BILL ANALYSIS �
AB 1513
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1513 (Fox) - As Amended: April 24, 2014
As Proposed to be Amended
SUBJECT : RESIDENTIAL PROPERTY: TRESPASS
KEY ISSUE : SHOULD PROPERTY OWNERS THAT TAKE AFFIRMATIVE STEPS
TO ENSURE THAT VACANT HOMES UNDER THEIR OWNERSHIP ARE REGULARLY
CHECKED AND FREE OF UNAUTHORIZED OCCUPANTS BE PROVIDED AN
ADDITIONAL TOOL TO ENFORCE CRIMINAL TRESPASS LAWS, PURSUANT TO A
PILOT PROJECT TO RUN UNTIL 2018 IN SELECT CITIES WHERE
"SQUATTING" IS A REPORTED PROBLEM?
SYNOPSIS
According to the author, unlawful detainer laws are not
specifically designed to provide law enforcement officials the
tools they need to assist owners of residential real property in
their efforts to remove or prevent occupancy by squatters on
vacant properties, and this bill seeks to provide property
owners with an additional tool to enforce criminal trespass laws
in cities where the so-called practice of "squatting" by
unauthorized occupants in residential property poses a growing
problem. This bill, sponsored by the California Association of
Realtors, outlines a proposed pilot project to allow property
owners to declare residential property to be vacant, register it
with local law enforcement, and gain greater certainty that any
subsequent trespasser upon the property will be subject to
arrest for trespassing, so long as regular inspection of the
property at three day intervals has confirmed it to be vacant
since the date of registration. As proposed to be amended, the
project initially includes the cities of Palmdale and Lancaster,
although more cities are expected to voluntarily ask to be
included as the bill progresses.
The bill is opposed by a number of tenant advocates who contend
that, contrary to the author's assertions, existing laws
governing trespass and unlawful detainer adequately deal with
the problems caused by "squatters" and that the author has made
no showing to indicate otherwise. These opponents believe that
any proposal that allows for the summary removal of someone
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deemed to be an unauthorized occupant or "squatter" by the
property owner, where there is no court involvement or
opportunity for the occupant to be heard, is a proposal that
necessarily lacks due process protection and is contrary to
existing law. This bill will be referred to Assembly
Appropriations should it be approved by this Committee.
SUMMARY : Establishes, until 2018, a pilot program to facilitate
enforcement of criminal trespassing laws against persons
occupying residential property that, pursuant to the program,
has been registered with and verified by local law enforcement
to be vacant. Specifically, this bill :
1)Authorizes the owner of vacant real property, or his agent, to
register vacant property with the local police agency using a
specified form.
2)Authorizes the owner or his agent to execute a "Declaration of
Ownership," worded as specified or in substantially similar
language, and file it with the district attorney of the
jurisdiction in which the property is located. Further
requires the owner to post the declaration on the unoccupied
residential property listed in the declaration if he also
files it with the district attorney.
3)Requires the registration form to be signed under penalty of
perjury and state that the property is vacant and is not
authorized to be occupied by any person.
4)Requires the registration to be accompanied by a statement
providing the name, address and telephone number at which the
owner can be contacted within a twenty-four hour period, and a
statement that either the police agency or a licensed private
security services company has been retained to comply with
specified inspection and reporting provisions, together with a
copy of any agreement or contract to perform such services.
5)Requires the owner or the owner's agent to register the vacant
property no later than three days after learning that the
property is vacant.
6)Requires the owner or owner's agent, immediately after
authorizing a person to occupy the vacant property, to issue a
written authorization to the person authorized to occupy the
property and notify the police agency where the property is
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registered and terminate the registration.
7)Requires a licensed private security services company or
police agency retained by the owner or owner's agent pursuant
to the pilot program to inspect the vacant property not less
than once every three days, and immediately notify the police
agency where the property is registered if any unauthorized
person is found on the property.
8)Requires the police agency where the property is registered to
respond to the property as soon as practicable after being
notified by the licensed security business that an
unauthorized person is found on the property. Further
requires the responding officer to do all of the following:
a) Verify that the property was inspected at least three
days prior and found to be vacant by the licensed security
business or police agency.
b) Ascertain the identity of any persons found on the
property.
c) Require the production of written authorization to be on
the property.
d) Advise any person who does not produce written
authorization that the person has forty-eight hours to
obtain written authorization from the owner of the
property, or the owner's agent, to be on the property, and
that the person will be subject to arrest for trespass if
the person is subsequently found on the property without
such authorization.
e) Verify with the owner or the owner's agent that the
property is vacant.
