sr-032712-13bMarch 27, 2012
CITY CLERK'S OFFICE - MEMORANDUM
To: City Council
From: Councilmember McKeown
Date: March 27, 2012
13 -13: Request of Councilmember McKeown that the Council support or oppose
various housing bills currently in the California Legislature that will affect
affordable housing and rent control policy in Santa Monica, and that our
support or opposition on the following bills be conveyed to members of the
legislature and to the Governor as appropriate:
SUPPORT
SIB 1055 (Lieu) - rent payments
AB 1865 (Alejo) - notification of legal options
AB 1547 (Eng) - foreclosures
SB 708 (Corbett) - foreclosures
OPPOSE
AB 317 (Calderon) - mobile home rent control change
AB 2044 (Wagner) - unlawful detainer service
`K0 -3
March 27, 2012
March 21, 2012
To: Rod Gould, City Manager
Kate Vernez, Deputy City Manager for Special Projects
From: Joshua W. Shaw, Partner
Re: Proposed City Action on Significant Housing and Tenants' Rights Legislation
The purpose of this report is to recommend the City Council take certain advocacy
positions on the most relevant new state legislation in the fields of housing and tenants'
rights.
We recently participated in a meeting convened by the City Manager's Office, including
with the City's Housing and Economic Development staff, the Rent Control Board's staff
and lobbyist, and two lobbyists representing the Western Center on Law & Poverty; we
gathered for the purposes of reviewing a range of bills introduced or recently amended
this year — all related to housing and renters' rights.
We examined each bill for potential impact — whether positive or negative — on the City
of Santa Monica and its efforts to better serve our citizens, provide affordable housing,
and protect renters. Based on the City's longstanding adopted policies in these fields,
and after taking input from all the participants in that meeting and further consulting
with the City Manager's Office, we recommend the Council take the positions shown for
each of the bills listed on the following pages.
Once the Council acts, we will then follow -up with the City Manager's Office and
coordinate the preparation of officials letters indicating the City's position, delivery of
such to the appropriate authors, committees and other legislators, and begin our
advocacy (i.e. meeting with legislators and staff, testifying in committee on the bills,
etc.).
Tel: 916.446.4656 Fax: 916.446.4318
1415 L Street, Suite 1000
Sacramento, CA 95814
City of Santa Monica
Housing and Renters' Rights Legislation Recommendations
Page Two of Three
Proposed "Support" Positions
SB 1055 (Lieu) — Landlord and tenant: payments.
Staff/ lobbyist comment: The bill would prohibit a landlord or a landlord's agent from
requiring cash as the exclusive payment of rent or deposit of security. The bill would
require any landlord or landlord's agent that offers the option of payment of rent or
deposit of security online to also accept payment of rent or deposit of security by check or
money order for any lease or rental agreement that is first effective on or after January 1,
2013. The bill would provide that a waiver of these provisions is contrary to public policy,
and is void and unenforceable.
We are working on clarifying the bill's applicability to existing tenancies. The bill is
sponsored by the Western Center on Law & Poverty. Staff recommends taking a Support
position.
SB 708 (Corbett) and AB 1547 (Eng) Residential mortgage loans: foreclosure procedures.
Staff/ lobbyist comment: The state's law requiring 60 days' notice is set to expire at the
end of 2012. While the primary intent of these bills addresses an issue not widely
applicable in Santa Monica — as our just cause for eviction law does not recognize
foreclosure as a just cause, notice requirements are not particularly relevant for most
Santa Monica renters — to the extent a tenant was renting in a single - family home, there
could be an application for that tenant, of either bill, were one to become law.
SB 708 (Corbett) would extend the sunset to 2018; AB 1547 (Eng) repeals the sunset date
and makes a 60 -day notice requirement permanent. Thus, staff recommends taking a
Support position on each bill.
AB 1865 (Alejo) — Residential tenancies: eviction: notices.
Staff/ lobbyist comment: This bill would require that the notice in an unlawful detainer
proceeding, which must be mailed by the clerk of the court in jurisdiction, must also
contain, as an alternative to the county bar association, the name and telephone number
of any nonprofit bar association within the county that is duly authorized by the State Bar
as a lawyer referral provider.
This would expand delivery of the information about available legal resources for tenants
in such a situation. Thus, staff recommends taking a Support position.
City of Santa Monica
Housing and Renters' Rights Legislation Recommendations
Page Three of Three
Proposed "Oppose" Positions
AB 317 (Calderon) — Mobilehomes.
Staff/ lobbyist comment: This bill would revise the conditions under which a tenancy is
exempt from a local rent control ordinance, rule, regulation, or initiative, to, among other
things, make the exemptions applicable when the mobilehome space is not the sole
residence of the mobilehome owner. The bill would specify the evidence upon which
management of a mobilehome park may rely to determine whether a residence is the
mobilehome owner's sole residence, including, among others factors, evidence that a
mobilehome owner rents, leases, occupies, or has a present ownership interest in another
place of residence. The bill would require management to provide the homeowner with
90 days' written notice of any proposed rent modifications based on lack of sole residency
at the mobilehome park, and specify related procedures, including voluntary arbitration if
the mobilehome owner disputes management's determination, as specified.
From Santa Monica's perspective, the bill would decontrol (apparently permanently) any
mobilehome park space if the mobilehome is not the "sole' residence of the tenant. The
bill also sets an inappropriate statewide precedent for situations which the City years ago
created local solutions (e.g. an appeals process exists in Santa Monica when owners and
tenants dispute sole residency). We recommend taking an Oppose position.
AB 2044 (Wagner) —Service of process: unlawful detainer.
Staff/ lobbyist comment: This bill would expand the procedure for service of process in
actions for unlawful detainer with respect to occupants and provide that service of a
prejudgment claim of right to possession may be served on any person who is over 18
years of age and apparently left in charge of the premises. The bill would also provide that
service may be affected by a person who is at least 18 years old and not a party to the
action.
Because such an expansion is unnecessary, and improper service continues to be a
problem for tenants, we recommend taking an Oppose position.
SENATE BILL No. 1055
Introduced by Senator Lieu
February 9, 2012
An act to add Section 1947.2 to the Civil Code, relating to landlord
and tenant.
LEGISLATIVE COUNSEL'S DIGEST
SB 1055, as introduced, Lieu. Landlord and tenant: payments.
Existing law regulates the relationship between landlord and tenant
and the terms and conditions of tenancies. Existing law requires a tenant
to pay rent as it successively becomes due.
This bill would prohibit a landlord or a landlord's agent from requiring
cash as the exclusive payment of rent or deposit of security. The bill
would require any landlord or landlord's agent that offers the option of
payment of rent or deposit of security online to also accept payment of
rent or deposit of security by check or money order for any lease or
rental agreement that is first effective on or after January 1, 2013. The
bill would provide that a waiver of these provisions is contrary to public
policy, and is void and unenforceable.
Vote: majority. Appropriation: no. Fiscal committee: no.
State - mandated local program: no.
The people of the State of California do enact as, follows:
SECTION 1. Section 1947.2 is added to the Civil Code, to
read:
1947.2. (a) A landlord or a landlord's agent may not demand
or require online Internet payments as the exclusive form of
payment of rent or deposit of security in any lease or rental
agreement that is first effective on or after January 1, 2013. Any
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1 landlord or landlord's agent that offers the option of payment of
2 rent or deposit of security online shall also accept payment of rent
3 or deposit of security by check or money order.
4 (b) Subdivision (a) does not enlarge or diminish a landlord's or
5 landlord's agent's legal right to terminate a tenancy.
