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