Bill Text: CA AB2847 | 2017-2018 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Commercial real property: tenancy: abandonment.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2018-07-16 - Chaptered by Secretary of State - Chapter 104, Statutes of 2018. [AB2847 Detail]

Download: California-2017-AB2847-Amended.html

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Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 2847

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Introduced by Assembly Member Rubio

February 16, 2018

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An act to amend Section 2929.3 of Sections 1945, 1946, and 1951.3 of, and to add Section 1951.35 to, the Civil Code, relating to mortgages and deeds of trust. real property.

LEGISLATIVE COUNSEL'S DIGEST

AB 2847, as amended, Rubio. Mortgages and deeds of trust. Commercial real property: tenancy: abandonment.

Existing law provides that if a lessee of real property remains in possession after the expiration of the hiring and the lessor accepts rent from the lessee, the parties are presumed to have renewed the hiring on the same terms and for the same amount of time.

This bill would provide that if a lessee of commercial real property remains in possession after the expiration of the hiring, the lessor’s acceptance of rent from the lessee does not renew the hiring, but instead only mitigates any damage that the lessor may incur by reason of the lessee’s failure to leave on time.

Existing law provides that real property shall be deemed abandoned by a lessee and the lease shall terminate if the lessor gives notice of belief of abandonment, and authorizes a notice of belief of abandonment to be given only where rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. Existing law authorizes a notice of belief of abandonment to be served personally or mailed.

This bill would, for commercial real property, authorize notice of belief of abandonment to be given where rent on the property has been due and unpaid for at least the number of days required for the lessee to declare a rent default under the terms of the lease. The bill would authorize the notice of belief of abandonment of commercial real property to be sent by an overnight courier service. The bill would make conforming changes.

Existing law requires a legal owner to 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 and authorizes a governmental entity to impose a civil fine of up to $1,000 per day for a violation of this provision. Existing law prohibits a governmental entity from imposing fines on a legal owner under both this provision and a local ordinance.

This bill would make nonsubstantive changes to these provisions.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

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

SECTION 1.

 Section 1945 of the Civil Code is amended to read:

1945.

 If (a) Except as specified in subdivision (b), if a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the lessee, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year.

(b) If a lessee of commercial real property remains in possession thereof after the expiration of the hiring, the lessor’s acceptance of rent from the lessee does not renew the hiring but instead only mitigates any damage that the lessor may incur by reason of the lessee’s failure to leave on time. For purposes of this section, “commercial real property” has the same meaning as that term is defined in subdivision (d) of Section 1954.26.

SEC. 2.

 Section 1946 of the Civil Code is amended to read:

1946.

 (a) A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in subdivision (a) of Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. In addition, the lessee may give the notice by sending a copy by certified or registered mail addressed to the agent of the lessor to whom the lessee has paid the rent for the month prior to the date of the notice or by delivering a copy to the agent personally. The notice given by the lessor shall also contain, in substantially the same form, the following:

“State law permits former tenants to reclaim abandoned personal property left at the former address of the tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs will be lower the sooner you contact your former landlord after being notified that property belonging to you was left behind after you moved out.”

(b) This section does not apply to commercial real property.

SEC. 3.

 Section 1951.3 of the Civil Code is amended to read:

1951.3.

 (a) This section applies to real property other than commercial real property, as defined in subdivision (d) of Section 1954.26.

(a)

(b) Real property shall be deemed abandoned by the lessee, within the meaning of Section 1951.2, and the lease shall terminate if the lessor gives written notice of his belief of abandonment as provided in this section and the lessee fails to give the lessor written notice, prior to the date of termination specified in the lessor’s notice, stating that he the lessee does not intend to abandon the real property and stating an address at which the lessee may be served by certified mail in any action for unlawful detainer of the real property.

(b)

(c) The lessor may give a notice of belief of abandonment to the lessee pursuant to this section only where the rent on the property has been due and unpaid for at least 14 consecutive days and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the lessor’s notice and shall be not less than 15 days after the notice is served personally or, if mailed, not less than 18 days after the notice is deposited in the mail.

(c)

(d) The lessor’s notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known address and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, any other address known to the lessor where the lessee may reasonably be expected to receive the notice.

