BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1403 (Yee)
As Amended August 6, 2012
Hearing Date: August 15, 2012
Fiscal: No
Urgency: Yes
TW
SUBJECT
Domestic Violence: Permanent Restraining Orders and Elder Abuse
Orders
DESCRIPTION
Existing law allows a tenant to terminate his or her lease
within 180 days of the issuance of a temporary restraining
order, emergency protective order, or written report by a peace
officer alleging that the tenant, or household member, is a
victim of domestic violence, sexual assault, or stalking.
Existing law also prohibits a landlord from terminating a
tenancy or failing to renew a tenancy based upon an act or acts
against a tenant or a tenant's household member that constitute
domestic violence, sexual assault, or stalking if those acts
have been documented by a temporary restraining order, emergency
protective order, or written report by a peace officer.
This bill would extend these tenant protections to victims of
elder or dependent adult physical abuse. This bill would also
add protective orders to the list of qualifying documents that a
tenant may provide to a landlord to substantiate early
termination of a lease.
This bill is an urgency measure.
BACKGROUND
Victims of domestic violence, sexual assault, and stalking face
numerous challenges when seeking to regain control of their
lives. Depending on the situation, the victim may need to
change his or her phone number, participate in the Safe at Home
(more)
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Program through the Secretary of State, or even move, to create
a safe environment for themselves and their family. Victims who
rent their home also face challenges in their ability to leave a
dangerous environment if they are currently in a long-term
lease.
In response to concerns about the inability for victims to
terminate their lease without liability, AB 2052 (Lieu, Ch. 440,
Stats. 2008) allowed a tenant to terminate his or her lease
within 60 days of the issuance of a temporary restraining order,
emergency protective order, or written report by a peace officer
alleging that the tenant, or household member, is a victim of
domestic violence or stalking. Absent that protection, victims
who relocated could still be subject to liability under the
lease if the landlord did not agree to release the tenant from
his or her obligations. Subsequently, AB 588 (V. Manuel P�rez,
Ch. 76, Stats. 2011) increased the time period in which a tenant
may provide a notice to terminate tenancy from 60 to 180 days of
the issuance of a temporary restraining order, emergency
protective order, or written report by a peace officer alleging
that the tenant, or household member, is a victim of domestic
violence or stalking. Additionally, SB 782 (Yee, Ch. 626,
Stats. 2010) prohibited landlords from terminating or failing to
renew a tenancy based upon a documented act or acts against a
tenant or a tenant's household member that is a victim of
domestic violence, sexual assault, or stalking.
This bill would extend these tenant protections to a victim of
elder or dependent adult physical abuse. This bill would also
add protective order to the list of documents with which a
tenant-victim may substantiate the necessity for early
termination of a lease or rental agreement.
CHANGES TO EXISTING LAW
Existing law defines the rights and duties of landlord and
tenants, including presumptions regarding the terms of the
hiring, the lawful means of terminating a lease or rental
agreements, and the remedies available to the respective parties
in the event of a breach of a lease or rental agreement. (Civ.
Code Sec. 1940 et seq.)
Existing law provides that if a tenant or lessee of real
property breaches the lease and abandons the property before the
end of the term, the landlord may deem the lease terminated and
seek damages, or continue to perform under the lease and seek
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rent as it becomes due. (Civ. Code Sec. 1951.2; 250 LLC v.
Photopoint Corp. (2005) 131 Cal.App.4th 703.)
Existing law allows a tenant to terminate his or her tenancy if
the tenant, or a household member, was the victim of domestic
violence, sexual assault, or stalking. The notice to terminate
a tenancy must be in writing, with one of the following
attached: (1) copy of a temporary restraining order or emergency
protective order, as specified; or (2) copy of a written report
by a peace officer, as specified. (Civ. Code Sec.
1946.7(a)-(b).)
Existing law requires the notice to terminate tenancy to be
given within 180 days of the date that any order was issued, or
within 180 days of the date that any written report was made, or
the time period otherwise required for termination of tenancy.
(Civ. Code Sec. 1946.7(c).)
Existing law prohibits a landlord from terminating a tenancy or
failing to renew a tenancy based upon an act or acts against a
tenant or a tenant's household member that constitute domestic
violence, sexual assault, or stalking if the acts of domestic
violence, sexual assault, or stalking have been documented by a
temporary restraining order, emergency protective order, or a
copy of a written report by a peace officer. (Code Civ. Proc.
Sec. 1161.3(a).)
