BILL NUMBER: SB 1473 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 26, 2012
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Hancock
(Coauthors: Senators DeSaulnier, Leno, and Pavley)
FEBRUARY 24, 2012
An act to amend Section 2924.8 of the Civil Code, and to amend
Section 1161b Sections 415.46 and 1161b
of the Code of Civil Procedure, relating to foreclosures
tenants .
LEGISLATIVE COUNSEL'S DIGEST
SB 1473, as amended, Hancock. Foreclosure: tenants.
Tenants: foreclosure and unlawful detainer.
Existing
(1) Existing law requires a
notice of sale to be posted before any power of sale can be exercised
under the power of sale contained in any deed of trust or mortgage.
Existing law, until January 1, 2013, requires a resident of property
upon which a notice of sale has been posted to be provided a
specified notice advising the resident that, among other things, if
the person is renting the property, the new property owner may either
give the tenant a new lease or rental agreement, or provide the
tenant with a 60-day eviction notice, and that other laws may
prohibit the eviction or provide the tenant with a longer notice
before eviction. Existing law makes it an infraction to tear down the
notice within 72 hours of posting. Existing law requires a state
government entity to make translations of the notice available in 5
specified languages, for use by a mortgagee, trustee, beneficiary, or
authorized agent, in order to satisfy the notice requirements.
This bill would revise certain portions of the notice to instead
require a resident of property upon which a notice of sale has been
posted to be advised that if the person is renting the property, the
new property owner may either give the tenant a new lease or rental
agreement, or provide the tenant with a 90-day eviction notice. The
bill would require the notice to advise a tenant who has a lease that
the new property owner is required to honor the lease unless
the new owner will occupy the property as a primary residence or
unless the lease was signed within the last 15 days and that
the tenant may have the right to stay in the property for longer than
90 days. The bill would require the Department of Consumer Affairs
to make translations of the notice available, as described above.
The bill would provide that these changes to the notice would
become operative on March 1, 2013, or 60 days following the issuance
of an amend ed notice translation by the Department of
Consumer Affairs Internet Web site, whichever date is later.
The bill would extend the operation of these provisions indefinitely.
By extending the operation of provisions establishing a crime,
this bill would impose a state-mandated local program.
(2) Existing law provides that, in an unlawful detainer action, if
an owner or owner's agent has obtained service of a prejudgment
claim of right to possession, as specified, no occupant of the
premises, whether or not that occupant is named in the judgment for
possession, may object to the enforcement of the judgment, as
specified.
This bill would provide that those provisions do not limit the
right of a tenant, subtenant, or occupant to file a prejudgment claim
of right of possession or to object to enforcement of a judgment for
possession, regardless of whether the tenant, subtenant, or occupant
was served with a prejudgment claim of right to possession, as
specified, in the case of an unlawful detainer arising out of, among
other circumstances, a foreclosure sale.
Existing
(3) Existing law, until January
1, 2013, requires a tenant or subtenant in possession of a rental
housing unit at the time that property is sold in foreclosure to be
provided 60 days' written notice to quit before the tenant or
subtenant may be removed from the property, as specified.
This bill would instead require a tenant or subtenant in
possession of a rental housing unit under a month-to-month lease at
the time that property is sold in foreclosure to be provided 90 days'
written notice to quit before the tenant or subtenant may be removed
from the property. The bill would provide tenants or subtenants
holding possession under a residential lease with the right to
possession until the end of the lease term unless the new owner
will occupy the property as a primary residence or unless the lease
was signed within the last 15 days. The bill would require a
residential lease that is entered into 75 days or more after a notice
of default against the property has been recorded to contain a
notice to advise the potential tenant that the foreclosure process
has begun on the property, and that the property may be sold, which
will terminate the lease . The bill would also extend the
operation of these provisions indefinitely.
The
(4) 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 committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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
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 90-day eviction notice. You may have a right to stay
in your home for longer than 90 days. If you have a lease, the
new owner must honor the lease unless the new owner will occupy
the property as a primary residence or unless the lease was signed
within the last 15 days . You may have the right to
stay in your home for longer than 90 days. Also, in
some cases and in some cities with a "just cause for eviction" law,
you may not have to move at all. You may wish to contact a
lawyer or your local legal aid office or housing counseling agency to
discuss any rights you may have." 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) The Department of Consumer Affairs 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) The amendments made to subdivision (a), by the act which added
this subdivision regarding the obligation to provide the notice set
forth in that subdivision in the languages required by Section 1632
shall become operative on March 1, 2013, or 60 days following the
issuance of an amended notice translation by the Department of
Consumer Affairs, whichever occurs later.
SEC. 2. Section 415.46 of the Code of
Civil Procedure is amended to read:
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. 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.
(c) (1) When serving the summons and
complaint upon a tenant and subtenant, if any, the marshal, sheriff,
or registered process server 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
(2) 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 give
actual notice to that occupant, and (3) sending
the same addressed to that occupant by first-class mail.
In
(3) 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 first-class mail.
The
(4) 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) (1) 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 not such occupant is named in the judgment for
possession, may object to the enforcement of that judgment as
prescribed in Section 1174.3.
(2) Paragraph (1) shall not limit the right of any tenant,
subtenant, or occupant of the property to file a prejudgment claim of
right of possession pursuant to Section 1174.25 at any time before
judgment, or to object to enforcement of a judgment for possession as
prescribed in Section 1174.3, whether or not the tenant, subtenant,
or occupant was served with a prejudgment claim of right to
possession, when the judgment for possession arises from an action
for unlawful detainer pursuant to Section 1161a.
(f) The prejudgment claim of right to possession shall be made on
the following form: GRAPHIC INSERT HERE: SEE PRINTED VERSION OF THE
BILL]
SEC. 2. SEC. 3. 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 under a month-to-month lease
at the time the property is sold in foreclosure shall be given 90
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. Tenants
(b) (1) Tenants
or subtenants holding possession under a residential lease
of a rental housing unit at the time that the property is sold at
foreclosure shall have the right to possession until the end of
the lease term.
(2) Paragraph (1) shall not apply if a new owner will occupy the
unit as a primary residence or if the lease was entered into within
15 days prior to the posting of the notice of sale pursuant to
Section 2924f, provided, however, that in either case the new owner
shall provide the notice described in subdivision (a).
(3) Every residential lease entered into 75 days or more after the
recording of a notice of default for the property shall include the
following notice in English and the languages described in Section
1632:
Foreclosure proceedings have begun on this property, which may
affect your right to continue to live in this property if you sign
this lease. This property may be sold at a foreclosure sale in as
soon as 20 days, which will terminate this lease. If you rent this
property, the new owner may evict you after a 90-day eviction notice.
In some cities with a "just cause for eviction" law, you may not
have to move.
(b)
(c) This section shall not apply if any party to the
note remains in the property as a tenant, subtenant, or occupant.
(d) This section shall not preempt any local ordinance and is in
addition to any other rights and remedies available to tenants and
owners as provided by federal, state, and local law.
SEC. 3. SEC. 4. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B 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 XIII
B of the California Constitution.