BILL ANALYSIS �
SB 1403
Page 1
( Without Reference to File )
SENATE THIRD READING
SB 1403 (Yee)
As Amended August 29, 2012
Majority vote
SENATE VOTE :35-0
JUDICIARY 8-0
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Dickinson, Feuer, | | |
| |Gorell, Huber, Monning | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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 :
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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.
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
violence, sexual assault, or stalking; or,
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.
1)Requires that the notice to terminate a tenancy, as described
above, must be given within 180 days of the 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.
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.
FISCAL EFFECT : Unknown
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
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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 of 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.
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.
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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 - has encountered hybrid situations that have
created confusion and inequity. For example, NHLP cites an
example of an elderly woman who had been 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.
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 (Yee), Chapter 626, Statutes of 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, which would be used by a
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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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0005865