BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          AB 73 (Waldron)
          Version: August 2, 2016
          Hearing Date: August 9, 2016
          Fiscal: No
          Urgency: Yes
          TH   


                                        SUBJECT
                                           
                              Real Property: Disclosure

                                      DESCRIPTION  

          This bill specifies that the owner of real property, his or her  
          agent, or the agent of a transferee of real property, is not  
          required to disclose that an occupant of the property being  
          transferred was living with human immunodeficiency virus (HIV).

                                      BACKGROUND  

          According to NAM (National AIDS Manual), HIV is a type of  
          retrovirus identified in the 1980s that attacks and gradually  
          causes damage to the human immune system.

            [W]ithout treatment and care, a person with HIV is at risk of  
            developing serious infections and cancers that a healthy  
            immune system would fight off.  Current treatment for HIV  
            works by reducing the amount of HIV in the body so the immune  
            system can work normally. This doesn't get rid of HIV  
            completely, but with the right treatment and care, someone  
            with HIV can expect to live a long and healthy life.
            . . .
            AIDS [acquired immune deficiency syndrome] is the name used to  
            describe a combination of potentially life-threatening  
            infections and cancers, which can develop when someone's  
            immune system has been damaged by HIV.
            . . .
            Treatment with combinations of anti-HIV drugs can keep the  
            immune system strong, and because of this the number of people  








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            who are diagnosed with AIDS has fallen.  Thanks to effective  
            HIV treatment, many people who developed AIDS are now very  
            well and can look forward to a long and healthy life.  (See  
            http://www.aidsmap.com/hiv-basics/HIV-AIDS/page/1412437/ [as  
            of Aug. 4, 2016].)

          HIV, the virus that can lead to AIDS, is found in certain body  
          fluids, but does not survive long outside the human body, and it  
          cannot reproduce outside a human host.  Consequently, "[y]ou  
          cannot get HIV from kissing, by hugging, or by shaking hands  
          with somebody with HIV - or any other normal social contact.   
          Nor can you get HIV by being in the same place as someone with  
          HIV, or by sharing household items such as crockery, cutlery, or  
          bed linen," and "HIV is not passed on by spitting, sneezing or  
          coughing."  (See  
          http://www.aidsmap.com/hiv-basics/Transmission/page/1412438/ [as  
          of Aug. 4, 2016].)

          The Legislature passed SB 2484 (Roberti, Ch. 498, Stats. 1986)  
          and SB 324 (Davis, Ch. 292, Stats. 1987) in the 1980s to relieve  
          transferors of property from any duty to disclose that an  
          occupant of the property was infected with HIV.  This bill  
          recasts and clarifies those provisions by explicitly stating  
          that the transferor of a property is not required to disclose  
          that an occupant of the property being transferred was living  
          with human immunodeficiency virus (HIV).

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Constitution, provides that all  
          people have inalienable rights, including the right to pursue  
          and obtain privacy.  (Cal. Const., art. I, Sec. 1.)

           Existing law  states that to protect the privacy of individuals  
          who are the subject of testing for human immunodeficiency virus  
          (HIV), no person shall be compelled in any state, county, city,  
          or other local civil, criminal, administrative, legislative, or  
          other proceedings to identify or provide identifying  
          characteristics that would identify any individual who is the  
          subject of an HIV test, as specified.  (Health & Saf. Code Sec.  
          120975.)

           Existing law  requires the transferor to deliver a statutory  
          transfer disclosure statement and other disclosures as soon as  
          practicable before transfer of title, or close of escrow, when  







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          transferring real property and manufactured homes or  
          mobilehomes.  (Civ. Code Sec. 1102.3a(a).)

           Existing law  states that no cause of action arises against an  
          owner of real property or his or her agent, or any agent of a  
          transferee of real property, for the failure to disclose to the  
          transferee the occurrence of an occupant's death upon the real  
          property or the manner of death where the death has occurred  
          more than three years prior to the date the transferee offers to  
          purchase, lease, or rent the real property, or that an occupant  
          of that property was afflicted with, or died from, Human  
          T-Lymphotropic Virus Type III/Lymphadenopathy-Associated Virus.   
          (Civ. Code Sec. 1710.2(a).)

           Existing law  specifies that the above provision shall not be  
          construed to immunize an owner or his or her agent from making  
          an intentional misrepresentation in response to a direct inquiry  
          from a transferee or a prospective transferee of real property,  
          concerning deaths on the real property.  (Civ. Code Sec.  
          1710.2(d).)

