BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 985|
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THIRD READING
Bill No: AB 985
Author: De La Torre (D), et al
Amended: 9/4/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/16/09
AYES: Corbett, Harman, Florez, Leno, Walters
SENATE APPROPRIATIONS COMMITTEE : 12-1, 8/27/09
AYES: Kehoe, Corbett, Denham, Hancock, Leno, Oropeza,
Price, Runner, Walters, Wolk, Wyland, Yee
NOES: Cox
ASSEMBLY FLOOR : 71-0, 5/14/09 - See last page for vote
SUBJECT : Real property: discriminatory restrictions
SOURCE : Author
DIGEST : This bill allows a title insurance company,
escrow company, real estate broker, real estate agent, or
other person to record a Restrictive Convenant Modification
(RCM), and requires the county recorder to notify the owner
of the property of the request.
This bill makes other changes to facilitate the removal of
unlawfully restrictive covenants, including: (1) requiring
RCM forms to be provided with instructions; (2) allowing
for batch processing or submission on behalf of several
homes or lots; and (3) requiring county counsel to make a
CONTINUED
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determination about the lawfulness of a covenant within a
reasonable amount of time.
This bill requires county recorders to create a dual
records system made up of "official records" which contain
the unlawful restriction but are exempt from disclosure
under the Public Records Act (except pursuant to a subpoena
or court order) and "public records" which are an exact
copy of the official record, but with the unlawful
restriction redacted.
Senate Floor Amendments of 9/4/09 modify fee provisions,
and add clarifying changes.
ANALYSIS : Existing law prohibits discrimination in
housing through restrictive covenants based on race, color,
religion, sex, sexual orientation, familial status, marital
status, disability, national origin, source of income, or
ancestry and provides that discrimination in housing
through a restrictive covenant includes the existence of a
restrictive covenant regardless of whether accompanied by a
statement that the covenant is repealed or void.
Existing law similarly declares that any provision in any
deed of real property in California that purports to
restrict the right of any person to sell, lease, rent, use,
or occupy the property to persons having any specified
characteristic, including, but not limited to, race, color,
religion, sex, marital status, national origin, ancestry,
familial status, disability, source of income, or sexual
orientation, by providing for payment of a penalty,
forfeiture, reverter, or otherwise, is void, except as
specified.
Existing law provides that any deed or other written
instrument that relates to title to real property, or any
written covenant, condition, or restriction annexed or made
a part of, by reference or otherwise, any deed or
instrument, that contains any provision that purports to
forbid, restrict, or condition the right of any person or
persons to sell, buy, lease, rent, use, or occupy the
property on account of any of the above-specified
characteristics, shall be deemed to be revised to omit that
provision.
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Existing law also authorizes a person who holds an
ownership interest of record in property that he/she
believes is the subject of an unlawfully restrictive
covenant based on race, color, religion, sex, sexual
orientation, familial status, marital status, disability,
national origin, source of income, or ancestry, to record a
RCM, which includes a copy of the original document with
the illegal language stricken. Before recording the
modification document, the county recorder is required to
submit the modification document and the original document
to the county counsel who is required to determine whether
the original document contains an unlawful restriction
based on race, color, religion, sex, sexual orientation,
familial status, marital status, disability, national
origin, source of income, or ancestry. The county recorder
is required to make RCM forms available to the public.
Under existing law, a county recorder, title insurance
company, escrow company, real estate broker, real estate
agent, or association that provides a copy of a
declaration, governing document, or deed to any person is
required to place a cover page or stamp on the previously
recorded document stating that if the document contains an
unlawful restriction, that restriction is void and may be
removed by recording a RCM.
This bill requires a county recorder, title insurance
company, escrow company, real estate broker, real estate
agent, or association that provides a copy of a
declaration, governing document, or deed to a person who
holds an ownership interest of record in property to also
provide a RCM form with specified procedural information to
that person. The bill authorizes a title insurance
company, escrow company, real estate broker, real estate
agent, or other person to record a RCM, in addition to the
owner of record, and requires the requester to provide a
return address in order for the county recorder to notify
the interested party of the action taken by county counsel
on the respective property. The bill requires the county
counsel to make its determination whether the language
identified by the requester in the original document
contains an unlawful restriction within a reasonable period
of time, not to exceed three months, as specified, and
authorizes the county counsel to compile a list of phrases
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identified as unlawfully restrictive language for the
purpose of expediting that determination. The bill
requires the county recorder to make RCM forms available to
the public onsite in an appropriately designated area, and
permits multiple submissions on behalf of different homes
and for processing homes in batches with respect to a
modification document that affects multiple homes or lots.