6 (c) A waiver of the provisions of this section is contrary to public
7 policy, and is void and unenforceable.
r
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CALIPORNIA LEGISLATURE - 2011 -12 REGULAR SESSION
ASSEMBLY BILL No. 1865
Introduced by Assembly Member Alejo
February 22, 2012
An act to amend Section 1161.2 of the Code of Civil Procedure,
relating to eviction.
LEGISLATIVE COUNSEL'S DIGEST
AB 1865, as introduced, Alejo. Residential tenancies: eviction:
notices.
Existing law governs unlawful detainer proceedings. Existing law
requires the cleric to mail a specified notice upon the filing of an
unlawful detainer action to each defendant named in the action and
requires the notice to contain the name and telephone number of the
county bar association as well as other legal services organizations that
provide service to low- income persons.
This bill would require that the notice described above contain, as an
alternative to the county bar association, the name and telephone number
of any nonprofit bar association within the county that is duly authorized
by the State Bar as a lawyer referral provider.
Vote: majority. Appropriation: no. Fiscal connnittee: yes.
State - mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 1161.2 of the Code of Civil Procedure
2 is amended to read:
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1161.2. (a) The clerk may allow access to limited civil case
records filed under this chapter, including the court file, index,
and register of actions, only as follows:
(1) To a party to the action, including a party's attorney.
(2) To any person who provides the clerk with the names of at
least one plaintiff and one defendant and the address of the
premises, including the apartment or unit number, if any.
(3) To a resident of the premises who provides the clerk with
the name of one of the parties or the case number and shows proof
of residency.
(4) To any person by order of the court, which may be granted
ex parte, on a showing of good cause.
(5) Except as provided in paragraph (6), to any other person 60
days after the complaint has been filed, unless a defendant prevails
in the action within 60 days of the filing of the complaint, in which
case the clerk may not allow access to any court records in the
action, except as provided in paragraphs (1) to (4), inclusive.
(6) In the case of a complaint involving residential property
based on Section 1161 a as indicated in the caption of the complaint,
as required in subdivision (c) of Section 1166, to any other person,
if 60 days have elapsed since the complaint was filed with the
court, and, as of that date, judgment against all defendants has
been entered for the plaintiff, after a trial. If judgment is not entered
under the conditions described in this paragraph, the cleric shall
not allow access to any court records in the action, except as
provided in paragraphs (1) to (4), inclusive.
(b) For purposes of this section, "good cause" includes, but is
not limited to, the gathering of newsworthy facts by a person
described in Section 1070 of the Evidence Code. It is the intent of
the Legislature that a simple procedure be established to request
the ex parte order described in subdivision (a).
(c) Upon the filing of any case so restricted, the court clerk shall
mail notice to each defendant named in the action. The notice shall
be mailed to the address provided in the complaint. The notice
shall contain a statement that an unlawful detainer complaint
(eviction action) has been filed naming that party as a defendant,
and that access to the court file will be delayed for 60 days except
to a party, an attorney for one of the parties, or any other person
who (1) provides to the clerk the names of at least one plaintiff
and one defendant in the action and provides to the cleric the
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address, including any applicable apartment, unit, or space number,
of the subject premises, or (2) provides to the clerk the name of
one of the parties in the action or the case number and can establish
through proper identification that he or she lives at the subject
premises. The notice shall also contain a statement that access to
the court index, register of actions, or other records is not permitted
until 60 days after the complaint is filed, except pursuant to an
order upon a showing of good cause therefor. The notice shall
contain on its face the name and telephone number of the county
bar association or any nonprofit bar association within the
county that is duly authorized by the State Bar as a lawyer referral
provider. The notice shall also contain on its face the name and
telephone number of an office or offices funded by the federal
Legal Services Corporation or qualified legal services projects that
receive fiords distributed pursuant to Section 6216 of the Business
and Professions Code; that provide legal services to low- income
persons in the county in which the action is filed. The notice shall
state that these numbers may be called for legal advice regarding
the case. The notice shall be issued between 24 and 48 hours of
the filing of the complaint, excluding weekends and holidays. One
copy of the notice shall be addressed to "all occupants" and mailed
separately to the subject premises. The notice shall not constitute
service of the surmnons and complaint.
(d) Notwithstanding any other provision of law, the court shall
charge an additional fee of fifteen dollars ($15) for filing a first
appearance by the plaintiff. This fee shall be added to the uniform
filing fee for actions filed under this chapter.
(e) This section does not apply to a case that seeks to terminate
a mobilehome park tenancy if the statement of the character of the
proceeding in the caption of the complaint clearly indicates that
the complaint seeks termination of a mobilehome park tenancy.
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CALIFORNIA LEGISLATURE - 2011 -12 REGULAR SESSION
ASSEMBLY BILL No. 1547
Introduced by Assembly Member Eng
January 25, 2012
An act to amend Sections 2923.5, 2923.6, 2924.8, and 2929.3 of the
Civil Code, and to amend Section 1161b of the Code of Civil Procedure,
relating to mortgages.
LEGISLATIVE COUNSEL'S DIGEST
AB 1547, as introduced, Eng. Residential mortgage loans: foreclosure
procedures.
(1) Existing law, until January 1, 2013, requires a 30 -day notice, as
specified, to be given to the borrower of certain home mortgages, as
specified, before a mortgagee, trustee, beneficiary, or authorized agent
may file a notice of default. Existing law requires the notice of default
to include certain information, as specified. Existing law also requires
contact with the borrower, as defined, in order to assess the borrower's
financial situation and explore options for the borrower to avoid
foreclosure. Existing law authorizes a borrower to designate a
HUD- certified housing counseling agency, attorney, or other advisor
to discuss with the mortgagee, beneficiary, or authorized agent, on the
borrower's behalf, options for the borrower to avoid foreclosure. Under
existing law, it is a crime to tear down the notice of sale posted on a
property within 72 hours of posting.
Existing law, until January 1, 2013, requires a legal owner to maintain
vacant residential property acquired through foreclosure. Existing law
also authorizes a governmental entity to impose civil fines and penalties
for failure to maintain that property of up to $1,000 per day for a
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violation, after notice and an opportunity to correct the violation is
given.
This bill would delete the repeal clause for these provisions and thus
extend the operation of these provisions indefinitely. Because this bill
would change the definition of a crime, it would impose a
state - mandated local program.
(2) Existing law, until January 1, 2013, requires a tenant or subtenant
in possession of a rental housing unit at the time the property is sold in
foreclosure to be given 60 days' written notice to quit the property
before being removed.
This bill would delete the repeal clause for this provision and thus
extend the operation of this provision indefinitely.
(3) The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal cormnittee: yes.
State - mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 2923.5 of the Civil Code is amended to
2 read:
3 2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized
4 agent may not file a notice of default pursuant to Section 2924
5 until 30 days after initial contact is made as required by paragraph
6 (2) or 30 days after satisfying the due diligence requirements as
7 described in subdivision (g).
8 (2) A mortgagee, beneficiary, or authorized agent shall contact
9 the borrower in person or by telephone in order to assess the
10 borrower's financial situation and explore options for the borrower
11 to avoid foreclosure. During the initial contact, the mortgagee,
12 beneficiary, or authorized agent shall advise the borrower that he
13 or she has the right to request a subsequent meeting and, if
14 requested, the mortgagee, beneficiary, or authorized agent shall
15 schedule the meeting to occur within 14 days. The assessment of
16 the borrower's financial situation and discussion of options may
17 occur during the first contact, or at the subsequent meeting
18 scheduled for that purpose. In either case, the borrower shall be
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provided the toll -free telephone number made available by the
United States Department of Housing and Urban Development
(HUD) to find a HUD- certified housing counseling agency. Any
meeting may occur telephonically.
