BILL ANALYSIS �
AB 2557
Page 1
ASSEMBLY THIRD READING
AB 2557 (Feuer)
As Amended May 1, 2012
Majority vote
JUDICIARY 6-3
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|Ayes:|Feuer, Atkins, Dickinson, | | |
| |Monning, Wieckowski, | | |
| |Alejo | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Gorell, Jones | | |
| | | | |
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SUMMARY : Provides injunctive relief to a person whose property is
injuriously affected by a neighboring owner's failure to maintain a
vacant foreclosed residential property and permits a city attorney,
county counsel, or district attorney to seek the appointment of a
receiver for a substandard building. Specifically, this bill :
1)Permits a person whose property is injuriously affected or whose
enjoyment is lessened by another property owner's failure to
maintain a vacant foreclosed property to bring an action for
injunctive relief. Specifies that an action may be brought in
either a small claims court or a superior court in which the
property is situated and requires the person seeking injunctive
relief to comply with the same notice requirements that local
governmental entities must comply with prior to imposing a fine.
Provides that a prevailing plaintiff in a superior court action
may recover court costs and reasonable attorney's fees.
2)Adds a city attorney, district attorney, and county counsel to the
list of persons and entities that may seek a court-appointed
receiver for a substandard building.
EXISTING LAW :
1)Requires, until January 1, 2013, a legal owner to maintain vacant
residential property purchased at a foreclosure sale or acquired
by that owner through foreclosure under a mortgage or deed of
trust. Authorizes a local governmental entity to impose civil
fines and penalties for failure to maintain that property of up to
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$1,000 per day for a violation.
2)Requires a governmental entity, prior to imposing the above fine,
to give the legal owner notice of the alleged violation, and
notice of the entity's intent to assess a civil fine if action is
commenced with 14 days to correct the violation and not completed
within 30 days. Requires that the legal owner be provided with a
hearing and an opportunity to contest any fine, as specified.
However a governmental entity may provide less than 30 days'
notice, as specified, if a specific condition of the property
threatens public health or safety.
3)Defines "failure to maintain," for purposes of the above, to mean
failure to care for the exterior of the property, including, but
not limited to, permitting excessive foliage growth that
diminishes the value of the surrounding properties, failing to
take action to prevent trespassers or squatters from remaining on
the property, or failing to take action to prevent the creation of
a public nuisance.
4)Specifies that fines and penalties collected pursuant to the above
shall be directed to local nuisance abatement programs; that a
governmental entity may not impose fines under both the above
provisions and a local ordinance; that the above provisions do not
preempt any local ordinance; and, that any rights and remedies
provided by the above provisions are cumulative and in addition to
any other rights and remedies provided by law.
5)Provides that if any building is constructed or maintained in
violation of any provision of law or regulation, as specified, or
if a nuisance exists in any building or upon the lot on which it
is situated, an enforcement agency shall, after 30 days' notice to
abate the nuisance or violation, institute any appropriate action
or proceeding to prevent, restrain, correct, or abate the
violation or nuisance. Provides that the enforcement agency shall
commence proceedings to abate the violation by repair,
rehabilitation, vacation, or demolition of the building, as
specified.
6)Provides that if a building is maintained in a manner that
violates the provisions of state or local law, and the violations
are so extensive and of such a nature that the health and safety
of residents or the public is substantially endangered, the
enforcement agency may issue an order or notice to repair or
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abate. If an owner fails to comply with the notice or order
within a reasonable time, the enforcement agency may ask the court
to appoint a receiver to take possession of the property and
correct the conditions that give rise to the nuisance or
violation. Specifies the powers and duties that shall be granted
to the receiver, including the power to make contracts and employ
contractors to correct the conditions cited in the violation; to
collect rents and income from the substandard building; and, to
borrow funds to pay for necessary repairs and secure a lien on the
property to secure that debt.
FISCAL EFFECT : None
COMMENTS : Existing law requires that owners of vacant foreclosed
properties maintain those properties and it permits local
governmental entities to fine owners if they fail to maintain them.
