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AB-2557 Real property: maintenance and abatement.(2011-2012)

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AB2557:v96#DOCUMENT

Amended  IN  Assembly  May 25, 2012
Amended  IN  Assembly  May 01, 2012
Amended  IN  Assembly  March 29, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 2557


Introduced  by  Assembly Member Feuer

February 24, 2012


An act to amend Section 2929.3 of add and repeal Section 2929.35 of the Civil Code, and to amend Section 17980.7 of the Health and Safety Code, relating to real property.


LEGISLATIVE COUNSEL'S DIGEST


AB 2557, as amended, Feuer. Real property: maintenance and abatement.
Existing law, until January 1, 2013, requires a legal owner to maintain vacant residential property purchased or acquired through foreclosure. Existing law also authorizes a governmental entity to impose civil fines for failure to maintain that property of up to $1,000 per day for a violation, after notice and an opportunity to correct the violation is given.
This bill would, until January 1, 2016, authorize a person whose property is in Los Angeles County and who is injuriously affected or whose enjoyment is lessened by a property owner’s violation of those property maintenance provisions to bring an action for injunctive relief. The bill would require a person who seeks an injunction to provide the legal owner by mail a written description of the conditions that gave rise to the violation, and identify the person’s intent to seek an injunction if action to correct the violation is not commenced and completed within a specified period of time. The bill would authorize an action to be brought either in a small claims court or superior court within the county in which the property is situated. the Superior Court of Los Angeles County. The bill would also authorize a prevailing plaintiff to recover court costs and reasonable attorney’s fees if the action is brought in the superior court.
Existing law provides for abatement of substandard conditions in buildings and authorizes an enforcement agency to issue an order or notice to repair or abate violations of specified building standards. Under existing law, if the owner of a property with substandard conditions fails to comply within a reasonable time period with the terms of the order or notice, the enforcement agency, tenant, or tenant association or organization may seek, and the court may order, the appointment of a receiver for the substandard building.
This bill would also authorize any district attorney, county counsel, or city attorney with jurisdiction over the substandard building, acting in the name of the people, to seek a court order for the appointment of a receiver for the substandard building.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.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 Government Code, or, if none, to the return address provided on the deed or other instrument.

(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)A legal owner who fails to maintain a vacant residential property in violation of paragraph (1) of subdivision (a) shall be subject to an action for injunctive relief brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened, by the property owner’s violation. A person who seeks an injunction pursuant to this subdivision shall provide the legal owner a written description of the conditions that gave rise to the violation and identify the person’s intent to seek an injunction 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, which shall be mailed to the address provided in the deed or other instrument as specified in subdivision (a) of Section 27321.5 of the Government Code, or, if none, to the return address provided on the deed or other instrument. An action brought pursuant to this subdivision may be brought either in a small claims court or the superior court of the county in which the property is situated. If the action is brought in superior court, a prevailing plaintiff may recover court costs and reasonable attorney’s fees.

(c)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.

(d)Notwithstanding subdivisions (a) and (c), 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.

(e)Fines and penalties collected pursuant to this section shall be directed to local nuisance abatement programs.

(f)A governmental entity may not impose fines on a legal owner under both this section and a local ordinance.

(g)These provisions shall not preempt any local ordinance.

(h)This section shall only apply to residential real property.

(i)The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.

(j)This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

SECTION 1.

 Section 2929.35 is added to the Civil Code, to read:

2929.35.
 (a) A legal owner who fails to maintain, as defined by subdivision (b) of former Section 2929.3, a vacant residential property in Los Angeles County purchased by that owner at a foreclosure sale, or acquired by that owner through foreclosure under a mortgage or deed of trust, shall be subject to an action for injunctive relief brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened, by the property owner’s violation.
(b) A person who seeks an injunction pursuant to this section shall provide the legal owner a written description of the conditions that gave rise to the violation and identify the person’s intent to seek an injunction 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, which shall be mailed to the address provided in the deed or other instrument, as specified in subdivision (a) of Section 27321.5 of the Government Code, or, if none, to the return address provided on the deed or other instrument.
(c) An action brought pursuant to this section may be brought either in a small claims court or the Superior Court of Los Angeles County. If the action is brought in superior court, a prevailing plaintiff may recover court costs and reasonable attorney’s fees.
(d) This section shall remain in effect only until January 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2016, deletes or extends that date.

SEC. 2.

