BILL ANALYSIS
SB 782
Page 1
Date of Hearing: June 30, 2008
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 782 (Yee) - As Amended: June 25, 2009
As Proposed to Be Amended
SENATE VOTE : 21-18
SUBJECT : Residential Tenancies: Domestic Violence
KEY ISSUE : Should A victim of domestic violence be protected
from EVICTION in an unlawful detainer action, IF the unlawful
detainer action is based upon the violent acts of the victim's
ABUSER?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
According to the author, there is a strong correlation between
domestic violence and homelessness. There may be many reasons
for this correlation, but the author believes that, in at least
some cases, when domestic violence creates a nuisance for other
tenants - e.g. by creating noise or frequent police calls - a
landlord may seek an unlawful detainer to regain possession of
the unit. When this happens, both the abuser and the victim are
kicked out and may become homeless. While landlords certainly
have the right, and even a legal obligation, to evict tenants
who are creating a nuisance, it seems intuitively unfair to
evict a victim of domestic violence because of the actions of
the abuser. This bill, as originally introduced, was based on
an ordinance adopted recently by the Board of Supervisors of the
City and County of San Francisco. That ordinance permits a
victim of domestic violence to raise an affirmative defense
against an unlawful detainer if the victim can show (1) that she
is a victim of domestic violence, sexual assault or stalking;
and (2) the substantial reason for the unlawful detainer stems
from the acts of domestic violence. As most recently amended,
in order to prevent the victim from being named in the unlawful
detainer in the first place, the bill now creates a two-tier
process that would (1) allow a victim to ask her landlord to
seek a "partial eviction" against only the abuser, while
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allowing the victim and other innocent household members to
stay; and (2) if the landlord chooses not to seek the requested
partial eviction but proceeds against the entire household with
an unlawful detainer, then at that time the victim will retain a
right to raise a defense against the unlawful detainer.
Although the author, supporters, and opponents are coming very
close to an agreement, time constraints may require that the
final amendments be made on the Assembly Floor if the bill
passes out of this Committee. The bill is supported by domestic
violence victim groups, housing law reform group, and the
district attorneys of San Francisco and Los Angeles; it is
opposed by two regional apartment owner associations. The
California Apartment Association, which is presently neutral,
would like to take a "support" position and has been working
with the author and Committee staff toward that end.
SUMMARY : Creates a process for preventing the eviction of a
victim of domestic violence, sexual abuse, or stalking if both
of the following are true: (1) the tenant, or a member of the
tenant's household, has been a victim of domestic violence,
sexual assault or stalking, and (2) the notice to vacate is
substantially based upon an act or acts of domestic violence,
sexual assault, or stalking perpetrated against the tenant or a
member of the tenant's household. Specifically, this bill :
1)Makes findings and declarations relating to the problem of
domestic violence in California and the United States, and the
probable link between domestic violence and female
homelessness.
2)Provides that if a landlord has issued a notice to quit, a
tenant may request that the landlord seek a partial eviction
ordering the removal of another tenant if all of the following
are true:
a) The tenant seeking the partial eviction or a member of
his or her household is a victim of an act or acts that
constitute domestic violence, sexual assault, or stalking.
b) The notice to quit is substantially based on the act or
acts against the tenant seeking the partial eviction or a
member of his or her household that constitute domestic
violence, sexual abuse, or stalking, including, but not
limited to, a notice to quit based on complaints of noise,
disturbances, or repeated presence of police.
c) The tenant seeking the partial eviction provides the
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landlord with a written declaration, signed under penalty
of perjury, setting forth the act or acts constituting
domestic violence, sexual abuse, or stalking against
himself or herself or a member of his or her household and
identifies the other tenant who has committed the act or
acts.
d) The tenant seeking the partial eviction is not the
tenant who committed the acts of domestic violence, sexual
assault, or stalking.
3)If the landlord chooses to seek a partial eviction of the
tenant who committed the act or acts of domestic violence,
sexual abuse or stalking, and the court deems that (a) and (b)
of #2 above are true, then the court shall terminate the
tenancy of the person who committed the act or acts of
domestic violence, sexual assault, or stalking, while allowing
the tenancy of the remainder of the tenants to continue
undisturbed.