9)Provides that any person found on vacant property not less
than forty-eight hours after receiving the above warning
notification is guilty of trespass and, upon conviction, is
subject to imprisonment in a county jail not exceeding one
year, or by a fine not exceeding one thousand dollars
($1,000), or both.
10) Provides that the arrest of a person and removal of personal
property under this act is not a forcible entry under Section
1159 of the Code of Civil Procedure.
11)Provides that this act shall not be construed to limit a
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property owner for seeking other legal remedies to have a
person removed from the vacant property pursuant to any other
law.
12)Provides that the local city council or board of supervisors
shall establish fees for registering a vacant property with
the local police agency and for the conduct of inspections by
the police agency pursuant to this bill.
13)Finds and declares the following:
a) The practice of squatting on vacant property is a public
nuisance and is detrimental to the health, safety, and
economy of local communities and to the rights of real
property owners.
b) The intent of this section is to provide a means to
deter squatting at an early stage and to provide a second
chance for squatters to vacate the premises in lieu of
arrest.
c) This act is not to be an abridgment of other statutes
relating to trespass or civil eviction proceedings.
14)Limits application of these provisions to residential
property consisting of one to four units, located in the
cities of Palmdale and Lancaster, in Los Angeles County.
15)Establishes a sunset date of January 1, 2018 for these
provisions.
EXISTING LAW :
1)Provides that every person other than a public officer or
employee acting within the course and scope of his or her
employment in performance of a duty imposed by law, who enters
or remains in any noncommercial dwelling house, apartment, or
other residential place without consent of the owner, his or
her agent, or the person in lawful possession thereof, is
guilty of a misdemeanor. (Penal Code Section 602.5(a).)
2)Provides that every person using or procuring, encouraging or
assisting another to use, any force or violence in entering
upon or detaining any lands or other possessions of another,
except in the cases and in the manner allowed by law, is
guilty of a misdemeanor. (Penal Code Section 418.)
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3)Provides, generally, that whenever any person is arrested by a
peace officer for a misdemeanor, that person shall be cited
and released unless at least one of several criteria are met
justifying non-release. (Penal Code Section 853.6(i).)
4)Provides that a person is guilty of a forcible detainer who
either (1) by force, or by menaces and threats of violence,
unlawfully holds and keeps the possession of any real
property, whether the same was acquired peaceably or
otherwise; or (2) who, in the night-time, or during the
absence of the occupant of any lands, unlawfully enters upon
real property, and who, after demand made for the surrender
thereof, for the period of five days, refuses to surrender the
same to such former occupant. (Code of Civil Procedure
Section 1160.)
5)Provides the statutory requirements for unlawful detainer, a
summary proceeding the primary purpose of which is to
determine right to possession of real property. (Code of
Civil Procedure Section 1161 et seq.)
6)Provides that a former owner of a foreclosed property who
holds over and remains in the property after it has been sold
through foreclosure may be removed after a three-day notice to
quit has been served. (Code of Civil Procedure Section
1161a.)
7)Requires a tenant or subtenant in possession of a rental
housing unit under a month-to-month lease or periodic tenancy
at the time the property is sold in foreclosure to be given 90
days' written notice to quit before the tenant or subtenant
may be removed from the property as prescribed. (Code of
Civil Procedure Section 1161b, subd. (a).)
8)Provides that the purchaser or successor in interest shall
bear the burden of proof in establishing that tenants or
subtenants holding possession of a rental housing unit under a
fixed-term residential lease entered into before transfer of
title at the foreclosure sale do not have the right to
possession until the end of the lease term. (Code of Civil
Procedure Section 1161b, subd. (b) and (c).)
9)Provides that, in an action for unlawful detainer resulting
from a foreclosure sale of a rental housing unit, a tenant may
file a prejudgment claim of right of possession at any time
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before judgment or to object to enforcement of a judgment for
possession whether or not the tenant was served with the claim
of right to possession. (Code of Civil Procedure
415.46(e)(2).)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill, sponsored by the California Association of
Realtors, seeks to provide property owners with an additional
tool to enforce criminal trespass laws in cities where the
so-called practice of "squatting" by unauthorized occupants in
residential property poses a problem to the community at large.