 Section 17980.7 of the Health and Safety Code is amended to read:

17980.7.
 If the owner fails to comply within a reasonable time with the terms of the order or notice issued pursuant to Section 17980.6, the following provisions shall apply:
(a) The enforcement agency may seek and the court may order imposition of the penalties provided for under Chapter 6 (commencing with Section 17995).
(b) (1) The enforcement agency may seek and the court may order the owner to not claim any deduction with respect to state taxes for interest, taxes, expenses, depreciation, or amortization paid or incurred with respect to the cited structure, in the taxable year of the initial order or notice, in lieu of the enforcement agency processing a violation in accordance with Sections 17274 and 24436.5 of the Revenue and Taxation Code.
(2) If the owner fails to comply with the terms of the order or notice to correct the condition that caused the violation pursuant to Section 17980.6, the court may order the owner to not claim these tax benefits for the following year.
(c) The enforcement agency, tenant, tenant association or organization, or any district attorney, county counsel, or city attorney with jurisdiction over the substandard building, acting in the name of the people, may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision. In its petition to the court, the enforcement agency, tenant, tenant association or organization, or any district attorney, county counsel, or city attorney with jurisdiction over the substandard building shall include proof that notice of the petition was served not less than three days prior to filing the petition, pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure, to all persons with a recorded interest in the real property upon which the substandard building exists.
(1) In appointing a receiver, the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation.
(2) The court shall not appoint any person as a receiver unless the person has demonstrated to the court his or her capacity and expertise to develop and supervise a viable financial and construction plan for the satisfactory rehabilitation of the building. A court may appoint as a receiver a nonprofit organization or community development corporation. In addition to the duties and powers that may be granted pursuant to this section, the nonprofit organization or community development corporation may also apply for grants to assist in the rehabilitation of the building.
(3) If a receiver is appointed, the owner and his or her agent of the substandard building shall be enjoined from collecting rents from the tenants, interfering with the receiver in the operation of the substandard building, and encumbering or transferring the substandard building or real property upon which the building is situated.
(4) Any receiver appointed pursuant to this section shall have all of the following powers and duties in the order of priority listed in this paragraph, unless the court otherwise permits:
(A) To take full and complete control of the substandard property.
(B) To manage the substandard building and pay expenses of the operation of the substandard building and real property upon which the building is located, including taxes, insurance, utilities, general maintenance, and debt secured by an interest in the real property.
(C) To secure a cost estimate and construction plan from a licensed contractor for the repairs necessary to correct the conditions cited in the notice of violation.
(D) To enter into contracts and employ a licensed contractor as necessary to correct the conditions cited in the notice of violation.
(E) To collect all rents and income from the substandard building.
(F) To use all rents and income from the substandard building to pay for the cost of rehabilitation and repairs determined by the court as necessary to correct the conditions cited in the notice of violation.
(G) To borrow funds to pay for repairs necessary to correct the conditions cited in the notice of violation and to borrow funds to pay for any relocation benefits authorized by paragraph (6) and, with court approval, secure that debt and any moneys owed to the receiver for services performed pursuant to this section with a lien on the real property upon which the substandard building is located. The lien shall be recorded in the county recorder’s office in the county within which the building is located.
(H) To exercise the powers granted to receivers under Section 568 of the Code of Civil Procedure.
(5) The receiver shall be entitled to the same fees, commissions, and necessary expenses as receivers in actions to foreclose mortgages.
(6) If the conditions of the premises or the repair or rehabilitation thereof significantly affect the safe and sanitary use of the substandard building by any tenant, to the extent that the tenant cannot safely reside in his or her unit, then the receiver shall provide relocation benefits in accordance with subparagraph (A) of paragraph (3) of subdivision (d).
(7) The relocation compensation provided for in this section shall not preempt any local ordinance that provides for greater relocation assistance.
(8) In addition to any reporting required by the court, the receiver shall prepare monthly reports to the state or local enforcement agency which shall contain information on at least the following items:
(A) The total amount of rent payments received.
(B) Nature and amount of contracts negotiated relative to the operation or repair of the property.
(C) Payments made toward the repair of the premises.
(D) Progress of necessary repairs.
(E) Other payments made relative to the operation of the building.
(F) Amount of tenant relocation benefits paid.
(9) The receiver shall be discharged when the conditions cited in the notice of violation have been remedied in accordance with the court order or judgment and a complete accounting of all costs and repairs has been delivered to the court. Upon removal of the condition, the owner, the mortgagee, or any lienor of record may apply for the discharge of all moneys not used by the receiver for removal of the condition and all other costs authorized by this section.