4)If the landlord chooses not to seek a partial eviction as
prescribed in # 3 above and instead brings an unlawful
detainer for repossession of the property, a tenant may raise
a defense to the unlawful detainer alleging the following:
a) The tenant seeking the partial eviction or a member of
his or her household is a victim of an act or acts that
constitute domestic violence, sexual assault, or stalking.
b) The unlawful detainer is substantially based on the act
or acts against the tenant seeking the partial eviction or
a member of his or her household that constitute domestic
violence, sexual abuse, or stalking.
5)If the court determines that both (a) and (b) in #4 above are
true, then the tenant, and members of the tenant's household,
other than a member who committed the act or acts of domestic
violence, sexual assault, or stalking, shall not be evicted
based on acts substantially related to the domestic violence.
6)If the court determines that both (a) and (b) in #4 are true,
then the tenant who committed the act or acts of domestic
violence, sexual abuse, or stalking, shall be evicted. The
defense described in this bill shall not be available to the
tenant that committed the act or acts of domestic violence.
7)For purposes of this bill:
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a) "Household member" means a member of the tenant's family
who lives in the same household as the tenant.
b) "Victim of domestic violence, sexual assault, or
stalking" means any person who has been, or is currently
being, subjected to one or more of the following: domestic
violence as defined in Section 6211 of the Family Code or
Section 13700 of the Penal Code; sexual assault as defined
in Section 261, 261.5, 262, 286, 288a, or 289 of the Penal
Code; stalking as defined in Section 13700 of the Penal
Code.
8)Specifies that nothing in this bill shall be construed to
affect the tenant's liability for delinquent rent or other
sums owed to the landlord, or the landlord's remedies in
recovering those funds.
9)Provides that the landlord shall retain in strictest
confidence all information regarding any act or acts of
domestic violence, sexual assault, or stalking that is
received in confidence from a tenant or a tenant's household
member who is a victim, except to the extent necessary to
provide a reasonable accommodation for the victim, is
otherwise required by law, or is necessary to assist the court
in making the determinations under this bill. Specifies that
the victim may authorize a limited or general release, in
writing, of any information otherwise deemed confidential.
EXISTING LAW :
1)Permits a tenant or a household member who was a victim of
domestic violence, sexual assault, or stalking to terminate a
rental agreement and be discharged from rental payments due.
The tenant must provide the landlord with a copy of a
temporary restraining order, emergency protective order, or a
written report by a peace officer stating that the tenant or
household member has filed a police report alleging that the
tenant or household member is a victim of domestic violence,
sexual assault, or stalking. (Civil Code Section 1946.7.)
2)Permits a landlord to file an unlawful detainer action against
a tenant in order to evict him or her when, among other
things, the tenant has: (1) committed waste upon the premises
contrary to the conditions of the lease; or (2) committed or
maintained a nuisance upon the premises or permitted the
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nuisance to be committed or maintained. (Code of Civil
Procedure Section 1161(4).)
3)Permits a tenant to present evidence to support an affirmative
defense which, if proved, defeats the landlord's right to
possession. (Civil Code Section 1942.5.)
4)Provides, until January 1, 2012, that if a person commits an
act of domestic violence, sexual assault, or stalking against
another tenant on the premises there is a rebuttable
presumption that the person has committed a nuisance upon the
premises. This presumption does not apply if the victim or
his or her household member, other than the perpetrator, has
not vacated the premises. (Code of Civil Procedure Section
1161.)
COMMENTS : This bill is in some ways the inverse of last year'
AB 2052 (Chapter 440, Stats. of 2008), which was also heard by
this Committee. Last year's bill, which enacted, permits a
victim of domestic violence, sexual assault, or stalking to
terminate a lease and be discharged from payment of any rent for
any period after 30 days of providing the notice. That bill
recognized that victims hoping to escape a violent domestic
situation were sometimes limited in their options because of
long-term leases. During the negotiations on that bill, the
opponents - namely the same apartment owners associations who
oppose this present bill - claimed that if a tenant could
terminate a lease early based on abuse committed by another
tenant, then the landlord should be permitted to evict the
offending tenant. However, proponents of last year's bill
argued that (1) landlords already had the power to bring an
unlawful detainer action against a tenant who violated the law
or was a nuisance to other tenants; and (2) evicting the abuser
immediately after the victim provided notice might discourage
victims from making use of the law and potentially put the
victim in greater danger. As a compromise, last year's bill
amended the unlawful detainer law to provide that the commission
of acts of domestic violence, sexual assault, or stalking
created a rebuttable presumption that the person committing the
acts had created a nuisance that was grounds for eviction.