Existing law requires the recorder of each county to
establish a social security number truncation program in
order to create a public record version of each official
record so that the public record is in an electronic format
and is an exact copy of the official record, except that
any social security number contained in the official record
shall be truncated by redacting the first 5 digits of that
number. These provisions apply to any document recorded
since January 1, 1980, as specified. If a public record
version of an official record exists, and upon a request of
any person to inspect, copy, or to otherwise publicly
disclose that record, the recorder shall make available
only the public record version of that record, and publicly
disclose the official record only in response to a subpoena
or court order. The county recorder may, upon
authorization of the board of supervisors, charge an
additional fee of one dollar for recording the first page
of each document to be used to implement a social security
number truncation program pursuant to these provisions.
The county auditor is required, at the request of the
county board of supervisors, to verify that these fees are
used only for the purpose of the program.
This bill requires the recorder of each county to create a
public record version of each official record for which a
restrictive covenant modification is recorded on or after
January 1, 2010, so that the public record is in an
electronic format and is an exact copy of the official
record, except that any unlawfully restrictive covenant
contained in the official record shall be redacted. The
bill specifies that an electronic version of the unredacted
record, for which a Restrictive Covenant Modification is
recorded, becomes the official record for the purposes of
these provisions.
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This bill provides if a public record version of an
official record exists, and upon request of any person to
inspect, copy, or to otherwise publicly disclose that
record, the recorder shall make available only the public
record version of that record, and publicly disclose the
official record only in response to a subpoena or court
order.
The bill provides that the county recorder shall not incur
any liability for a procedural, clerical, or administrative
error in the recording of a modification document or any
other activity related to the redaction of an unlawfully
restrictive covenant pursuant to these provisions. The
bill also exempts the county counsel from liability, as
specified. The bill requires the county recorder, as
specified, to charge an initial fee or not more than
two-dollars to cover the actual costs of administration for
recording the first page of each document to be used by the
county for the sole purpose of performing activities
related to the redaction of an unlawfully restrictive
covenant pursuant to these provisions.
The bill requires the board of supervisors to adjust the
fee to a whole dollar amount reasonably sufficient to
recover costs.
This bill makes legislative findings that any limitation on
the public's right of access to the writings of public
officials and agencies made by its provisions is necessary
to protect against the risk of discrimination.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11
2011-12 Fund
New State Mandates Unknown,
potentially substantial General
on County Recorders
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SUPPORT : (Verified 9/8/09)
American Civil Liberties Union;
Asian Americans for Civil Rights & Equality
Asian Pacific American Legal Center
California State Conference of the NAACP
Equality California
Jewish Community Relations Council of San Francisco, the
Peninsula,
Marin, Sonoma, Alameda and Contra Costa Counties
Mexican American Legal Defense and Educational Fund
North Monterey County League of United Latin America
Citizens
San Francisco Chapter of the Japanese American Citizens
League
ARGUMENTS IN SUPPORT : According to the author's office,
this bill addresses one of the most disgraceful
discriminatory practices in California's history.
Previously, homeowners were allowed to insert
discriminatory language into deeds and covenants
prohibiting the sale of their home to members of specific
ethnic groups, religions, or characteristics. Although
these once lawful restrictive covenants are no longer
enforced, this offensive language excludes groups from
owning property by sometimes using derogatory terms for a
particular race and/or ethnicity.
ASSEMBLY FLOOR :
AYES: Adams, Anderson, Arambula, Beall, Bill Berryhill,
Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuller, Furutani, Galgiani, Gilmore, Hagman, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,
Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza,
Miller, Monning, Nava, Nestande, Niello, Nielsen, John A.
Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas,
Silva, Skinner, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada
NO VOTE RECORDED: Ammiano, Fuentes, Gaines, Garrick, Hall,
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Harkey, Saldana, Smyth, Bass
RJG:do 9/8/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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