(b) A notice of default filed pursuant to Section 2924 shall
include a declaration that the mortgagee, beneficiary, or authorized
agent has contacted the borrower, has tried with due diligence to
contact the borrower as required by this section, or that no contact
was required pursuant to subdivision (h).
(c) If a mortgagee, trustee, beneficiary, or authorized agent had
already filed the notice of default prior to the enactment of this
section and did not subsequently file a notice of rescission, then
the mortgagee, trustee, beneficiary, or authorized agent shall, as
part of the notice of sale filed pursuant to Section 2924f, include
a declaration that either:
(1) States that the borrower was contacted to assess the
borrower's financial situation and to explore options for the
borrower to avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the
event no contact was made.
(d) A mortgagee's, beneficiary's, or authorized agent's loss
mitigation personnel may participate by telephone during any
contact required by this section.
(e) For purposes of this section, a "borrower" shall include a
mortgagor or trustor.
(f) A borrower may designate, with consent given in writing, a
HUD - certified housing counseling agency, attorney, or other
advisor to discuss with the mortgagee, beneficiary, or authorized
agent, on the borrower's behalf, the borrowers financial situation
and options for the borrower to avoid foreclosure. That contact
made at the direction of the borrower shall satisfy the contact
requirements of paragraph (2) of subdivision (a). Any loan
modification or workout plan offered at the meeting by the
mortgagee, beneficiary, or authorized agent is subject to approval
by the borrower.
(g) A notice of default may be filed pursuant to Section 2924
when a mortgagee, beneficiary, or authorized agent has not
contacted a borrower as required by paragraph (2) of subdivision
(a) provided that the failure to contact the borrower occurred
despite the due diligence of the mortgagee, beneficiary, or
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1 authorized agent. For purposes of this section, "due diligence"
2 shall require and mean all of the following:
3 (1) A mortgagee, beneficiary, or authorized agent shall first
4 attempt to contact a borrower by sending a first -class letter that
5 includes the toll -free telephone number made available by HUD
6 to find a HUD - certified housing counseling agency.
7 (2) (A) After the letter has been sent, the mortgagee,
8 beneficiary, or authorized agent shall attempt to contact the
9 borrower by telephone at least three times at different hours and
10 on different days. Telephone calls shall be made to the primary
11 telephone number on file.
12 (B) A mortgagee, beneficiary, or authorized agent may attempt
13 to contact a borrower using an automated system to dial borrowers,
14 provided that, if the telephone call is answered, the call is
15 connected to a live representative of the mortgagee, beneficiary,
16 or authorized agent.
17 (C) A mortgagee, beneficiary, or authorized agent satisfies the
18 telephone contact requirements of this paragraph if it determines,
19 after attempting contact pursuant to this paragraph, that the
20 borrower's primary telephone number and secondary telephone
21 number or numbers on file, if any, have been disconnected.
22 (3) If the borrower does not respond within two weeks after the
23 telephone call requirements of paragraph (2) have been satisfied,
24 the mortgagee, beneficiary, or authorized agent shall then send a
25 certified letter, with return receipt requested.
26 (4) The mortgagee, beneficiary, or authorized agent shall provide
27 a means for the borrower to contact it in a timely manner, including
28 a toll -free telephone number that will provide access to a live
29 representative during business hours.
30 (5) The mortgagee, beneficiary, or authorized agent has posted
31 a prominent link on the homepage of its Internet Web site, if any,
32 to the following information:
33 (A) Options that may be available to borrowers who are unable
34 to afford their mortgage payments and who wish to avoid
35 foreclosure, and instructions to borrowers advising them on steps
36 to take to explore those options.
37 (B) A list of financial documents borrowers should collect and
38 be prepared to present to the mortgagee, beneficiary, or authorized
39 agent when discussing options for avoiding foreclosure.
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(C) A toll -free telephone number for borrowers who wish to
discuss options for avoiding foreclosure with their mortgagee,
beneficiary, or authorized agent.
(D) The toll -free telephone number made available by HUD to
find a HUD - certified housing counseling agency.
(h) Subdivisions (a), (c), and (g) shall not apply if any of the
following occurs:
(1) The borrower has surrendered the property as evidenced by
either a letter confirming the surrender or delivery of the keys to
the property to the mortgagee, trustee, beneficiary, or authorized
agent.
(2) The borrower has contracted with an organization, person,
or entity whose primary business is advising people who have
decided to leave their homes on how to extend the foreclosure
process and avoid their contractual obligations to mortgagees or
beneficiaries.
(3) A case has been filed by the borrower under Chapter 7, 11,
12, or 13 of Title 11 of the United States Code and the bankruptcy
court has not entered an order closing or dismissing the bankruptcy
case, or granting relief from a stay of foreclosure.
(i) This section shall apply only to mortgages or deeds of trust
recorded from January 1, 2003, to December 31, 2007, inclusive,
that are secured by owner - occupied residential real property
containing no more than four dwelling units. For purposes of this
subdivision, "owner- occupied" means that the residence is the
principal residence of the borrower as indicated to the lender in
loan documents.
0) This section shall remain in eff�et enlytmtil Jwmary 1, 2013,
is enacted before january 1, 2913, deletes or ex+etids that d
SEC. 2. Section 2923.6 of the Civil Code is amended to read:
2923.6. (a) The Legislature finds and declares that any duty
servicers may have to maximize net present value under their
pooling and servicing agreements is owed to all parties in a loan
pool, or to all investors under a pooling and servicing agreement,
not to any particular party in the loan pool or investor under a
polling and servicing agreement, and that a servicer acts in the
best interests of all parties to the loan pool or investors in the
pooling and servicing agreement if it agrees to or implements a
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loan modification or workout plan for which both of the following
apply:
(1) The loan is in payment default, or payment default is
reasonably foreseeable.
(2) Anticipated recovery under the loan modification or workout
plan exceeds the anticipated recovery through foreclosure on a net
present value basis.
(b) It is the intent of the Legislature that the mortgagee,
beneficiary, or authorized agent offer the borrower a loan
modification or workout plan if such a modification or plan is
consistent with its contractual or other authority.
(e) This seetion shall remain in effect only until January!, 2041-3;
is enacted before jwmafy 1, -2013, deletes of extends that date-.
SEC. 3. Section 2924.8 of the Civil Code is amended to read:
2924.8. (a) Upon posting a notice of sale pursuant to Section
2924f, a trustee or authorized agent shall also post the following
notice, in the manner required for posting the notice of sale on the
property to be sold, and a mortgagee, trustee, beneficiary, or
authorized agent, concurrently with the mailing of the notice of
sale pursuant to Section 2924b, shall send by first -class mail in an
envelope addressed to the "Resident of property subject to
foreclosure sale" the following notice in English and the languages
described in Section 1632: "Foreclosure process has begun on this
property, which may affect your right to continue to live in this
property. Twenty days or more after the date of this notice, this
property may be sold at foreclosure. If you are renting this property,
the new property owner may either give you a new lease or rental
agreement or provide you with a 60 -day eviction notice. However,
other laws may prohibit an eviction in this circumstance or provide
you with a longer notice before eviction. You may wish to contact
a lawyer or your local legal aid or housing counseling agency to
discuss any rights you may have."
(b) It shall be an infraction to tear down the notice described in
subdivision (a) within 72 hours of posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) A state government entity shall make available translations
of the notice described in subdivision (a) which may be used by a
mortgagee, trustee, beneficiary, or authorized agent to satisfy the
requirements of this section.
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1 (d) This section shall only apply to loans secured by residential
2 real property, and if the billing address for the mortgage note is
3 different than the property address.
