BILL ANALYSIS                                                                                                                                                                                                    





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


          AB 1448 (Lopez)
          Version: June 16, 2015
          Hearing Date: July 7, 2015
          Fiscal: No
          Urgency: No
          TH


                                        SUBJECT
                                           
              Personal Energy Conservation: Real Property Restrictions

                                      DESCRIPTION  

          This bill would require a landlord to allow a tenant to use a  
          clothesline or drying rack in the private area of a tenant's  
          rental tenancy if certain conditions are met, including that the  
          clothesline or drying rack will not interfere with the  
          maintenance of the rental property.  This bill would also render  
          any provision of a common interest development governing  
          document void and unenforceable if it effectively prohibits or  
          unreasonably restricts the use of a clothesline or a drying rack  
          in an owner's backyard.

                                      BACKGROUND  

          In California, common interest developments (CIDs) are governed  
          by the Davis-Stirling Common Interest Development Act.  Owners  
          of separate property in CIDs have an undivided interest in the  
          common property of the development and are subject to the CID's  
          covenants, conditions, and restrictions.  CIDs are also governed  
          by a homeowners association, which is run by volunteer directors  
          that may or may not have prior experience managing an  
          association.  The Court of Appeal, Fourth Appellate District,  
          previously observed that:

            [t]he homeowners associations function almost "as a second  
            municipal government, regulating many aspects of [the  
            homeowners'] daily lives."  "[U]pon analysis of the  
            association's functions, one clearly sees the association as  








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            a quasi-government entity paralleling in almost every case  
            the powers, duties, and responsibilities of a municipal  
            government.  As a 'mini-government,' the association  
            provides to its members, in almost every case, utility  
            services, road maintenance, street and common area lighting,  
            and refuse removal.  In many cases, it also provides  
            security services and various forms of communication within  
            the community.  There is, moreover, a clear analogy to the  
            municipal police and public safety functions. . . ."  In  
            short, homeowners associations, via their enforcement of the  
            CC&R's, provide many beneficial and desirable services that  
            permit a common interest development to flourish.  (Villa  
            Milano Homeowners Ass'n v. Il Davorge (2000) 84 Cal.App.4th  
            819, 836 [citations omitted].)

          Separately, existing landlord-tenant law regulates the terms and  
          conditions of residential tenancies, allowing landlords to  
          oversee the use of leased or rented real property in certain  
          circumstances, and providing specified tenant protections for  
          the use of rental property.  This bill would add to the  
          Davis-Stirling Act and to California's landlord-tenant laws  
          specific protections for homeowners and tenants to use  
          clothesline or drying racks on residential property under  
          specified conditions.

          This bill was heard by the Senate Transportation and Housing  
          Committee on June 23, 2015, and passed out on a vote of 8-1.

                                CHANGES TO EXISTING LAW
           
           1.Existing law  regulates the terms and conditions of residential  
            tenancies and generally requires a landlord to keep a rental  
            unit in a condition fit for occupancy.  (Civ. Code Sec. 1940  
            et seq.)

             Existing law  creates an implied covenant of quiet enjoyment in  
            every lease, requiring that the tenant shall not be disturbed  
            in his or her possession by the landlord.  (Civ. Code Sec.  
            1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.)

             Existing law  regulates the purposes for which a renter's  
            security deposit may be used, including, but not limited to,  
            compensating the landlord for default on payment of rent,  
            cleaning or repairing rented property, exclusive of normal  
            wear and tear, or remedying future obligations under the  







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            rental agreement, as specified.  (Code Civ. Proc. Sec. 1950.5  
            (a)-(e).)

             This bill  would provide that a tenant may utilize a  
            clothesline or drying rack in the tenant's private area if  
            approved by the landlord, and subject to reasonable time or  
            location restrictions, if all of the following conditions are  
            met:
                 the clothesline or drying rack will not interfere with  
               the maintenance of the rental property;
                 the clothesline or drying rack will not create a health  
               or safety hazard, block doorways, or interfere with  
               walkways or utility service equipment; and
                 the tenant seeks the landlord's consent before affixing  
               a clothesline to a building.

