BILL ANALYSIS �
AB 2557
Page 1
ASSEMBLY THIRD READING
AB 2557 (Feuer)
As Amended May 25, 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, in the County of Los Angeles, for a period
of three years, 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
the 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
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deed of trust. Authorizes a local governmental entity to
impose civil fines and penalties for failure to maintain that
property of up to $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
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health and safety of residents or the public is substantially
endangered, the enforcement agency may issue an order or
notice to repair or 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. The bill is limited
to Los Angeles County, and would sunset in three years.
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.
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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 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.
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. 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 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 for seeking receivership and
the power of the receivers, however, would remain unchanged.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003752