Need for the bill . According to the author:
AB 1513 provides local law enforcement officials the
authority to require unlawfully occupied residential
properties to be vacated. There is currently no state law
that provides local government officials with specific
tools they need to combat unlawful occupancy of
residences by squatters. There is a rise in the number of
properties that are unlawfully occupied by such
individuals. The practice is becoming so pervasive that
there are now websites on the internet that are providing
"how to" guidelines for squatting on residential
properties.
Unlawful Detainer laws are not specifically designed to
provide law enforcement officials the tools they need to
assist owners of residential real property in their
efforts to remove, or prevent occupancy by squatters on
vacant properties. It is clear that under California law
it can take a minimum of 30-60 days to evict a
sophisticated squatter. AB 1513 will provide a definitive
remedy for owners of residences in California that have
been taken over by squatters.
Description of the proposed pilot program under this bill . The
bill outlines a pilot project to allow property owners to
declare property to be vacant, register it with local law
enforcement, and gain greater certainty that any subsequent
trespasser upon the property will be subject to arrest for
trespassing, so long as regular inspection of the property at
three day intervals has confirmed it to be vacant since the date
of registration.
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According to the intent language of the bill, the program is
intended to provide a means to deter squatting at an early stage
and to provide a second chance for squatters to vacate the
premises in lieu of arrest, and is not intended to be an
abridgment of other statutes relating to trespass or civil
eviction proceedings. It is believed that the threat of arrest
for trespassing on a property registered under this program (and
so noticed on the property itself) will serve as a deterrent to
those persons who the author and sponsor believe to be
sophisticated squatters targeting vacant properties in many
California cities.
The property owner registering the property under this program
must provide a phone number he can be reached at within a
24-hour period, which is intended to enable law enforcement to
quickly contact the owner should unauthorized occupants ever be
discovered on the property during one of the regular inspections
required under the program. In addition, the owner must retain
either law enforcement or a private security service to
regularly inspect the vacant property, and provide a copy of the
contract or agreement to perform those services at the time of
registration. The security company or law enforcement agent
must then inspect the vacant property at least every three days
to ensure it is vacant.
According to proponents who helped draft these provisions, this
key requirement is intended to ensure that the properties
registered with this program truly are vacant properties from
the first day of registration, and are not occupied by holdover
tenants or any other persons with legitimate claim to possess
the property. It is thought that the regular inspection of the
property at least once every three days will reveal quickly
whether the property is a foreclosure property with a holdover
tenant, or a vacant property as declared to be by the owner
under penalty of perjury. If the property is established to be
vacant as a condition of registration, then subsequent discovery
of an occupant on the property would indicate that the person
indeed fits the description of a "squatter", and is not a
holdover tenant who had been living openly in the property,
never having any idea that the owner had sworn the property to
be vacant despite the occupant's presence.
Under the program, law enforcement is required to respond soon
after being notified that an unauthorized person has been found
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on the property. As noted before, the stated intent of the bill
is to deter squatting at an early stage, and not to result in as
many arrests as possible. To that end, the bill provides that
law enforcement responding to a first call shall not arrest the
person for trespass, but instead advise him or her that written
authorization from the owner must be acquired within 48 hours,
or the person is subject to arrest upon the officer's next
inspection of the property. According to the sponsor, this
simple allowance provides a second chance for any unauthorized
occupant to vacate the premises in lieu of arrest, and
demonstrates the author's commitment to avoid arrest of people
who might otherwise be persuaded to move along after a single
visit from law enforcement. For those hopefully rare few who
are ever arrested and convicted of trespass under this bill, the
criminal penalty is imprisonment in the county jail for up to
one year and a fine of up to $1000, or both.
Author's proposed amendments. The author proposes amendments to
the bill that seek to address some unresolved workability
problems with the proposed pilot program, and that also signals
the author's willingness to work with opponents and other
stakeholders to try to identify solutions that represent a
balance of interests, should the bill continue to move forward.
As proposed to be amended, the bill resolves a discrepancy
between Sections 2 & 3 of the bill and clarifies that the pilot
program is intended to apply to residential property of one to
four units. In addition, proposed amendments establish the
cities of Palmdale and Lancaster as the first cities to
participate in the pilot project, and the author and sponsor
anticipate that several more cities will voluntarily seek to be
included as the bill moves forward, given the reported
prevalence of squatting in certain areas of California where
vacant homes are common as a result of the recent foreclosure
crisis.