While last year's bill created a way for a victim of domestic
violence to leave a rental unit, by terminating a long-term
lease, the present measure creates a way for the victim of
domestic violence to stay in the rental unit while evicting the
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abuser. In many cases, acts of domestic violence disturb the
quiet enjoyment of neighbors, generate police calls, and
generally create a nuisance for other tenants. When this
happens too frequently, the landlord can seek to evict the
entire household for creating a nuisance. Unfortunately, this
often leads to the eviction of the innocent victim as well as
the violent abuser. This bill is premised on the
straightforward assumption that it is simply unfair to evict a
victim of domestic violence because of the conduct of the
abuser.
Therefore, this bill seeks to a two-tier approach that would (1)
allow a victim to ask the landlord to seek a "partial eviction"
against only the abuser, while allowing the victim to stay; and
(2) if the landlord chooses not to seek a partial eviction but
proceeds against the entire household with an unlawful detainer,
then at that time the victim will retain a right to raise a
defense against the unlawful detainer.
ARGUMENTS IN SUPPORT : In support of this bill, the author
writes:
Existing law does offer some protections to victims of
domestic violence. If [people find] themselves in a
situation where they must leave their homes due to
violence, they can, under court discretion, break a lease
without penalty in order to relocate to a safe
environment. However the reverse option is not
available. There are no protections offered to domestic
violence/stalking victims currently in place that protect
them from being evicted from their housing based on
crimes committed against them.
The National Housing Law Project (NHLP) supports the measure,
stating that it will "protect the safety of victims by ensuring
that they can call the police or seek a restraining order
without fear of being evicted." NHLP writes:
Studies, congressional findings, and our own work have
shown that families are being evicted because of their
status as victims of domestic violence. Many victims are
afraid to call the police or obtain a restraining order
to exclude their abusers from their homes for fear that
they will be evicted. Domestic violence is a leading
cause of homelessness among women in several California
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cities, in part because victims face severe obstacles to
obtaining alternative housing once they have been evicted
due to the abuser's criminal acts. Under the Violence
Against Women Act (VAWA), thousands of federally
subsidized landlords in California are barred from
evicting Section 8 tenants based on their status as
victims of domestic violence. VAWA has saved numerous
victims from homelessness. Victims in unsubsidized
housing should be given similar protections.
ARGUMENTS IN OPPOSITION: The bill is opposed by the Apartment
Association, California Southern Cities and the Orange County
Apartment Association. (The California Apartment Association
has apparently taken a neutral position thus far and has been
working with the author to move toward a "support" position if
possible.)
According to the opponents, this bill proposes "a novel,
illusory, and easily misunderstood law; a civil proceeding that
would permit a victim of domestic violence AND THE AGGRESSOR a
right to remain in a rental property." Both in its letters and
oral communications to Committee staff, the opponents have
expressed their concern that many provisions of the bill, while
laudably seeking to find ways to allow the innocent victim to
stay, end up making it much more difficult, if not impossible,
for the landlord to evict the abuser who is creating a nuisance
on the property. Some, but by no means all, of the objections
raised by opponents have been addressed by recent amendments.
For example, the opponents cite the following problems, which
are followed by responses to these points made by the author's
staff, supporters, or Committee staff in this on-going dialogue:
This bill purports to permit a landlord to seek a "partial
eviction" of a single tenant when the existing unlawful
detainer law does not provide for such a partial eviction.
That is, an unlawful detainer is an order to terminate the
tenancy and regain possession of the rental property. It
thereby terminates the tenancy of all occupants. ( Response :
While this is an accurate description of existing law, there
are nonetheless existing pilot projects that do in fact allow
courts to issue "partial evictions" that evict one or more
tenants while allowing others to stay. In cases involving
illegal drugs and weapons, for example, either landlords or
law enforcement can bring unlawful detainer actions and the
court may issue a partial eviction against only those tenants
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engaging in the unlawful acts, while allowing others to stay.