This bill would also allow a tenant to terminate his or her
tenancy if the tenant or a household member was the victim of
elder or dependent adult physical abuse.
This bill would prohibit a landlord from terminating a tenancy
or failing to renew a tenancy based upon an act or acts against
a tenant or a tenant's household member that constitute elder or
dependent adult abuse.
This bill would add to the list of documents with which a tenant
may substantiate the need for early termination of a lease or
rental agreement based upon domestic violence, sexual assault,
or stalking obtains a protective order.
This bill contains an urgency clause.
COMMENT
1. Stated need for the bill
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According to the author:
Existing law allows victims of certain violent acts to
terminate a tenancy before the end of the tenancy agreement to
allow them to leave a potentially dangerous environment,
however when the list of vulnerable victims was constructed it
left out victims of elder and dependent adult abuse. The acts
these victims have suffered are consistent with the acts of
domestic violence, sexual assault, or stalking, which are
listed in the existing code.
The list of documentation that is acceptable to end a
tenancy is a temporary restraining order, emergency
protective order, or a report by a peace officer. This bill
will add "protective order" to this list.
2. Extending existing tenant protections to victims of elder or
dependent adult abuse
Current law allows a victim of domestic violence, sexual
assault, or stalking to break a rental or lease agreement in
order to secure safety for himself or herself and the family.
Current law also prohibits a landlord from evicting a tenant who
is a victim of domestic violence, sexual assault, or stalking,
which has been documented through a temporary restraining order,
emergency protective order, or written report by a peace
officer. This bill would extend these provisions to victims of
elder or dependent adult physical abuse.
In support of this bill, the National Housing Law Project
argues:
As an example of why SB 1403 is needed, in one case an elderly
woman had been raped by her caretaker but was too frightened
and intimidated to report the incident to police. A judge
granted the woman an elder abuse restraining order against the
caretaker based on other abusive conduct. Unfortunately, the
landlord would not accept the elder abuse restraining order as
sufficient proof for ending the woman's lease, because this
type of order is not included in Civil Code �Section] 1946.7.
Currently, the code lists only domestic violence restraining
orders, civil harassment restraining orders, and juvenile
restraining orders as acceptable documentation for ending the
lease. This led to unnecessary stress for the woman, who
needed to relocate for her mental wellbeing and had to retain
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an attorney to negotiate with the landlord to end the lease.
By extending housing protections to victims who have obtained
elder abuse restraining orders, SB 1403 would assist some of
the state's most vulnerable victims in resolving housing
matters. In many cases, these victims may not have a domestic
violence restraining order or other proof currently required
under the housing laws, because an elder abuse restraining
order provides more appropriate relief based on the abuse that
these victims are experiencing. SB 1403 also would ensure that
our housing laws consistently protect abuse victims of all
ages.
It should be noted that, as with victims of domestic violence,
sexual assault, or stalking, tenants who are victims of elder or
dependent adult abuse seeking to terminate their rental or lease
agreements early would be subject to certain requirements and
restrictions discussed below.
a. Tenant may notify landlord of status as victim of elder
or dependent adult physical abuse; documentation required
This bill would provide relief to a tenant who provides
written notice to the landlord that he or she or a household
member was a victim of elder or dependent adult physical
abuse. If the tenant has a valid temporary restraining order,
emergency protective order, protective order, elder or
dependent adult abuse order, or a written report by a law
enforcement agency or officer, the tenant may terminate the
rental agreement and quit the premises.
The notice to terminate the rental agreement must be given
within 180 days of the date a temporary restraining order,
emergency protective order, or elder or dependent abuse order
was issued, or within 180 days of the date that written
documentation was provided by the law enforcement agency.
b. Tenant to pay rent for the 30 days after notice to
terminate is given, then is released from rent obligations
without penalty
If the tenant gives the notice in writing, provides
documentation as required, and gives the notice of termination
of tenancy within the required 180 days, existing law would
require the tenant to pay rent only for the 30 days following
the date notice of termination to the landlord was given.
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After that, the tenant would be released from the obligation
to pay rent under the rental agreement or under Civil Code
Section 1946. Section 1946 renews a term of tenancy for the
same period implied by law if the landlord accepts rent from
the tenant, unless either party gives written notice at least
as long before the expiration of the term as the term of the
hiring itself. Section 1946 also allows for the parties to
terminate the tenancy at any given time by giving not less
than 30-days' notice before the expiration of the term that is
on a month-to-month basis.
c. If property is rented prior to end of 30-day period,
rent is prorated
Under Civil Code Section 1946.7(e), if during the 30-day
period after the notice of termination of tenancy was given,
the tenant quits the premises and the landlord then lets the
property to another party, the amount of rent due for the
premises shall be prorated, and existing law on security
deposits applies.