4 (e) This seetiati sha4l remain in effect only until january 1, 2041-3-,
5 and as ofthat dafe is repealed, unless a later enacted stattiteAIMf
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is enacted before january 1, 2013, deletes or ex4etids that dat:e-
7 SEC. 4. Section 2929.3 of the Civil Code is amended to read:
8 2929.3. (a) (1) A legal owner shall maintain vacant residential
9 property purchased by that owner at a foreclosure sale, or acquired
10 by that owner through foreclosure under a mortgage or deed of
I1 trust. A governmental entity may impose a civil fine of up to one
12 thousand dollars ($1,000) per day for a violation. If the
13 governmental entity chooses to impose a fine pursuant to this
14 section, it shall give notice of the alleged violation, including a
15 description of the conditions that gave rise to the allegation, and
16 notice of the entity's intent to assess a civil fine if action to correct
17 the violation is not commenced within a period of not less than 14
18 days and completed within a period of not less than 30 days. The
19 notice shall be mailed to the address provided in the deed or other
20 instrument as specified in subdivision (a) of Section 27321.5 of
21 the Government Code, or, if none, to the return address provided
22 on the deed or other instrument.
23 (2) The govermmental entity shall provide a period of not less
24 than 30 days for the legal owner to remedy the violation prior to
25 imposing a civil fine and shall allow for a hearing and opportunity
26 to contest any fine imposed. In determining the amount of the fine,
27 the governmental entity shall take into consideration any timely
28 and good faith efforts by the legal owner to remedy the violation.
29 The maximum civil fine authorized by this section is one thousand
30 dollars ($1,000) for each day that the owner fails to maintain the
31 property, commencing on the day following the expiration of the
32 period to remedy the violation established by the governmental
33 entity.
34 (3) Subject to the provisions of this section, a governmental
35 entity may establish different compliance periods for different
36 conditions on the same property in the notice of alleged violation
37 mailed to the legal owner.
38 (b) For purposes of this section, "failure to maintain" means
39 failure to care for the exterior of the property, including, but not
40 limited to, permitting excessive foliage growth that diminishes the
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value of 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.
(c) Notwithstanding subdivisions (a) and (b), a governmental
entity may provide less than 30 days' notice to remedy a condition
before imposing a civil fine if the entity determines that a specific
condition of the property threatens public health or safety and
provided that notice of that determination and time for compliance
is given.
(d) Fines and penalties collected pursuant to this section shall
be directed to local nuisance abatement programs.
(e) A governmental entity may not impose fines on a legal owner
under both this section and a local ordinance.
(f) These provisions shall not preempt any local ordinance.
(g) This section shall only apply to residential real property.
(h) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies
provided by law.
(i) This section shall reataitt itt effeet ettly until jarmary 1, 204-3-,
and as of that date is repealed, urdess a later enacted statute,-Ihat
is enaeted before january 1, 2013, deletes or extends that date—
SEC. 5. Section 1161b of the Code of Civil Procedure is
amended to read:
1161b. (a) Notwithstanding Section 1161a, a tenant or
subtenant in possession of a rental housing unit at the time the
property is sold in foreclosure shall be given 60 days' written
notice to quit pursuant to Section 1162 before the tenant or
subtenant may be removed from the property as prescribed in this
chapter.
(b) This section shall not apply if any party to the note remains
in the property as a tenant, subtenant, or occupant.
is enacted before january 1, 2013, deletes or extends that d
SEC. 6. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
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1 SEC. 7. No reimbursement is required by this act pursuant to
2 Section 6 of Article XIIIB of the California Constitution because
3 the only costs that may be incurred by a local agency or school
4 district will be incurred because this act creates a new crime or
5 infraction, eliminates a crime or infraction, or changes the penalty
6 for a crime or infraction, within the meaning of Section 17556 of
7 the Government Code, or changes the definition of a crime within
8 the meaning of Section 6 of Article XIII B of the California
9 Constitution.
0
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AMENDED IN SENATE JANUARY 11, 2012
AMENDED IN SENATE JANUARY 4, 2012
AMENDED IN SENATE MAY 31, 2011
AMENDED IN SENATE MAY 10, 2011
AMENDED IN SENATE APRIL 12, 2011
SENATE BILL No. 708
Introduced by Senator Corbett
(Principal coauthor: Assembly Member Beall)
(Coauthor: SenatorDeSaulnier)
(Coauthor: Assembly Member Bonilla)
February 18, 2011
An act to amend Sections 2923.5, 2923.6, 2924.8, and 2929.3 of the
Civil Code, and to amend Section 1161b of the Code of Civil Procedure,
relating to mortgages.
LEGISLATIVE COUNSEL'S DIGEST
SB 708, as amended, Corbett. Residential mortgage loans: foreclosure
procedures.
Upon a breach of the obligation of a mortgage or transfer of an interest
in property, existing law requires the trustee, mortgagee, or beneficiary
to comply with certain procedures, including recording a notice of
default, and mailing the notice of default to the mortgagor or trustor.
Existing law, until January 1, 2013, imposes additional requirements
on mortgagees, trustees, beneficiaries, and authorized agents for
residential mortgage loans made from January 1, 2003, to December
31, 2007, inclusive, including prohibiting the filing of a notice of default
on a mortgage or deed of trust secured by owner - occupied real property
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until 30 days after the borrower is contacted or 30 days after satisfying
due diligence requirements to contact the borrower, as specified.
Existing law, until January 1, 2013, gives a tenant or subtenant in
possession of a rental housing unit, at the time the property is sold in
foreclosure, 60 days to remove himself or herself from the property.
Existing law requires a trustee or authorized representative to post a
notice on the property to be sold that contains specified information
relating to the rights of the resident of the property, and makes it a crime
to tear down the notice within 72 hours of the time the notice is posted.
This bill would extend the operation of all of the provisions specified
above to January 1, 2018. The bill would also revise the notice relating
to the rights of the resident.
By extending the operative period of a crime, the bill would impose
a state - mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for malting that reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State - mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 2923.5 of the Civil Code is amended to
2 read:
3 2923.5. (a) (1) A mortgagee, trustee, beneficiary, or authorized
4 agent may not file a notice of default pursuant to Section 2924
5 until 30 days after initial contact is made as required by paragraph
6 (2) or 30 days after satisfying the due diligence requirements as
7 described in subdivision (g).
8 (2) A mortgagee, beneficiary, or authorized agent shall contact
9 the borrower in person or by telephone in order to assess the
10 borrower's financial situation and explore options for the borrower
11 to avoid foreclosure. During the initial contact, the mortgagee,
12 beneficiary, or authorized agent shall advise the borrower that he
13 or she has the right to request a subsequent meeting and, if
14 requested, the mortgagee, beneficiary, or authorized agent shall
15 schedule the meeting to occur within 14 days. The assessment of
16 the borrower's financial situation and discussion of options may
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occur during the first contact, or at the subsequent meeting
scheduled for that purpose. In either case, the borrower shall be
provided the toll -free telephone number made available by the
United States Department of Housing and Urban Development
(HUD) to find a HUD - certified housing counseling agency. Any
meeting may occur telephonically.
(b) A notice of default filed pursuant to Section 2924 shall
include a declaration that the mortgagee, beneficiary, or authorized
agent has contacted the borrower, has tried with due diligence to
contact the borrower as required by this section, or that no contact
was required pursuant to subdivision (h).
