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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