           This bill  recasts the above provisions to state that an owner of  
          real property or his or her agent, or any agent of a transferee  
          of real property, is not required to disclose either of the  
          following to the transferee, as these are not material facts  
          that require disclosure:
           the occurrence of an occupant's death upon the real property  
            or the manner of death where the death has occurred more than  
            three years prior to the date the transferee offers to  
            purchase, lease, or rent the real property; or
           that an occupant of that property was living with human  
            immunodeficiency virus (HIV).

           This bill  makes related technical and conforming changes to  
          existing law.

                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            Existing law states the Legislature's intent to occupy the  
            field of regulation of disclosure related to deaths occurring  
            upon real property and of AIDS in situations affecting the  







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            transfer of real property or any estate or interest in real  
            property.  California Civil Code section 1710.2, which refers  
            to real estate disclosures, says that sellers and agents are  
            protected from a cause of action for the failure to disclose a  
            previous occupant's cause of death from HIV on that property  
            that has occurred more than three years prior to the date the  
            buyer offers to purchase, lease, or rent the real property.   
            This section was originally written to protect people living  
            with HIV from being discriminated against when selling or  
            renting real estate.  However, this section caused confusion  
            for many homeowners and real estate agents because of the  
            specific mention of HIV.  This confusion leads many to believe  
            that they are required to disclose that the previous occupant  
            was HIV positive.

            AB 73 updates the California Civil Code to remove language  
            that stigmatizes people living with HIV and clarify that there  
            is no requirement to disclose a previous occupant's HIV status  
            when selling, leasing, or renting a home.

           2.Clarifying disclosure duties regarding HIV status  

          Existing law seeks to protect real property owners with HIV from  
          having to disclose their medical condition to prospective  
          purchasers of their property by stating that no cause of action  
          arises for the failure to disclose that an occupant of the  
          property was afflicted with, or died from, Human T-Lymphotropic  
          Virus Type III/ Lymphadenopathy-Associated Virus.  However, the  
          phrasing of this provision and the "specific mention of HIV  
          causes confusion for many homeowners and real estate agents,"  
          according to the AIDS Project of Los Angeles, a co-sponsor of  
          this bill.  The AIDS Project states that," [i]n fact, many  
          people believe they are required to disclose the HIV-positive  
          status of a previous occupant," thereby defeating the protective  
          intent of this disclosure restriction.

          This bill would rephrase the existing disclosure restriction to  
          state instead that an owner of real property "is not required to  
          disclose . . . [t]hat an occupant of that property was living  
          with human immunodeficiency virus (HIV)," noting that HIV status  
          is not a material fact to a real estate transaction requiring  
          disclosure.  This bill would also, according to the AIDS  
          Project, "remove outdated and stigmatizing language referring to  
          HIV and bring the code up to date with current medical  
          terminology."  With the proposed changes in phrasing, this bill  







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          should clarify that sellers of real property with HIV are not  
          required to disclose their medical condition to potential  
          purchasers, thereby protecting the privacy interest such sellers  
          have in controlling the dissemination of their personal medical  
          information.

           3.Amendment regarding AIDS-related complications
           
          While the changes proposed to existing law in this bill would  
          clarify that a property occupant's HIV status is not a material  
          condition requiring disclosure during the sale or transfer of  
          real property, it may not be clear that an occupant's death from  
          AIDS-related complications is likewise not subject to  
          disclosure.  The author offers the following amendment to  
          clarify that an owner of real property, his or her agent, or any  
          agent of a transferee of real property, has no duty to disclose  
          that an occupant of the property being transferred died from  
          AIDS-related complications.

             Author's Amendment  :
            On page 3, line 28, after "(HIV)," insert: "or died from  
            AIDS-related complications"


           Support  :  American Civil Liberties Union of California;  
          California Apartment Association

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  AIDS Project of Los Angeles; Los Angeles LGBT Center

           Related Pending Legislation  :  None Known



           Prior Legislation  :

          SB 324 (Davis, Ch. 292, Stats. 1987) provided that no cause of  
          action arises against the owner of real property, or his or her  
          agent, or the agent of the transferee of a property, for the  
          failure to disclose that an occupant of that property died from  
          the virus that causes acquired immune deficiency syndrome.  This  
          bill also immunized owners of real property and their agents  







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          from causes of action based on their failure to disclose the  
          fact or manner of the death of an occupant that occurred more  
          than three years prior to transfer, but provided that such  
          immunity did not extend to intentional misrepresentations  
          concerning deaths on the property in response to a direct  
          inquiry from a transferee.

          SB 2484 (Roberti, Ch. 498, Stats. 1986) provided that no cause  
          of action arises against the owner of real property, or his or  
          her agent, or the agent of the transferee of a property, for the  
          failure to disclose that an occupant of that property was  
          afflicted with the virus that causes acquired immune deficiency  
          syndrome.

           Prior Vote  :  Prior votes not relevant.

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