(c) If a mortgagee, trustee, beneficiary, or authorized agent had
already filed the notice of default prior to the enactment of this
section and did not subsequently file a notice of rescission, then
the mortgagee, trustee, beneficiary, or authorized agent shall, as
part of the notice of sale filed pursuant to Section 2924f, include
a declaration that either:
(1) States that the borrower was contacted to assess the
borrower's financial situation and to explore options for the
borrower to avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the
event no contact was made.
(d) A mortgagee's, beneficiary's, or authorized agent's loss
mitigation personnel may participate by telephone during any
contact required by this section.
(e) For purposes of this section, a "borrower" shall include a
mortgagor or trustor.
(0 A borrower may designate, with consent given in writing, a
HUD - certified housing counseling agency, attorney, or other
advisor to discuss with the mortgagee, beneficiary, or authorized
agent, on the borrower's behalf, the borrower's financial situation
and options for the borrower to avoid foreclosure. That contact
made at the direction of the borrower shall satisfy the contact
requirements of paragraph (2) of subdivision (a). Any loan
modification or workout plan offered at the meeting by the
mortgagee, beneficiary, or authorized agent is subject to approval
by the borrower.
(g) A notice of default may be filed pursuant to Section 2924
when a mortgagee, beneficiary, or authorized agent has not
contacted a borrower as required by paragraph (2) of subdivision
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(a) provided that the failure to contact the borrower occurred
despite the due diligence of the mortgagee, beneficiary, or
authorized agent. For proposes of this section, "due diligence"
shall require and mean all of the following:
(1) A mortgagee, beneficiary, or authorized agent shall first
attempt to contact a borrower by sending a first -class letter that
includes the toll -free telephone number made available by HUD
to find a HUD - certified housing counseling agency.
(2) (A) After the letter has been sent, the mortgagee,
beneficiary, or authorized agent shall attempt to contact the
borrower by telephone at least three times at different hours and
on different days. Telephone calls shall be made to the primary
telephone number on file.
(B) A mortgagee, beneficiary, or authorized agent may attempt
to contact a borrower using an automated system to dial borrowers,
provided that, if the telephone call is answered, the call is
connected to a live representative of the mortgagee, beneficiary,
or authorized agent.
(C) A mortgagee, beneficiary, or authorized agent satisfies the
telephone contact requirements of this paragraph if it determines,
after attempting contact pursuant to this paragraph, that the
borrower's primary telephone number and secondary telephone
number or numbers on file, if any, have been disconnected.
(3) If the borrower does not respond within two weeks after the
telephone call requirements of paragraph (2) have been satisfied,
the mortgagee, beneficiary, or authorized agent shall then send a
certified letter, with return receipt requested.
(4) The mortgagee, beneficiary, or authorized agent shall provide
• means for the borrower to contact it in a timely manner, including
• toll -free telephone number that will provide access to a live
representative during business hours.
(5) The mortgagee, beneficiary, or authorized agent has posted
a prominent link on the homepage of its Internet Web site, if any,
to the following information:
(A) Options that may be available to borrowers who are unable
to afford their mortgage payments and who wish to avoid
foreclosure, and instructions to borrowers advising them on steps
to take to explore those options.
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(B) A list of financial documents borrowers should collect and
be prepared to present to the mortgagee, beneficiary, or authorized
agent when discussing options for avoiding foreclosure.
(C) A toll -free telephone number for borrowers who wish to
discuss options for avoiding foreclosure with their mortgagee,
beneficiary, or authorized agent.
(D) The toll -free telephone number made available by HUD to
find a HUD - certified housing counseling agency.
(h) Subdivisions (a), (c), and (g) shall not apply if any of the
following occurs:
(1) The borrower has surrendered the property as evidenced by
either a letter confirming the surrender or delivery of the keys to
the property to the mortgagee, trustee, beneficiary, or authorized
agent.
(2) The borrower has contracted with an organization, person,
or entity whose primary business is advising people who have
decided to leave their homes on how to extend the foreclosure
process and avoid their contractual obligations to mortgagees or
beneficiaries.
(3) A case has been filed by the borrower under Chapter 7, 11,
12, or 13 of Title 11 of the United States Code and the bankruptcy
court has not entered an order closing or dismissing the bankruptcy
case, or granting relief from a stay of foreclosure.
(i) This section shall apply only to mortgages or deeds of trust
recorded from January 1, 2003, to December 31, 2007, inclusive,
that are secured by owner - occupied residential real property
containing no more than four dwelling units. For purposes of this
subdivision, "owner- occupied" means that the residence is the
principal residence of the borrower as indicated to the lender in
loan documents.
0) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.
SEC. 2. Section 2923.6 of the Civil Code is amended to read:
2923.6. (a) The Legislature finds and declares that any duty
servicers may have to maximize net present value under their
pooling and servicing agreements is owed to all parties in a loan
pool, or to all investors under a pooling and servicing agreement,
not to any particular party in the loan pool or investor under a
palling pooling and servicing agreement, and that a servicer acts
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in the best interests of all parties to the loan pool or investors in
the pooling and servicing agreement if it agrees to or implements
a loan modification or workout plan for which both of the following
apply:
(1) The loan is in payment default, or payment default is
reasonably foreseeable.
(2) Anticipated recovery under the loan modification or workout
plan exceeds the anticipated recovery through foreclosure on a net
present value basis.
(b) It is the intent of the Legislature that the mortgagee,
beneficiary, or authorized agent offer the borrower a loan
modification or workout plan if such a modification or plan is
consistent with its contractual or other authority.
(c) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.
SEC. 3. Section 2924.8 of the Civil Code is amended to read:
2924.8. (a) Upon posting a notice of sale pursuant to Section
2924f, a trustee or authorized agent shall also post the following
notice, in the manner required for posting the notice of sale on the
property to be sold, and a mortgagee, trustee, beneficiary, or
authorized agent, concurrently with the mailing of the notice of
sale pursuant to Section 2924b, shall send by first -class mail in an
envelope addressed to the "Resident of property subject to
foreclosure sale" the following notice in English and the languages
described in Section 1632: 'Toreelostwe proeess has begun on this
propertr, which may affect your right to eotA4"e to live iii this
propefty. Twenty days or more after the date of this netiee, this
property may be sold at foreclosure. ify 'F,trl
t4ie tiew property owner may either give I.Ik4
agreement or provide you with a 60 day -"14eti-un notie-e. TloiftFevef,
other laws may prohibit an evietion iit this eiretifflstanee or pfevide
you with a longer natiee before evietion. *ftu may wish to comae
disetiss any fights you may have."
"You are not required to move at this time. However, the
foreclosure process has begun on this property, which may affect
your right to continue to live in this property in the future. Twenty
days or more after the date of this notice, this property may be
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sold at foreclosure. If you are renting this property, your tenancy
may continue after the foreclosure sale. In order for the new owner
to evict you, the new owner mustprovide you with at least 60 days
written eviction notice or 90 days ifreguired by any otherprovision
of state or federal law. However, some laws may prohibit an
eviction. You should contact a lawyer or housing counseling agency
to discuss any rights you may have. Ifyou do not lmow an attorney,
you may want to call an attorney referral service. If you cannot
afford an attorney, you may be eligible for free legal services from
a nonprofit legal services program."
(b) It shall be an infraction to tear down the notice described in
subdivision (a) within 72 hours of posting. Violators shall be
subject to a fine of one hundred dollars ($100).
(c) A state government entity shall make available translations
of the notice described in subdivision (a) which may be used by a
mortgagee, trustee, beneficiary, or authorized agent to satisfy the
requirements of this section.
(d) This section shall only apply to loans secured by residential
real property, and if the billing address for the mortgage note is
different than the property address.
(e) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.