             This bill  would provide the following definitions:
                 The term "clothesline" means a cord, rope, or wire from  
               which laundered items may be hung to dry or air.  A  
               balcony, railing, awning, or other part of a structure or  
               building shall not qualify as a clothesline.
                 The term "drying rack" means an apparatus from which  
               laundered items may be hung to dry or air.  A balcony,  
               railing, awning, or other part of a structure or building  
               shall not qualify as a drying rack.
                 The term "private area" means an outdoor area or an area  
               in the tenant's premises enclosed by a wall or fence with  
               access from a door of the premises.  
            
            1.Existing law  , the Davis-Stirling Common Interest Development  
            Act, establishes the rules and regulations governing the  
            operation of a common interest development (CID) and the  
            respective rights and duties of a homeowners association (HOA)  
            and its members.  (Civ. Code Sec. 4000 et seq.)
          
             Existing law  permits the governing board of an HOA to adopt  
            operating rules that apply generally to the management and  
            operation of the CID or the conduct of the business and  
            affairs of an HOA, provided that the rule is within the  
            authority of the board to make, does not conflict with the  
            HOA's articles, bylaws, or governing law, and is reasonable.   
            (Civ. Code Secs. 4340, 4350.)

             Existing law  limits the authority of an HOA or the governing  
            documents of a CID to regulate the use of a member's separate  







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            interest.  (Civ. Code Sec. 4700 et seq.)

             This bill  would state that any provision of a CID governing  
            document shall be void and unenforceable if it effectively  
            prohibits or unreasonably restricts an owner's ability to use  
            a clothesline or drying rack in the owner's backyard.

             This bill  would not apply to reasonable restrictions imposed  
            by CID governing documents conditioning the use of a  
            clothesline or drying rack in an owner's backyard, and would  
            not prohibit an HOA from establishing and enforcing reasonable  
            rules governing clotheslines or drying racks.

             This bill  would apply only to backyards that are designated  
            for the exclusive use of the owner.

             This bill  would provide the following definitions:
                 "clothesline" means a cord, rope, or wire from which  
               laundered items may be hung to dry or air.  A balcony,  
               railing, awning, or other part of a structure or building  
               shall not qualify as a clothesline;
                 "drying rack" means an apparatus from which laundered  
               items may be hung to dry or air.  A balcony, railing,  
               awning, or other part of a structure or building shall not  
               qualify as a drying rack; and
                 "reasonable restrictions" means restrictions that do not  
               significantly increase the cost of using a clothesline or  
               drying rack.
          


                                        COMMENT
           
           1.Stated need for the bill
           
          The author writes:

            Nationwide, there is a growing movement to allow citizens the  
            personal freedom of hang-drying their clothing harnessing the  
            power of the sun.  Six states, Florida, Maine, Utah, Vermont,  
            Colorado, and Hawaii have a statute that overrides or strikes  
            all contractual and covenantal provisions prohibiting the use  
            of clotheslines.  The usage of a clothesline and the  
            harnessing of solar power promotes energy conservation in a  
            low-tech, low-cost manner.  







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            Using an indoor, electrical dryer is one of the top ten  
            energy-consuming household appliance[s].  According to the  
            United States Energy Information Administration, a typical  
            U.S. household could save an average 1,500 pounds of carbon  
            dioxide from being released into the atmosphere by foregoing  
            the use of an electric dryer and drying clothes using a  
            clothesline.  Unfortunately Californians are experiencing  
            utility shutoffs in large numbers and many Californians rely  
            on clotheslines to alleviate high energy costs. 

            However, in many locations across California, Homeowners'  
            Associations, Condo Associations, and Apartment Associations  
            deny a person's right to utilize the power of the sun,  
            limit[ing] a low-tech energy conservation tool, and  
            prevent[ing] the use of clotheslines, or hanging rack[s], to  
            dry your clothes.

            Due to the ambiguity in current law, many homeowners,  
            condominium, [and] apartment associations have an outright ban  
            on the use of clotheslines.  This ban prevents low-income  
            families and energy conscious persons from using a low-cost,  
            low-tech energy conservation tool.  This bill would ensure  
            that associations and landlords cannot enforce an outright  
            prohibition on the use of a clothesline or drying rack in a  
            person's private area if certain conditions are met.

