BILL ANALYSIS �
SB 1403
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Date of Hearing: August 30, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 1403 (Yee) - As Amended: August 29, 2012
SENATE VOTE : 35-0
SUBJECT : tenancy termination: elder abuse
KEY ISSUE : Should an existing law that permits victims of
domestic violence, sexual assault, and stalking to terminate a
long-term lease in order to escape their abusers be extended to
victims of elder abuse?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This straight-forward and non-controversial bill extends to
victims of elder abuse an existing statute that permits victims
of domestic violence, sexual abuse, or stalking to terminate a
long-term tenancy in order to escape their abuser. Existing
Civil Code Section 1947.6 permits a tenant who has been a victim
of domestic violence, sexual abuse, or stalking to notify his or
her landlord of intent to terminate a tenancy, so long as the
notice is accompanied by a copy of a court order or police
report that documents the underlying abuse. Under existing law,
the tenant is still obligated to pay rent for the 30-day period
after notice but is otherwise released from any rent obligation
under the remainder of the lease. The purpose behind the law is
simple enough: a victim of domestic abuse must sometimes need to
move in order to escape an abuser, but this may not be possible
if the victim is locked into a long-term lease. This bill makes
two relatively minor changes to this existing, common sense law.
First, it adds elder and dependent abuse to the existing list
of relevant crimes for which a victim may terminate a tenancy.
Second, existing law permits a tenant to document the underlying
abuse by attaching to the termination notice a copy of either a
"temporary restraining order" or an "emergency protective
order." There are, however, three types of orders that domestic
abuse cases typically generate: (1) an emergency protective
order issued at the time of a domestic violence incident that is
valid for 5 to 7 days; (2) a temporary restraining order issued;
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and (3) a protective order that is issued after a court hearing.
For some reason, existing law only identifies the first two
types of common orders as acceptable documentation, even though
any of the three would be sufficient evidence of the underlying
abuse, which is the only purpose the documentation requirement
is meant to serve. This bill fills this gap. There is no known
opposition to this bill.
SUMMARY : Expands an existing law that permits tenants who are
victims of domestic violence, sexual assault, or stalking to
terminate a tenancy to include victims of elder abuse, and adds
a protective order to the list of documents that may be used by
the tenant as evidence of the underlying abuse. Specifically,
this bill :
1)Includes abuse of an elder or a dependent adult, as defined,
among the acts for which a tenant may terminate a tenancy, as
specified, so long as the tenant provides a copy of a
lawfully-issued temporary restraining order, emergency
protective order, or protective order, or a copy of a written
report by a police officer, as specified.
2)Adds "protective order" to the list of documents that a tenant
seeking to terminate a tenancy may use to document a claim of
domestic violence, sexual assault, stalking, or elder or
dependent adult abuse.
3)Changes the date, from January 1, 2012, to January 1,2014, by
which the Judicial Council must create a specified form that a
tenant may use to assert an affirmative defense to an unlawful
detainer.
EXISTING LAW :
1)Allows a tenant to notify the landlord that he or she or a
household member was a victim of domestic violence, sexual
assault, or stalking, and that the tenant intends to terminate
the tenancy. (Civil Code Section 1946.7(a).)
2)Requires that the above notice shall be in writing and
attached to one of the following documents:
a) A copy of a temporary restraining order or emergency
protective order that was lawfully issued and that protects
the tenant or household member from further domestic
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violence, sexual assault, or stalking.
b) A copy of a written report by a peace officer employed
by a state or local law enforcement agency stating that the
tenant or household member is a victim of domestic
violence, sexual assault, or stalking. (Civil Code Section
1946.7(b).)
1)Requires that the notice to terminate a tenancy, as described
above, must be given within 180 days of that date that an
order was issued or the peace officer report was made.
Specifies that if the notice is provided as required, the
tenant shall be liable for payment of rent for the 30-day
period following notice and shall thereafter be released from
any rent payment obligation under the rental agreement.
(Civil Code Section 1946.7 (c)-(e).)
2)Prohibits a landlord from terminating or failing to renew a
tenancy based upon an act or acts of domestic violence, sexual
assault, or stalking against a tenant or a tenant's household
member, except as provided. Requires the Judicial Council to
develop, by January 1, 2012, a form that may be used by a
party to assert an affirmative defense to an unlawful detainer
action. (Code of Civil Procedure Section 1161.3.)