SEC. 4. Section 2929.3 of the Civil Code is amended to read:
2929.3. (a) (1) A legal owner shall maintain vacant residential
property purchased by that owner at a foreclosure sale, or acquired
by that owner through foreclosure under a mortgage or deed of
trust. A governmental entity may impose a civil fine of up to one
thousand dollars ($1,000) per day for . a violation. If the
governmental entity chooses to impose a fine pursuant to this
section, it shall give notice of the alleged violation, including a
description of the conditions that gave rise to the allegation, and
notice of the entity's intent to assess a civil fine if action to correct
the violation is not commenced within a period of not less than 14
days and completed within a period of not less than 30 days. The
notice shall be mailed to the address provided in the deed or other
instrument as specified in subdivision (a) of Section 27321.5 of
the Govermnent Code, or, if none, to the return address provided
on the deed or other instrument.
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MIM
(2) The governmental entity shall provide a period of not less
than 30 days for the legal owner to remedy the violation prior to
imposing a civil fine and shall allow for a hearing and opportunity
to contest any fine imposed. In determining the amount of the fine,
the governmental entity shall take into consideration any timely
and good faith efforts by the legal owner to remedy the violation.
The maximum civil fine authorized by this section is one thousand
dollars ($1,000) for each day that the owner fails to maintain the
property, commencing on the day following the expiration of the
period to remedy the violation established by the governmental
entity.
(3) Subject to the provisions of this section, a governmental
entity may establish different compliance periods for different
conditions on the same property in the notice of alleged violation
mailed to the legal owner.
(b) For purposes of this section, "failure to maintain" means
failure to care for the exterior of the property, including, but not
limited to, permitting excessive foliage growth that diminishes the
value of 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.
(c) Notwithstanding subdivisions (a) and (b), a governmental
entity may provide less than 30 days' notice to remedy a condition
before imposing a civil fine if the entity determines that a specific
condition of the property threatens public health or safety and
provided that notice of that determination and time for compliance
is given.
(d) Fines and penalties collected pursuant to this section shall
be directed to local nuisance abatement programs.
(c) A governmental entity may not impose fines on a legal owner
under both this section and a local ordinance.
(f) These provisions shall not preempt any local ordinance.
(g) This section shall only apply to residential real property.
(h) The rights and remedies provided in this section are
cumulative and in addition to any other rights and remedies
provided by law.
(i) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.
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SEC. 5. Section 1161b of the Code of Civil Procedure is
amended to read:
1161b. (a) Notwithstanding Section 1161a, a tenant or
subtenant in possession of a rental housing unit at the time the
property is sold in foreclosure shall be given 60 days' written
notice to quit pursuant to Section 1162 before the tenant or
subtenant may be removed from the property as prescribed in this
chapter.
(b) This section shall not apply if any party to the note remains
in the properly as a tenant, subtenant, or occupant.
(c) This section shall remain in effect only until January 1, 2018,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2018, deletes or extends that date.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIIIB of the California
Constitution.
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AMENDED IN ASSEMBLY JANUARY 23, 2012
AMENDED IN ASSEMBLY JANUARY 9, 2012
AMENDED IN ASSEMBLY JANUARY 4, 2012
AMENDED IN ASSEMBLY APRIL 25, 2011
CALIFORNIA LEGISLATURE - 2011 -12 REGULAR SESSION
ASSEMBLY BILL No. 317
Introduced by Assembly Member Charles Calderon
February 9, 2011
An act to amend Sections 798.21 and 798.74.5 of the Civil Code,
relating to mobilehomes.
LEGISLATIVE COUNSEL'S DIGEST
AB 317, as amended, Charles Calderon. Mobilehomes.
Existing law, the Mobilehome Residency Law, governs tenancies in
mobilehome parks, and imposes various duties on the owners of
mobilehome parks and the agents and representatives authorized to act
on behalf of the owners. Existing law exempts a rental agreement from
any local ordinance, rule, regulation, or initiative that establishes a
maximum amount that a landlord may charge a tenant for rent if a
mobilehome space within a mobilehome park is not the principal
residence, as defined, of the mobilehome owner. Existing law further
makes those exemptions inapplicable under certain circumstances.
This bill would revise the conditions under which a tenancy is exempt
from a local rent control ordinance, rule, regulation, or initiative, to,
among other things, make the exemptions applicable when the
mobilehome space is not the sole residence of the mobilehome owner.
The bill would specify the evidence upon which management of a
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mobilehome park may rely to determine whether a residence is the
mobilehome owner's sole residence, including, among others factors,
evidence that a mobilehome owner rents, leases, occupies, or has a
present ownership interest in another place of residence. The bill would
require management to provide the homeowner with 90 days' written
notice of any proposed rent modifications based on lack of sole
residency at the mobilehome park, and specify related procedures,
including mandatory binding voluntary arbitration if the homeown
mobilehome owner disputes management's determination, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State - mandated local program: no.
The people of the State of California do enact as follows
1 SECTION 1. Section 798.21 of the Civil Code is amended to
2 read:
3 798.21. (a) Notwithstanding Section 798.17, if a mobilehome
4 space within a mobilehome park is not the sole residence of the
5 mobilehome owner, it shall be exempt from.any ordinance, rile,
6 regulation, or initiative measure adopted by any city, county, or
7 city and county, that establishes a maximum amount that the
8 landlord may charge a tenant for rent.
9 (b) Nothing in this section shall be construed to authorize
10 management to gain access to any records which would otherwise
11 be confidential or privileged.
12 (c) The management of a mobilehome park shall not modify
13 the rent or other terms of tenancy pursuant to this section without
14 providing the mobilehome owner with written notice 90 days in
15 advance of the effective date of the proposed modification. The
16 notice shall include copies of or evidence in determination of the
17 modification.
18 (d) Evidence that a mobilehome is not the sole residence of the
19 mobilehome owner shall be weighed in light of the totality of the
20 circumstances. Evidence may include, but is not limited to, the
21 following:
22 (1) The mobilehome owner rents, leases, occupies, or has a
23 present ownership interest in another place of residence. An
24 ownership interest in a place of residence solely and exclusively
25 occupied by the mobilehome owner's child or parent and his or
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her immediately family shall not serve as evidence that the
mobilehome is not the sole residence of the mobilehome owner.
(2) Another place of residence appears as a matter of public
record or in other evidence obtained by management.
(3) Monthly statements are mailed to, or payments are made
from, a different place of residence.
(4) The mobilehome owner is regularly absent from the
mobilehome for extended periods aftine, of tine, other than for
military service, hospitalization, vacation, family or friend
emergency care, or other reasonable temporary or seasonal periods
of absence, such as travel necessitated by employment or education.
(5) The mobilehome is used primarily for vacationing, storage,
or business.
(6) The mobilehome has been subleased or possession of the
mobilehome has been transferred without management's approval,
as provided in Sections 798.74 and 798.75.
(7) A review of state or county records demonstrates that the
homeowner is receiving a homeowner's exemption for another
property or mobilehome.
(e) The mobilehome owner shall have 30 days from the date
the management's notice is mailed to review and dispute the
management's findings in writing.
(f) Any disputes pursuant to this section -shall may be arbitrated
at the tenants sole determination if the tenant lanowingly and
voluntarily chooses to use arbitration by notifying the management
in writing within 30 days after the dispute has arisen. If the tenant
chooses arbitration, the following shall apply:
(1) The owner or management of the mobilehome park shall
pay the costs of the arbitration.
(2) The parties shall meet and confer to select a mutually
agreeable arbitrator. If the parties cannot agree to an arbitrator
within 10 days after the homeowner's written response is received,
the management shall obtain a list of five arbitrators from any bona
fide dispute resolution provider serving the judicial district in
which the mobilehome park is located. Each party shall be able to
disqualify up to two arbitrators from the list. Any remaining
arbitrator may be selected.
