BILL ANALYSIS Ó
AB 73
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Date of Hearing: August 25, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 73
Waldron - As Amended August 18, 2016
FOR CONCURRENCE
SUBJECT: Real property: disclosure
KEY ISSUE: Should existing law be clarified to affirmatively
state that the owner of real property, or his or her agent, is
not required to disclose to a prospective buyer or renter the
HIV/AIDs Status of a previous occupant?
SYNOPSIS
This non-controversial bill clarifies existing law by
affirmatively stating that the owner of real property is not
required to disclose the HIV status of a previous occupant of
the property, or whether the occupant had or died of AIDS, when
selling, leasing, or renting a home. In the mid-1980s, in
response to misconceptions about how the HIV virus was
transmitted and to protect persons with HIV/AIDS from
discrimination, the Legislature enacted legislation designed to
free owners of real property, or their agents, from any duty to
disclose to a prospective buyer or renter that an occupant of
the property either had HIV or died from AIDS-related
complications. However, the original legislation did not
affirmatively state there was no duty to disclose this
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information; rather, the legislation stated that "no cause of
action arises" against the owner 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). While existing
law clearly states that there is no cause of action for failure
to disclose, owners and agents reportedly remain uncertain as to
whether or not there is a duty to disclose. The author contends
that existing law has caused confusion among some homeowners and
realtors due to the specific mention of HIV in the statute.
Clearly, the intent of the original legislation was not only to
state that there could be no cause of action for failure to
disclose, but impliedly, that there is no duty to disclose. As
a practical matter, that is, one does not have a legal "duty" if
there are no consequences for not performing that duty. Be that
as it may, this bill would make it abundantly clear that neither
the owner of real property, nor his or her agent, is under any
duty or requirement to disclose to a buyer or renter of the
property that an occupant of the property had or died from HIV
or AIDS, as these are not material facts that require
disclosure. The bill would also specify, consistent with
existing law, that no cause of action shall arise for failure to
disclose such information. This bill is co-sponsored by the
AIDS Project Los Angeles and the Los Angeles LGBT Center, and it
is supported by the ACLU and the California Apartment
Association. There is no known opposition to this bill.
SUMMARY: 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)
or died from AIDS-related complications. Specifically this
bill:
1)Provides that an owner of real property or his or her agent,
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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 that 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)Specifies 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 described 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.)
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
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Code Section 1710.2.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
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 took various 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 in 1986 and
SB 324 in 1987, the Legislature enacted legislation designed to
free sellers or renters of real property, or their agents, from
any duty to disclose to a prospective buyer or renter that an
occupant of the property either had, or died from, HIV or
AIDS-related complications. However, the original legislation
did not affirmatively state there was no duty to disclose 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, on the other hand, 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, or died from,
HIV or AIDS. According to the author, while existing law may
clearly state that there is no cause of action for failure to
disclose, many property owners and agents remain uncertain as to
whether or not there is a duty to disclose. The author and
co-sponsors contend that this provision of the law (Civil Code
Section 1710.2) has caused confusion among some homeowners and
realtors because of the specific mention of HIV within the
statute. Clearly, the intent of the original legislation was
not only to state that there could be no cause of action for
failure to disclose; if there were no cause of action then,
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impliedly, there was 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, property owners and their agents reportedly remain
uncertain about this; therefore, this bill would make it
abundantly clear that neither the owner of real property, nor
his or her agent, is under any duty or requirement to disclose
that an previous occupant of the property had or died from HIV
or AIDS, as these are not material facts that require
disclosure. The bill would also specify, consistent with
existing law, that no cause of action shall arise for failure to
disclose such information.
ARGUMENTS IN SUPPORT: According to AIDS Project Los Angeles
(APLA) and the Los Angeles LGBT Center, the co-sponsors of this
bill, while existing law (Civil Code Section 1710.2) protects
"people living with HIV from discrimination when selling or
renting real estate . . . in practice, the specific mention of
HIV causes confusion for many homeowners and real estate agents.
In fact, many believe they are required to disclose the
HIV-status of a previous occupant." The co-sponsors believe
that this bill will address this confusion by clarifying the
intent of the existing statute - which is "to protect people
living with HIV and their families from having personal medical
information mistakenly and unnecessarily revealed."
The California Apartment Association (CAA) similarly contends
that "the current statute has created some confusion for
property owners and realtors who have made an assumption that a
disclosure is required when the previous occupant was afflicted
with HIV or AIDS." CAA "believes this was not the intent of the
law nor should it be."
REGISTERED SUPPORT / OPPOSITION:
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Support
AIDS Project Los Angeles (co-sponsor)
Los Angeles LGBT Center (co-sponsor)
ACLU
California Apartment Association
ViiV Healthcare
Opposition
None on file
Analysis Prepared by:Thomas Clark /JUD./(916) 319-2339
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