There are important differences to be sure: most notably, the
partial eviction in the drug and weapon abatement law is
ordered by the court after there has been a UD filed. Under
this bill, rather than the court making this decision after
the UD has been brought, a landlord would be permitted to
bring an action for a partial eviction naming only the abuser.
The advantage of this approach is that the victim is never
named in the UD, thereby avoiding the negative impact that a
UD action can have on a person's credit and rental record.)
Opponents claim that the "partial eviction" process will only
work if the victim is forced to testify against the abuser in
court. Opponents argue that without the victim's testimony,
landlords will not have sufficient evidence to secure an
eviction. ( Response : While not having the victim's testimony
will make it more difficult to obtain a conviction, the
landlord seeking partial eviction can still rely on the
victim's sworn written declaration and the testimony of other
tenants. Especially if the reason for the eviction is that
neighbors have complained about noise or police visits, those
other tenants would be available to testify. Moreover,
domestic violence victims groups believe that if victims are
forced to confront their abusers in court, they will be more
reluctant to make use of the provisions of this bill.)
Opponents express concerns about the bill's confidentiality
provisions and its possible effect on a landlord's ability to
evict an abuser, since the victim's reports may be the
strongest evidence of domestic abuse. Opponents also contend
that the bill is unclear as to how the landlord will know
which statements made by a victim were made "in confidence."
( Response : The author has partly responded to this concern by
taking an amendment that specifies that the landlord can
disclose information if "necessary to assist the court in
making determinations under" the provisions of the bill. It
is not clear if this completely addresses the opposition's
concerns.)
Finally, opponents argue that this bill is inconsistent with
the late amendments made to last year's AB 2052. As noted
above, that negotiated amendment created a "rebuttable
presumption" the acts of domestic violence constituted a
nuisance subject to an unlawful detainer action. However, the
amendment also stated that the presumption did not apply if
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the victim did not plan to vacate the premises. (That is, the
presumption envisioned the scenario in which the victim sought
to get out of a lease and leave the unit.) Opponents point
out that under the terms of this bill, the victim is, by
definition, planning to remain in the premises. This would of
course defeat the rebuttable presumption that the opponents
sought last year. ( Response : The opponents are correct that
landlords could not invoke the rebuttable presumption against
the abuser if the victim wanted to stay. But this does not
mean that the landlord cannot evict the abuser; it simply
means that the landlord will need to provide evidence that the
abuser has created a nuisance. Presumably, if the landlord is
seeking an unlawful detainer, it is because he or she has such
evidence. Nonetheless, if the author intends to take an
amendment on the Assembly Floor, he may wish to consider
whether this bill needs to be reconciled with the rebuttable
presumption created in last year's bill.)
Proposed Author Amendment : In the last revision of the bill, a
provision allowing a court to order an immediate eviction and
issue a stay away order against the abuser was deleted. The
author wishes to re-insert it. Therefore,
On page 6 after line 20 insert:
(4) (A) If the person who committed the act or acts of domestic
violence, sexual abuse, or stalking is a lessee and is an actual
and imminent threat to safety of persons on the premises, a
court may order that lessee's immediate eviction and issue
against that lessee an order to stay away from the premises.
(B) if the person who committed the act or acts of domestic
violence, sexual abuse, or stalking is not a lessee and is an
actual and imminent threat to the safety of other persons on the
premises, the court may issue an order against that person to
stay away from the premises.
Technical Amendments:
On page 6 line 4 change "notice to quit" to "unlawful
detainer action"
On page 6 line 7 change "notice to quit" to "unlawful
detainer action"
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Recent Related Legislation . AB 2052 (Lieu, Chapter 440, Stats.
of 2008) authorizes a tenant to notify the landlord in writing,
and with supporting documentation, that he/she or a household
member, as defined, was a victim of an act of domestic violence,
sexual assault, or stalking, as defined, and intends to
terminate the tenancy. A tenant who quits the premises under
this provision is discharged from payment of rent for any period
following 30 days from the date of the notice.
REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco District Attorney Kamala Harris (sponsor)
California Partnership to End Domestic Violence
California Rural Legal Assistance Foundation
City and County of San Francisco, Department on the Status of
Women
Los Angeles County District Attorney's Office
National Housing Law Project
Western Center on Law & Poverty
Opposition
Apartment Association, California Southern Cities
Orange County Apartment Associations
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334