(3) Within 30 days after selection, the arbitrator shall, at a time
and place reasonably convenient to the parties, hear the evidence
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relevant to the dispute. No attorney may represent either party at
an arbitration hearing.
(4) Within 15 days of hearing the evidence, the abitram
arbitrator shall render a written decision as to whether the
mobilehome is the sole residence of the mobilehome owner. The
decision of the arbitrator is final. If the management of the
mobilehome park prevails in arbitration, it may modify the rent,
or any other tenancy tetras, as provided in the notice pursuant to
subdivision (c). If the homeowner prevails, management may not
modify the rent or any other tenancy terms, as provided in the
notice.
(g) This section shall not apply under any of the following
circumstances:
(1) The mobilehome is the sole residence of the mobilehome
owner. For purposes of this subdivision, a mobilehome owner
includes a person who has a full -time tenancy in a mobilehome
park under a rental agreement, a senior who is a full -time resident
of a mobilehome owned by a child of the senior, or a child with a
disability or handicap who is a full -time resident of a mobilehome
owned by a parent or guardian of the child.
(2) The space is subleased by the owner for a medical hardship
pursuant to Section 798.23.5.
(3) Ownership of the mobilehome is transferred, upon the death
of the mobilehome owner, to an heir, joint tenant, or personal
representative pursuant to Section 798.78.
(4) Management elects to apply an exemption or right set forth
in the ordinance, rule, regulation, or initiative measure that
establishes a maximum amount that a landlord may charge a tenant
for rent.
(5) The mobilehome is being actively held available for sale by
the mobilehome owner, or pursuant to a listing agreement with.a
real estate broker licensed pursuant to Chapter 3 (commencing
with Section 10130) of Part 1 of Division 4 of the Business and
Professions Code, or a mobilehome dealer, as defined in Section
18002.6 of the Health and Safety Code. A mobilehome owner,
real estate broker, or mobilehome dealer attempting to sell a
mobilehome shall actively market and advertise the mobilehome
for sale in good faith to bona fide purchasers for value in order to
remain exempt pursuant to this paragraph. This paragraph shall
apply as long as the mobilehome remains vacant and unoccupied,
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but if the mobilehome is occupied, this paragraph shall only apply
after a reasonable time for sale of the mobilehome has been
provided, not to exceed 120 days after the date of service of the
notice described in subdivision (c).
(h) If management authorizes the subleasing of mobilehomes
in the park, management shall allow the mobilehome owner to
sublease the mobilehome and shall not restrict the amount of rent
that the mobilehome owner may charge. For the term of the
sublease, the space shall be exempt from any ordinance, rule,
regulation, or initiative measure adopted by a city, county, or city
and county, that establishes a maximum amount of rent that a
landlord may charge a tenant. Upon reoccupation of the space by
the mobilehome owner after the term of the sublease has expired,
the last rental rate charged to the mobilehome owner shall be the
base rental rate for purposes of the ordinance, rule, regulation, or
initiative measure, in addition to any increases that were allowed
during the term of the sublease.
SEC. 2. Section 798.74.5 of the Civil Code is amended to read:
798.74.5. (a) Within two business days of receiving a request
from a prospective homeowner for an application for residency
for a specific space within a mobilehome park, if the management
has been advised that the mobilehome occupying that space is for
sale, the management shall give the prospective homeowner a
separate document in at least 12 -point type entitled
"INFORMATION FOR PROSPECTIVE HOMEOWNERS,"
which includes the following statements:
"As a prospective homeowner you are being provided with certain
information you should ]snow prior to applying for tenancy in a
mobilehome park. This is not meant to be a complete list of
information.
Owning a home in a mobilehome park incorporates the dual role
of "homeowner" (the owner of the home) and park resident or
tenant (also called a "homeowner" in the Mobilehome Residency
Law). As a homeowner under the Mobilehome Residency Law,
you will be responsible for paying the amount necessary to rent
the space for your home, in addition to other fees and charges
described below. You must also follow certain rules and regulations
to reside in the park.
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If you are approved for tenancy, and your tenancy commences
within the next 30 days, your beginning monthly rent will be $
(must be completed by the management) for space number
(must be completed by the management). Additional information
regarding future rent or fee increases may also be provided.
In addition to the monthly rent, you will be obligated to pay to the
park the following additional fees and charges listed below. Other
fees or charges may apply depending upon your specific requests.
Metered utility charges are based on use.
(Management shall describe the fee or charge and a good faith
estimate of each fee or charge)
Some spaces are governed by an ordinance, rule, regulation, or
initiative measure that limits or restricts rents inmobilehome parks.
These laws are commonly known as "rent control." Prospective
purchasers who do not occupy the mobilehome as their sole
residence may be subject to rent levels which are not governed by
these laws. Long -term leases specify rent increases during the term
of the lease. By signing a rental agreement or lease for a term of
more than one year, you may be removing your rental space from
a local rent control ordinance during the term, or any extension,
of the lease if a local rent control ordinance is in effect for the area
in which the space is located.
A fully executed lease or rental agreement, or a statement signed
by the park's management and by you stating that you and the
management have agreed to the terms and conditions of a rental
agreement, is required to complete the sale or escrow process of
the home. You have no rights to tenancy without a properly
executed lease or agreement or that statement. (Civil Code Section
798.75)
If the management collects a fee or charge from you in order to
obtain a financial report or credit rating, the full amount of the fee
or charge will be either credited toward your first month's rent or,
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if you are rejected for any reason, refunded to you. However, if
you are approved by management, but, for whatever reason, you
elect not to purchase the mobilehome, the management may retain
the fee to defray its administrative costs. (Civil Code Section
798.74)
We encourage you to request from management a copy of the lease
or rental agreement, the park's rules and regulations, and a copy
of the Mobilehome Residency Law. Upon request, park
management will provide you a copy of each document. We urge
you to read these documents before malting the decision that you
want to become a mobilehome park resident.
Dated:
Signature of Park Manager: -
Acknowledge Receipt by Prospective Homeowner:
(b) Management shall provide a prospective homeowner, upon
his or her request, with a copy of the rules and regulations of the
park and with a copy of this chapter.
U
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CALIFORNIA LEGISLATURE- 2011 -12 REGULAR SESSION
ASSEMBLY BILL No. 2044
Introduced by Assembly Member Wagner
February 23, 2012
An act to amend Section 415.46 of the Code of Civil Procedure,
relating to service of process.
LEGISLATIVE COUNSEL'S DIGEST
AB 2044, as introduced, Wagner. Service of process: unlawful
detainer.
Existing law establishes a procedure for service of process in actions
for unlawful detainer with respect to occupants, as specified, which if
complied with prohibits any occupant form objecting to enforcement
of the judgment, including with respect to service of a prejudgment
claim of possession. Existing law provides that among the methods of
service, a prejudgment claim of right to possession may also be served
on any person who appears to be or who may claim to have occupied
the premises at the time of the filing of the action.
This bill would, in addition, provide that service of a prejudgment
claim of right to possession may be served on any person who is over
18 years of age and apparently left in charge of the premises.
Existing law requires that service of the prejudgment claim of right
to possession be effected, as specified, by a marshal, sheriff, or
registered process server.
This bill would provide that service may also be effected by a person
who is at least 18 years of age and not a party to the action. The bill
would make additional conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State - mandated local program: no.
