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 AB 73 (Waldron) Page 2 of ? 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 AB 73 (Waldron) Page 3 of ? 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 AB 73 (Waldron) Page 4 of ? 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 AB 73 (Waldron) Page 5 of ? 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 AB 73 (Waldron) Page 6 of ? 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. **************