(10) After discharging the receiver, the court may retain jurisdiction for a time period not to exceed 18 consecutive months, and require the owner and the enforcement agency responsible for enforcing Section 17980 to report to the court in accordance with a schedule determined by the court.
(11) The prevailing party in an action pursuant to this section shall be entitled to reasonable attorney’s fees and court costs as may be fixed by the court.
(12) The county recorder may charge and collect fees for the recording of all notices and other documents required by this section pursuant to Article 5 (commencing with Section 27360) of Chapter 6 of Division 2 of Title 3 of the Government Code.
(13) Nothing in this section shall be construed to limit those rights available to tenants and owners under any other provision of the law.
(14) Nothing in this section shall be construed to deprive an owner of a substandard building of all procedural due process rights guaranteed by the California Constitution and the United States Constitution, including, but not limited to, receipt of notice of the violation claimed and an adequate and reasonable period of time to comply with any orders which are issued by the enforcement agency or the court.
(d) If the court finds that a building is in a condition which substantially endangers the health and safety of residents pursuant to Section 17980.6, upon the entry of any order or judgment, the court shall do all of the following:
(1) Order the owner to pay all reasonable and actual costs of the enforcement agency including, but not limited to, inspection costs, investigation costs, enforcement costs, attorney fees or costs, and all costs of prosecution.
(2) Order that the local enforcement agency shall provide the tenant with notice of the court order or judgment.
(3) (A) Order that if the owner undertakes repairs or rehabilitation as a result of being cited for a notice under this chapter, and if the conditions of the premises or the repair or rehabilitation thereof significantly affect the safe and sanitary use of the premises by any lawful tenant, so that the tenant cannot safely reside in the premises, then the owner shall provide or pay relocation benefits to each lawful tenant. These benefits shall consist of actual reasonable moving and storage costs and relocation compensation. The actual moving and storage costs shall consist of all of the following:
(i) Transportation of the tenant’s personal property to the new location. The new location shall be in close proximity to the substandard premises, except where relocation to a new location beyond a close proximity is determined by the court to be justified.
(ii) Packing, crating, unpacking, and uncrating the tenant’s personal property.
(iii) Insurance of the tenant’s property while in transit.
(iv) The reasonable replacement value of property lost, stolen, or damaged (not through the fault or negligence of the displaced person, his or her agent or employee) in the process of moving, where insurance covering the loss, theft, or damage is not reasonably available.
(v) The cost of disconnecting, dismantling, removing, reassembling, reconnecting, and reinstalling machinery, equipment, or other personal property of the tenant, including connection charges imposed by utility companies for starting utility service.
(B) (i) The relocation compensation shall be an amount equal to the differential between the contract rent and the fair market rental value determined by the federal Department of Housing and Urban Development for a unit of comparable size within the area for the period that the unit is being repaired, not to exceed 120 days.
(ii) If the court finds that a tenant has been substantially responsible for causing or substantially contributing to the substandard conditions, then the relocation benefits of this section shall not be paid to this tenant. Each other tenant on the premises who has been ordered to relocate due to the substandard conditions and who is not substantially responsible for causing or contributing to the conditions shall be paid these benefits and moving costs at the time that he or she actually relocates.
(4) Determine the date when the tenant is to relocate, and order the tenant to notify the enforcement agency and the owner of the address of the premises to which he or she has relocated within five days after the relocation.
(5) (A) Order that the owner shall offer the first right to occupancy of the premises to each tenant who received benefits pursuant to subparagraph (A) of paragraph (3), before letting the unit for rent to a third party. The owner’s offer on the first right to occupancy to the tenant shall be in writing, and sent by first-class certified mail to the address given by the tenant at the time of relocation. If the owner has not been provided the tenant’s address by the tenant as prescribed by this section, the owner shall not be required to provide notice under this section or offer the tenant the right to return to occupancy.
(B) The tenant shall notify the owner in writing that he or she will occupy the unit. The notice shall be sent by first-class certified mail no later than 10 days after the notice has been mailed by the owner.
(6) Order that failure to comply with any abatement order under this chapter shall be punishable by civil contempt, penalties under Chapter 6 (commencing with Section 17995), and any other penalties and fines as are available.
(e) The initiation of a proceeding or entry of a judgment pursuant to this section or Section 17980.6 shall be deemed to be a “proceeding” or “judgment” as provided by paragraph (4) or (5) of subdivision (a) of Section 1942.5 of the Civil Code.
(f) The term “owner,” for the purposes of this section, shall include the owner, including any public entity that owns residential real property, at the time of the initial notice or order and any successor in interest who had actual or constructive knowledge of the notice, order, or prosecution.
(g) These remedies shall be in addition to those provided by any other law.
(h) Nothing in this section or in Section 17980.6 shall impair the rights of an owner exercising his or her rights established pursuant to Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code.