ARGUMENTS IN SUPPORT : The bill is supported by property owners,
realtors, and the California Police Chiefs Association, who
write in support of this bill:
Currently in California it can take 30-60 days-sometimes
even longer-to evict a squatter. This is because
unlawful detainer procedures are geared towards
situations in which a tenant is evicted for failure to
pay rent or for an alleged violation of a rental
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agreement. In the context of these cases, the 30 to 60
day timeframe is a reasonable one. There are currently
no statutes, however, to assist with removing squatters
from vacant properties. These situations often involve
potential public safety issues, and most assuredly
undermine the quality of life in the adjacent
neighborhood. (This bill) will rectify that situation
and provide the needed tools to respond to what has been
a steadily increasing problem.
ARGUMENTS IN OPPOSITION : The bill is opposed by a number of
tenant advocate groups, who contend that the bill compromises
established due process protections for persons occupying
property who may be trespassers but who just as easily may be
legitimately entitled to possession of the premises. Their
numerous concerns are nicely summarized in a letter of
opposition from Tenants Together, stating:
This bill seeks to make it easier for property owners to
summarily remove alleged "unauthorized occupants." The
bill would substantially change landlord-tenant law,
bypassing the most basic due process requirement of an
opportunity to be heard in court. Proponents have made no
showing that existing laws governing trespass and
eviction are insufficient to sort out occupancy by
unauthorized persons.
Tenants Together operates a renters' rights hotline
through which we have counseled over 8,000 tenant
households since 2009. We regularly receive calls from
legitimate tenants being falsely accused of being
unauthorized occupants. Whether because of ignorance or
bad faith, many owners, particularly after foreclosure,
treat tenants as if they are trespassers despite the fact
that rental agreements run with the land and verbal
rental agreements are fully enforceable and legitimate in
California. These new owners threaten to call, and in
some cases call, the police or sheriff to have tenants
arrested or otherwise removed as trespassers. Giving
these owners an additional tool for summary removal would
be extremely harmful.
For years, post-foreclosure owners blatantly violated
tenants' rights by improperly treating tenants as
"unknown occupants," utilizing a loophole in state law
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that was recently addressed by the tenant protections in
the Homeowner Bill of Rights (HBOR). HBOR allows any
tenant in the property unnamed in an unlawful detainer
action to file a claim of right to possession at any time
to get a hearing to determine whether the tenant can
become a party to the eviction action. CCP 415.46(e)(2).
By allowing owners to circumvent the entire court
eviction process when the right to occupy is disputed,
the current proposal would undermine the very protections
the legislature just adopted in HBOR.
The bill also improperly shifts the burden of proof of
the tenancy onto tenants, contrary to the trend in the
law in recent years. Again, responding to widespread
false claims that tenancies were not entitled to
protection, the legislature passed a provision in HBOR to
put the burden of proof on owners. See CCP sec. 1161b(c)
("The purchaser or successor in interest shall bear the
burden of proof in establishing that a fixed-term
residential lease is not entitled to protection under
subdivision (b).") In contrast, this bill would allow a
mere declaration by the owner to result in removal by law
enforcement.
Finally, it is worth considering why the situation of
unauthorized occupancy exists in the first place. In many
cases, the unauthorized occupancy is made possible by the
failure of post-foreclosure owners to exercise due
diligence to maintain and secure the property after
acquisition. Some companies have bought up thousands of
homes and make no meaningful attempt to secure them,
leaving them exposed to vandalism and trespassing. The
legislature responded to this problem with SB 1137 in
2008 to empower local government agencies to file
enforcement actions against those who allow vacant
property to become blighted, yet few jurisdictions have
taken action under the law. Rather than jeopardize the
rights of legitimate tenants with the proposed AB 1513,
the focus should be on forcing property owners to
exercise due diligence to secure properties after
acquisition.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Association of Realtors (sponsor)
California Mortgage Association
California Police Chiefs Association
Apartment Association of Greater Los Angeles
Santa Barbara Rental Property Association
Southwest California Legislative Council
Opposition
Berkeley Tenants Union
Coalition on Homelessness in San Francisco
Tenants Together
Western Center on Law and Poverty
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334