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AB 2044
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The people of the State of California do enact as follows:
1 SECTION 1. Section 415.46 of the Code of Civil Procedure
2 is amended to read:
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415.46. (a) In addition to the service of a summons and
complaint in an action for unlawful detainer upon a tenant and
subtenant, if any, as prescribed by this article, a prejudgment claim
of right to possession may also be served on any person who
appears to be. or who may claim to have occupied the premises at
the time of the filing of the action or is over 18 years of age and
apparently left in charge of the premises. Service upon occupants
shall be made pursuant to subdivision (c) by serving a copy of a
prejudgment. claim of right to possession, as . specified in
subdivision (f), attached to a copy of the summons and complaint
at the same time service is made upon the tenant and subtenant, if
any.
(b) Service of the prejudgment claim of right to possession in
this manner shall be effected by a marshal, sheriff, or registered
process server or in the manner described in Section 414.10.
(c) When serving the summons and complaint upon a tenant
and subtenant, if any, the marshal, sheriff,-or registered process
server, or other authorized server pursuant to Section 414.10 shall
make a reasonably diligent effort to ascertain whether there are
other adult occupants of the premises who are not named in the
summons and complaint by inquiring of the person or persons who
are being personally served, or any person of suitable age and
discretion who appears to reside upon the premises, whether there
are other occupants of the premises.
If the identity of -such an occupant is disclosed to the officer or
process server and the occupant is present at the premises, the
officer or process server shall serve that occupant with a copy of.
the prejudgment claim of right to possession attached to a copy of
the summons and complaint. If personal service cannot be made
upon that occupant at that time, service may be effected by (1)
leaving a copy of a prejudgment claim of right to possession
attached to a copy of the summons and complaint addressed to
that occupant with a person of suitable age and discretion at the
premises, (2) affixing the same so that it is not readily removable
in a conspicuous place on the premises in a manner most likely to
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give actual notice to that occupant, and (3) sending the same
addressed to that occupant by first -class mail.
In addition to the service on an identified occupant, or if no
occupant is disclosed to the officer or process server, or if
substituted service is made upon the tenant and subtenant, if any,
the officer or process server shall serve a prejudgment claim of
right to possession for all other persons who may claim to occupy
the premises at the time of the filing of the action by (1) leaving
a copy of a prejudgment claim of right to possession attached to
a copy of the summons and complaint at the premises at the same
time service is made upon the tenant and subtenant, if any, (2)
affixing the same so that it is not readily removable in a
conspicuous place on the premises so that it is likely to give actual
notice to an occupant, and (3) sending the same addressed to "all
occupants in care of the named tenant" to the premises by fast -class
mail.
The person serving process shall state the date of service on the
prejudgment claim of right to possession form. However, the
absence of the date of service on the prejudgment claim of right
to possession does not invalidate the claim.
(d) Proof of service under this section shall be filed with the
court and shall include a statement that service was made pursuant
to this section. Service on occupants in accordance with this section
shall not alter or affect service upon the tenant or subtenant, if any.
(e) If an owner or his or her agent has directed and obtained
service of a prejudgment claim of right to possession in accordance
with this section, no occupant of the premises, whether or notstteh
that occupant is named in the judgment for possession, may object
to the enforcement of that judgment as prescribed in Section
1174.3.
(f) The prejudgment claim of right to possession shall be made
on the following form:
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AB 2044
NOTICE
EVERYONE WHO LIVES IN THIS RENTAL UNIT MAY BE
EVICTED BY COURT ORDER. READ THIS FORM IF YOU LIVE
HERE AND YOUR NAME IS NOT ON THE ATTACHED
SUMMONS AND COMPLAINT.
If you live here and you do not complete and submit this form within 10
days of the date of service shown on this form, you will be evicted
without further hearing by the court along with the persons named in the
summons and complaint.
If you file this form, your claim will be determined in the eviction action
against the persons named in the complaint.
If you do not file this form, you will be evicted without further hearing.
CLAIMANT OR CLAIMANT'S ATTORNEY TF.LFPHONF. NO. FOR COURT USE ONLY
(Name and Address):
ATTORNEY FOR (Nmm):
NAME OF COURT`.
STREETADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
PLAINTIFF:
DEFENDANT:
PREJUDGMENT CLAIM OF RIGHT
TO POSSESSION
DATE OF SERVICE:
(Date that form is served or
delivered, posted and mailed by
the officer or process server)
Complete this form only if ALL of these statements are true:
1. You are NOT named in the accompanying Summons and
Complaint.
2. You occupied the subject premises on or before the date
the unlawful detainer (eviction) complaint was filed.
(The date is in the accompanying Summons and Complaint.)
3. You still occupy the subject premises.
PREJUDGMENT CLAIM OF RIGHT TO POSSESSION
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I DECLARE THE FOLLOWING UNDER PENALTY OF PERJURY
1. My name is (specify):
2. I reside at (street address, unit no., city and ZIP code):
3. The address of "the premises" subject to this claim is (address):
4. On (insert date): 0, the landlord or the landlord's
authorized agent filed a complaint to recover possession of the premises.
(This date is in the accompanying Summons and Complaint.)
5. I occupied the premises on the date the complaint was filed (the date in
item 4). I have continued to occupy the premises ever since.
6. I was at least 18 years of age on the date the complaint was filed (the date
in item 4).
7. I claim a right to possession of the premises because I occupied the
premises on the date the complaint was filed (the date in item 4).
8. I was not named in the Summons and Complaint.
9. I understand that if I make this claim of possession, I will be added as a
defendant to the unlawful detainer (eviction) action.
10. (Filing fee) I understand that I must go to the court and pay a filing fee of
$ or file with the court "Application for Waiver of Court
Fees and Costs." I understand that if I don't pay the filing fee or file the
form for waiver of court fees within 10 days from the date of service on
the form (excluding court holidays), I will not be entitled to make a claim
of right to possession. I also understand that I will have 5 days (excluding
court holidays) to file a response to the Summons and Complaint after I
file this claim of possession.
NOTICE: If you fail to file this claim, you will be evicted without
further hearing.
PREJUDGMENT CLAIM OF RIGHT TO POSSESSION
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11. Rental agreement. I have (check all that apply to you):
a. ❑ an oral rental agreement with the landlord.
b. ❑ a written rental agreement with the landlord.
c. ❑ an oral rental agreement with a person other than the landldrd.
d. ❑ a written rental agreement with a person other than the landlord.
e. ❑ other (explain):
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct. _
WARNING: Perjury is a felony punishable by imprison-
ment in the state prison.
Date:
....................... ............... ,
(TYPE OR PRINT NAME) (SIGNATURE OF CLAIMANT)
NOTICE: If you file this claim to possession, the unlawful detainer action
against you will be determined at trial. At trial, you may be found liable for
rent, costs, and, in some cases, treble damages.
PREJUDGMENT CLAIM OF RIGHT TO POSSESSION
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NOTICE TO OCCUPANTS
YOU MUST ACT AT ONCE IF ALL THE FOLLOWING ARE
TRUE:
(1) You are not named in the accompanying Summons and Complaint.
(2) You occupied the premises on or before the date the unlawful
detainer (eviction) complaint was filed.
(3) You still occupy the premises.
You can complete and SUBMIT THIS CLAIM FORM within 10 days
from the date of service (on the form) at the court where the unlawful
detainer (eviction) complaint was filed.
If you do not complete and submit this form (and pay a filing fee or
file the form for proceeding in forma pauperis if you cannot pay the
fee), YOU WILL BE EVICTED.
After this form is properly filed, you will be added as a defendant in
the unlawful detainer (eviction) action and your right to occupy the
premises will be decided by the court. If you do not file this claim, you
will be evicted without a hearing.
PREJUDGMENT CLAIM OF RIGHT TO POSSESSION
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