           2.Clothes Dryer Energy Consumption
            
           "Clothes dryers can be one of the most expensive home appliances  
          to operate, using approximately 6 percent of a home's total  
          electricity usage."  (California Energy Commission, Clothes  
          Dryers  [as of Jun 24, 2015].)  A recent media  
          report states that "[d]ryers are the number two home appliance  
          in energy usage," and "[o]verall, dryers in the U.S. emit 32  
          million metric tons of carbon dioxide per year, according to the  
          Environmental Protection Agency, and use 43 billion kilowatt  
          hours and 443 million therms of natural gas."  (Laurie Reeves,  
          The Average Cost an Hour to Run a Dryer  
           [as of Jun. 24, 2015].)  According to the California Energy  
          Commission:

            Unlike other appliances, clothes dryers don't vary much from  







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            brand to brand and model to model in the amount of energy  
            used.  (That's why the Federal Trade Commission does not  
            require clothes dryers to have a yellow EnergyGuide label.)   
            All clothes dryers being sold today operate the same way -  
            they use electricity to turn a drum that tumbles clothes  
            through heated air to remove moisture.  But operating costs  
            vary depending if that air is heated by natural gas or  
            electricity.

            Electric dryers use heating coils, while gas dryers use a gas  
            burner to produce heat. Gas dryers cost approximately $50 more  
            to purchase initially, but since natural gas is usually less  
            costly than electricity, gas dryers cost less to operate.   
            Depending on your utility, drying a load of laundry can cost  
            between 32 to 41 cents in an electric dryer, or 15 to 33 cents  
            in a gas dryer.  Gas dryers tend to operate at a hotter  
            temperature than electric ones, so clothes can tumble in the  
            dryer for shorter periods, sparing the material and reducing  
            energy costs.  Thus a gas dryer can save you up to 50 percent  
            in energy costs.  (California Energy Commission, Clothes  
            Dryers  
             [as of Jun 24, 2015].)

          To avoid the costs and environmental impacts associated with  
          using clothes dryers, the Energy Commission recommends  
          individuals consider using clotheslines.  The Commission states:

            Let the heat of the sun dry your clothes, and [d]on't use the  
            clothes dryer at all.  Some homeowners' associations and  
            cities, however, have local CC&Rs that restrict the use of  
            clotheslines in planned communities.  So, check the covenants,  
            codes and restrictions covering your property to see if you  
            can use this effective, almost cost-free drying alternative.   
            But even if you can't use a clothesline, you can set up a  
            small standalone clothes rack to dry shirts and other small  
            items.  (Id.)
           
            3.Permissible use of Clotheslines and Drying Racks
           
          This bill would require homeowners associations in common  
          interest developments (CIDs) and landlords who rent residential  
          property to allow the use of clotheslines and drying racks in  
          private spaces under the exclusive control of an owner, in the  
          case of a common interest development, or a renter, in the case  







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          of a residential tenancy.  Renters would be authorized to use a  
          clothesline or drying rack in the private area of their tenancy,  
          like a backyard, if they get approval of their landlord and the  
          clothesline or drying rack does not interfere with the  
          maintenance of the rental property, does not create a health or  
          safety hazard, block doorways, or interfere with walkways or  
          utility service equipment, and if the tenant seeks the  
          landlord's consent before attaching a clothesline to a building.  
           Owners of separate interests in a CID would be free to use  
          clotheslines and drying racks, subject to reasonable  
          restrictions imposed by the CID, in backyards that are  
          designated for the exclusive use of the owner.  This bill would  
          not preclude CIDs from restricting the use of clotheslines in  
          other areas of a separate interest, like a front yard, or in  
          common areas.

          The Chinatown Community Development Center, writing in support,  
          states:

            Many clients from our housing counseling program are low  
            income and cannot afford professional laundry services and/or  
            do not have access to laundry facilities within their unit or  
            building.  In addition, through housing counseling, we have  
            seen landlords use doing laundry as a reason to evict tenants  
            from their homes.
            . . .
            AB 1448 would prevent the outright prohibition of a  
            clothesline in a person's private area.  Chinatown Community  
            Development Center understands that there may be a need to  
            regulate or apply certain limitations to such clothesline  
            usage; however an outright ban would be contrary to our  
            state's movement towards energy efficiency and environmental  
            consciousness.

