BILL ANALYSIS Ó
AB 73
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CONCURRENCE IN SENATE AMENDMENTS
AB
73 (Waldron and Gipson)
As Amended August 18, 2016
2/3 vote. Urgency
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|ASSEMBLY: | |(January 25, |SENATE: |39-0 |(August 23, |
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(vote not relevant)
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|COMMITTEE VOTE: |9-0 |(August 25, |RECOMMENDATION: |concur |
| | |2016) | | |
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(Jud.)
Original Committee Reference: HEALTH.
SUMMARY: Specifies that the owner of real property, his or her
agent, or the agent of a transferee of real property, is not
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required to disclose that an occupant of the property being
transferred was living with human immunodeficiency virus (HIV),
and that no cause of action shall arise for failure to disclose
such information.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Provide 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:
a) 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.
b) That an occupant of that property was living with human
immunodeficiency virus (HIV) or died from AIDS-related
complications.
2)Specify that no cause of action shall arise against an owner
or his or her agent or any agent of a transferee for not
disclosing the facts in a) and b) above.
EXISTING LAW:
1) Requires the seller of real property, or his or her agent,
to provide a specified disclosure statement and make
specified disclosures relating to the real property before
transfer of title, or close of escrow, when transferring real
property. (Civil Code Sections 1102 et seq. and Sections
2079 et seq.)
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2) Provides that no cause of action shall arise against a real
property owner or agent, or any agent of a transferee of real
property, for the failure to disclose to the transferee the
occurrence or manner of an occupant's death where the death
has occurred more than three years prior the date of the
transferee's offer to purchase or lease the property, or that
an occupant of the property had or died from AIDS. (Civil
Code Section 1710.2.)
FISCAL EFFECT: None
COMMENTS: In the mid-1980s, in response to rampant
misconceptions about AIDS or how the HIV virus that causes it
could be transmitted from one person to another, lawmakers and
policy makers began to take steps to combat common
misconceptions, including the fear that the HIV virus could be
acquired by merely touching physical objects that had been
touched by a person with AIDS or HIV. With SB 284 (Ellis),
Chapter 513, Statutes of 1986, and SB 324 (Davis), Chapter 494,
Statutes of 1987, the Legislature enacted legislation designed
to free sellers or real property, or their agents, from any duty
to disclose to a prospective buyer that an occupant of the
property either had or died from AIDS. However, the original
legislation did not affirmatively state there was no duty to
disclosure this information; rather, the legislation stated that
"no cause of action arises" against the seller or agent for
failure to disclose such information. This bill, however, would
affirmatively state that the real property owner or agent is not
required to disclose the occurrence or manner of death of an
occupant, as specified, or that an occupant of the property was
living with human immunodeficiency virus (HIV). According to
the author, while existing law may clearly state that there is
no cause of action for failure to disclose, many sellers and
their agents remain uncertain as to whether or not there is a
duty to disclose. The author and co-sponsors contend that this
section caused confusion among some homeowners and realtors
because of the specific mention of HIV in the statute. Clearly,
the intent of the original legislation was not only to state
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that there could be no cause of action for failure to disclose,
but implicitly, because there could be no cause of action, there
was impliedly no duty to disclose. As a practical matter, that
is, one cannot be said to have a legal "duty" if there are no
consequences for not performing the duty. Be that as it may,
this bill would make it abundantly clear that neither the seller
of real property, nor his or her agent, is under any duty or
requirement to disclose that an occupant of the property had or
died from AIDS, as these are not material facts that require
disclosure. This bill would also specify, consistent with
existing law, that no cause of action shall arise for failure to
disclose such information.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0004930