COMMENTS : This bill expands an existing law that permits a
tenant to terminate a long-term lease if the tenant or a
tenant's household member has been a victim of domestic
violence, sexual abuse, or stalking. The purpose of the
existing law is straightforward: it allows a person who needs to
move in order to escape a violent or potentially violent
situation to terminate a long-term lease without being subject
to any penalty for breaching the lease. Specifically, existing
law permits the tenant who has been a victim of abuse to provide
the landlord with written notice of intent to terminate. The
tenant must attach to the notice a copy of a lawfully-issued
temporary restraining order or emergency protective order or a
police report in order to verify that tenant or household member
has been a victim domestic violence, sexual assault, or
stalking. Because existing law specifies that the tenant is
still responsible for rent for the 30-day period after notice is
provided, as a practical matter existing law only applies to
tenants who have entered into something longer than a
month-to-month lease. The existing statute was the product of
AB 2052 of 2008, which this Committee heard and unanimously
passed.
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This bill makes two changes to existing law. First, it adds
elder and dependent adult abuse to the list of crimes that
permit a tenant-victim to terminate a tenancy with proper notice
and documentation. Second, existing law requires a tenant to
attach to the termination notice either a "temporary restraining
order" or an "emergency protective order" in order to document
the abuse; this bill would additionally allow the tenant to
submit a copy of a "protective order" to meet this requirement.
Under existing law, there are generally three types of orders
that can be issued against an abuser in a domestic abuse case.
An "emergency protective order" (EPO) is issued at the request
of a police officer at the time of a domestic violence incident
and is valid for only five to seven days. A "temporary
restraining order" (TRO) is issued by a judge or judicial
officer, generally ex parte, and is valid for up to 25 days.
Finally, a "protective order," also known as a "stay away
order," is issued after notice and a hearing. The order lasts
for no more than five years, but can be permanently renewed. It
is not clear why the original legislation listed only two of
these three orders, but there is no reason why any of the orders
could not serve as reliable evidence of the underlying abuse,
which is the only reason for the requirement. Indeed, a
protective order, which is issued by a court after a hearing,
would seem to be more reliable evidence than a police report,
which simply proves that the victim filed a report, or a
temporary restraining order, which is issued ex parte. Yet,
under existing law a police report or temporary restraining
order is acceptable documentation but a protective order is not.
This bill merely adds to the list of acceptable documentation a
"protective order," the third type of order that is typically
issued in abuse cases.
Need for Bill : Victims of repeated elder abuse - no less than
victims of domestic violence, sexual assault, or stalking - may
sometimes find that they need to change their residence in order
to escape from an abuser. There does not appear to be any
logical reason for denying them the same protection. Moreover,
the National Housing Law Project (NHLP) - the sponsor of the
original legislation, AB 2052 - has encountered hybrid
situations that have created confusion and inequity. For
example, NHLP cites an example of an elderly woman who had been
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raped by her caretaker, as well as suffering other forms of
abuse by this caretaker. A judge in that case granted a TRO
based on the elder abuse. When the woman attempted to terminate
her lease in order to escape the caretaker, the landlord would
not accept the TRO as appropriate documentation because it was
not based on one of the statutory provisions (i.e. domestic
violence, sexual abuse, and assault) listed in Civil Code
Section 1947.1. This bill would simply add the elder abuse
statute to the existing list of crimes that justify early
termination of a lease on the part of the victim. In addition,
the provision adding "protective order" to the list of documents
that may be attached to the termination notice corrects an
apparent oversight in the original legislation, which only
listed two of the possible three types of order that can arise
in a domestic abuse case.
Changing Date of Required Judicial Council Form : In addition,
this bill makes a minor change to a related statute that
prohibits a landlord from terminating a tenancy based solely
upon an act or acts of domestic violence, sexual assault, or
stalking against a tenant or tenant's household member. That
statute, enacted by SB 782 in 2010, was generally intended to
address situations in which the domestic abuse creates a
nuisance that would otherwise be grounds for eviction. In such
a case, the victim of domestic abuse was essentially punished
for the actions of his or her abuser. Existing law, therefore,
protects the victim from eviction in those situations unless the
tenant persistently permits the abuser to visit the property or
if the landlord reasonably believes that the abuser poses a
genuine threat to other tenants. SB 782 also required the
Judicial Council to create a form, by January 1, 2012, that
would be used by a qualified tenant to assert, based on these
statutory protections, an affirmative defense to an unlawful
detainer action. This bill merely extends the date for the
Judicial Council to develop that form to January 1, 2014.
ARGUMENTS IN SUPPORT : According to the author, "this bill adds
victims of elder or dependent adult abuse to the list of persons
protected by the existing law . . . �because the] acts these
victims have suffered are consistent with the acts of domestic
violence, sexual assault, or stalking, which are �the only ones]
listed in the existing code."
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NHLP writes that this measure will "ensure that elder abuse
victims can use the housing protections that . . . currently
protect victims of domestic violence, sexual assault, and
stalking" from lease termination fees when they need to move in
order to escape their abuser or abusers. NHLP contends that
victims of elder abuse "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."
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United of California
National Housing Law Project
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334