           4.Clarifying Amendments
             
          As the author notes in Comment 1 above, the intent of this bill  
          is to ensure that homeowner associations and landlords cannot  
          enforce an outright prohibition on the use of a clothesline or  
          drying rack so long as certain conditions are met.  However, as  
          drafted, the section of the bill addressing landlords appears to  
          give them plenary authority to refuse a tenant's request to use  
          these implements, stating "a tenant may utilize a clothesline or  
          drying rack if approved by the landlord . . ."  To address this  
          incongruity, the author offers the following amendments which  







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          would clarify that approval may only be withheld if use of a  
          clothesline or drying rack would contravene the conditions  
          listed in the bill:

             Author's Amendments  :

            On page 2, lines 16 to 18, strike "if approved by the  
            landlord, and subject to reasonable time or location  
            restrictions,"

            On page 2, following line 26, insert: "(4) Use of the  
            clothesline or drying rack does not violate reasonable time or  
            location restrictions imposed by the landlord."


           Support  :  California Municipal Utilities Association; California  
          State Grange; Chinatown Community Development Center; Conference  
          of California Bar Associations; Consumer Federation of  
          California; Natural Resources Defense Council; Sebastopol Grange  
          # 306

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Utility Reform Network

           Related Pending Legislation  :  AB 349 (Gonzalez, 2015) would make  
          void and unenforceable any provision of the governing documents  
          or architectural or landscaping guidelines or policies of a  
          common interest development that prohibits use of artificial  
          turf or any other synthetic surface that resembles grass.  This  
          bill would also prohibit a common interest development from  
          requiring an owner of a separate interest remove or reverse  
          water-efficient landscaping measures, installed in response to a  
          declaration of a state of emergency, upon the conclusion of the  
          state of emergency.  This bill is pending in the Senate  
          Judiciary Committee.

           Prior Legislation  :

          AB 2561 (Bradford, Ch. 584, Stats. 2014) required landlords to  
          permit tenants to participate in personal agriculture in  
          portable containers approved by the landlord in the tenant's  
          private area so long as certain conditions are met.  This bill  







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          also rendered void any provision of a governing document of a  
          common interest development that effectively prohibited or  
          unreasonably restricted the use of a homeowner's backyard for  
          personal agriculture.

          AB 2565 (Muratsuchi, Ch. 529, Stats. 2014), among other things,  
          rendered void any term in a lease renewed or extended on or  
          after January 1, 2015, that conveys any possessory interest in  
          commercial property that either prohibits or unreasonably  
          restricts the installation or use of an electric vehicle  
          charging station in a parking space associated with that  
          commercial property.  This bill also prescribed requirements for  
          lessor approval of a lessee's request to install or use an  
          electronic vehicle charging station, and required that a lessor  
          approve a request to install a charging station if the lessee  
          agrees in writing to do specified acts, including paying for  
          various costs associated with the charging station and  
          maintaining insurance naming the lessor as an insured.

          SB 209 (Corbett, Ch. 121, Stats. 2011) rendered void and  
          unenforceable any covenant, restriction, or condition contained  
          in any deed, contract, security instrument, or other instrument  
          affecting the transfer or sale of any interest in a common  
          interest development, or any provision of the governing  
          documents of a common interest development, that effectively  
          prohibits or restricts the installation or use of an electrical  
          vehicle charging station.  This bill authorized a common  
          interest development to impose reasonable restrictions on the  
          approval and installation of those stations.

          AB 2376 (Bates, Ch. 346, Stats. 2004) required a homeowners  
          association to provide a fair and reasonable process for  
          reviewing a request by a homeowner for a physical alteration to  
          their unit or the common area.

           Prior Vote  :

          Senate Transportation and Housing Committee (Ayes 8, Noes 1)
          Assembly Floor (Ayes 52, Noes 18)
          Assembly Housing and Community Development Committee (Ayes 5,  
          Noes 2)
          Assembly Judiciary Committee (Ayes 6, Noes 3)

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