For example, if a tenant-victim gives notice on June 25 that
she is terminating her lease, the tenant would still be as
responsible as the abuser for the rent for the 30-day period
following the date the notice of termination of tenancy is
given to the landlord, but would not be responsible for any
rent afterwards, even though the lease or rental agreement is
for a longer period. The landlord would have to look to the
abuser-tenant for enforcement of the rest of the lease or
rental agreement.
d. Relief from rent obligation applies only to tenant or
household member with status and to his or her family
Existing law expressly states that the relief provided to
victims of domestic violence, sexual assault, or stalking
would be available only to such a tenant and his or her
household members, and other tenants who are parties to the
rental agreement would still have to fulfill their obligations
under that rental agreement. This bill would apply the same
limitations to tenants that are victims of elder or dependent
adult abuse.
As discussed above, existing law provides a balance between
protections for victims of domestic violence, sexual abuse, and
stalking, while maintaining protections for landlords. In
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support of extending these provisions to victims of elder and
dependent adult abuse, the California Partnership to End
Domestic Violence argues that "adding elder abuse orders
recognizes the vulnerability of elder victims. These
common-sense changes included in SB 1403 will increase the
ability for victims to access these protections and find
safety." As a matter of public policy, elder and dependent
adult abuse victims should be to able utilize tenant protections
provided under existing law for other abuse victims in order to
secure safer accommodations.
3. Clarifying protective orders in the list of authorized
documents
This bill would add protective order to the list of documents
that a tenant can provide to a landlord to substantiate domestic
violence, sexual assault, or stalking for early termination of a
lease or rental agreement. Under existing law, a protective
order includes restraining orders (temporary or permanent)
enjoining specific acts of abuse, excluding a person from a
dwelling, or enjoining other specified behavior. (Fam. Code
Sec. 6218.) Additionally, protective order includes elder or
dependent adult abuse orders. (Welf. & Inst. Code Sec.
15657.03(b)(3).)
As discussed above, current law provides that a tenant who
secures a temporary restraining order or emergency protective
order may terminate their tenancy early without penalties the
tenant would otherwise incur for early termination. However, a
permanent restraining order is not specifically included in the
list of documents a tenant may provide to a landlord for early
lease or rental agreement termination. Yet, a permanent
restraining order is a protective order, as are temporary
restraining orders, emergency protective orders, and elder and
dependent adult abuse orders. This bill would clarify that a
protective order (temporary or permanent) may be used to
substantiate the necessity for a tenant to terminate a lease or
rental agreement and, thus, would provide increased protection
for victims of domestic violence, sexual assault, stalking, and
elder or dependent adult abuse.
4. Urgency measure
The bill contains an urgency clause, making it effective
immediately upon passage and the Governor's signature. The
rationale provided for the urgency is that it is necessary for
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the immediate preservation of the public peace, health, or
safety to ensure improved protection against domestic violence
and elder abuse in California.
5. Author's amendment
Existing law prohibits a landlord from terminating tenancy based
upon domestic violence, sexual assault, or stalking. In the
event a landlord files an unlawful detainer (eviction) action
against a victim, the victim can assert affirmative defenses
based upon documented domestic violence, sexual assault, or
stalking. This bill would extend these affirmative defenses to
a tenant who is a victim of elder or dependent adult abuse.
Existing law, by January 1, 2012, requires the Judicial Council
of California to develop or revise a form that may be used by
the tenant to assert a responsive pleading setting forth an
affirmative defense to an unlawful detainer action brought by a
landlord against a tenant. Since this bill would authorize a
tenant who is the victim of elder or dependent adult abuse to
assert affirmative defenses against eviction proceedings, the
author offers an amendment to require the Judicial Council of
California to revise the responsive pleading form to incorporate
the provisions of this bill by January 1, 2014.
Author's amendment :
On page 5, at line 23, remove and replace "2012" with "2014"
Support : California Partnership to End Domestic Violence; Crime
Victims United California; National Housing Law Project
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 588 (V. Manuel P�rez, Ch. 76, Stats. 2011) See Background.
SB 782 (Yee, Ch. 626, Stats. 2010) See Background.
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AB 2052 (Lieu, Ch. 440, Stats. 2008) See Background.
Prior Vote : Not relevant.
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