However, for a variety of reasons, including a lack of resources for
enforcement activity, local governments are often unable to take
full advantage of this law. Under this bill, however, if the owner
of the vacant property violates the law by failing to maintain the
property, a neighbor or other person whose property is injuriously
affected by the violation may seek an injunction forcing the owner
to correct the violation. In effect, the neighbors could obtain
through injunctive relief an outcome that local governments, for a
variety of reasons, are unable to obtain.
According to the author, the injunctive relief provided by this bill
is intended to supplement existing law; therefore, the cause of
action created by this bill is added and conforms to existing
provisions that already require legal owners to maintain their
vacant foreclosed properties. Existing law permits a local
government entity to issue a fine of up to $1,000 per day per
violation. However, local governments cannot always effectively use
this option, in part because of budgetary restrictions and in part
due to the geographically dispersed nature of the problem. This
bill, therefore, would permit persons who are most directly affected
by the blight - i.e., neighbors - to take action against a legal
owner who refuses to maintain his or her vacant foreclosed property
as required by law.
An existing state nuisance abatement law allows "any person whose
property is injuriously affected, or whose personal enjoyment is
lessened by a nuisance" to bring an action for damages or injunctive
relief. However, the definition of "nuisance" in this statute
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requires the offending conditions to rise to the level of being
"injurious to health," create "an obstruction to the free use of
property," or "obstruct free passage or use . . . of any navigable
river, bay, stream, canal, or basin, or any public park, square,
street, or highway." By comparison, that statute that would be
amended by this bill defines "failure to maintain" to include
"failure to care for the exterior of the property, including, but
not limited to, permitting excessive foliage growth that diminishes
the value of the surrounding properties, failing to take action to
prevent trespassers or squatters from remaining on the property, or
failing to take action to prevent mosquito larvae from growing in
standing water or other conditions that create a public nuisance."
While there is overlap between what constitutes an actionable
"nuisance" and what constitutes a "failure to maintain," some
violations that constitute a "failure to maintain," such as failure
to clear excessive foliage or maintain the exterior, might not
necessarily rise to the level of a "nuisance." Such violations
might adversely affect the value of neighboring properties or lessen
a neighbor's quiet enjoyment of property. This bill would allow a
neighbor to seek injunctive relief to correct a problem that
violates the existing duty to maintain the property but may not rise
to the formal definition of a nuisance.
Because the purpose of this bill is to allow neighbors to take
action against the same violations for which a local government
entity may seek a $1,000 per day fine, it would require the person
seeking the injunction to comply with the same notice requirements
that a local government must comply with before imposing a fine.
Specifically, existing law requires a local government entity that
chooses to impose a fine to give the legal owner notice of the
alleged violation, including a description of the conditions that
give rise to the allegation, and of the entity's intent to assess a
fine if action to correct the violation is not taken within a period
of less than 14 days and completed within a period of not less than
30 days. Similarly this bill would require a person seeking an
injunction to provide the legal owner with a written description of
the violation prior to seeking injunctive relief in the same manner
as a governmental entity seeking to impose a fine. Finally, this
provision of the bill would make injunctive relief more accessible
by expressly authorizing a person to seek the injunction in small
claims court, where filing fees are lower and attorneys are not
necessary. If, however, a person chooses to file in superior court
and attorneys must be used, then that person would be able to
recover reasonable attorney's fees.
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The receivership provision of this bill provides a relatively modest
and technical fix to existing law. Under existing law, an
enforcement agency, tenant, or tenant organization may seek a
receivership to take control of a substandard building for the
purpose of correcting violations of local or state building code.
When an enforcement agency seeks these receiverships it must rely
upon general counsel or city attorneys from the civil division to
bring the action "in the name of the City." However, some of the
larger cities divide their city attorney offices into civil and
criminal divisions; this sometimes means that criminal attorneys -
who often have the most experience in enforcing code violations -
cannot be involved in these actions. This bill would remedy this
largely technical problem by specifying that a city attorney, county
counsel, or district attorney could seek a receivership in "the name
of the people" and thereby clarify that the receivership can be
sought as an enforcement action and that the more experienced
criminal division attorneys can participate. The conditions that
justify seeking a receivership and the power of the receivers,
however, would remain unchanged.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003409