(d)

(e) The notice of belief of abandonment shall be in substantially the following form:

Notice of Belief of Abandonment

To:  _____ (Name of lessee/tenant) _____

_____ (Address of lessee/tenant) _____

This notice is given pursuant to Section 1951.3 of the Civil Code concerning the real property leased by you at ________ (state location of the property by address or other sufficient description). The rent on this property has been due and unpaid for 14 consecutive days and the lessor/landlord believes that you have abandoned the property.

The real property will be deemed abandoned within the meaning of Section 1951.2 of the Civil Code and your lease will terminate on ________ (here insert a date not less than 15 days after this notice is served personally or, if mailed, not less than 18 days after this notice is deposited in the mail) unless before such that date the under signed lessor/landlord receives at the address indicated below a written notice from you stating both of the following:

(1) Your intent not to abandon the real property.

(2) An address at which you may be served by certified mail in any action for unlawful detainer of the real property.

You are required to pay the rent due and unpaid on this real property as required by the lease, and your failure to do so can lead to a court proceeding against you.

Dated: _______ _____  (Signature of lessor/landlord)

  (Type or print name of lessor/landlord) 

(Address to which lessee/tenant is to send notice)

(e)

(f) The real property shall not be deemed to be abandoned pursuant to this section if the lessee proves any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for 14 consecutive days.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

(3) Prior to Before the date specified in the lessor’s notice, the lessee gave written notice to the lessor stating his or her intent not to abandon the real property and stating an address at which he or she may be served by certified mail in any action for unlawful detainer of the real property.

(4) During the period commencing beginning 14 days before the time the notice of belief of abandonment was given and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(f)

(g) Nothing in this section precludes the lessor or the lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Section 1951.2.

(g)

(h) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Sections 1161 and 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. The giving of the notice provided by this section does not satisfy the requirements of Sections 1161 and 1162 of the Code of Civil Procedure.

SEC. 4.

 Section 1951.35 is added to the Civil Code, immediately following Section 1951.3, to read:

1951.35.

 (a) This section applies only to commercial real property, as defined in subdivision (d) of Section 1954.26.

(b) Commercial real property shall be deemed abandoned by the lessee within the meaning of Section 1951.2 and the lease shall terminate if the lessor gives written notice of belief of abandonment pursuant to subdivision (c) and, prior to the date of termination specified in the lessor’s notice of belief of abandonment, the lessee fails to give the lessor written notice stating that the lessee does not intend to abandon the commercial real property and provides an address at which the lessee may be served by certified mail in an action for unlawful detainer of real property.

(c) The lessor may give notice of belief of abandonment pursuant to this section only if the rent on the property has been due and unpaid for at least the number of days required for the lessor to declare a rent default under the terms of the lease and the lessor reasonably believes that the lessee has abandoned the property. The date of termination of the lease shall be specified in the notice and shall be not less than 15 days after the notice is served personally, sent to the lessee by an overnight courier service, or deposited in the mail.

(d) The lessor’s notice of belief of abandonment shall be personally delivered to the lessee, sent by a recognized overnight carrier, or sent by first-class mail, postage prepaid, to the lessee at the lessee’s last known address, and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to any other address known to the lessor where the lessee may reasonably be expected to receive the notice.

(e) The notice of belief of abandonment shall be in substantially the following form:

Notice of Belief of Abandonment

To:  _____ (Name of lessee/tenant) _____

_____ (Address of lessee/tenant) _____

This notice is given pursuant to Section 1951.35 of the Civil Code concerning the real property leased by you at ________ (state location of the property by address or other sufficient description). The rent on this property has been due and unpaid for the number of days necessary to declare a rent default under your lease and the lessor/landlord believes that you have abandoned the property.

The real property will be deemed abandoned within the meaning of Section 1951.2 of the Civil Code and your lease will terminate on ________ (here insert a date not less than 15 days after this notice is served personally, sent by overnight courier service, or deposited in the mail) unless before that date the lessor/landlord receives at the address below a written notice from you stating both of the following:

(1) Your intent not to abandon the real property.

(2) An address at which you may be served by certified mail in any action for unlawful detainer of the real property.

You are required to pay the rent due and unpaid on this real property as required by the lease, and your failure to do so can lead to a court proceeding against you.

Dated: _______ _____  (Signature of lessor/landlord)

  (Type or print name of lessor/landlord) 

(Address to which lessee/tenant is to send notice)

(f) The real property shall not be deemed to be abandoned pursuant to this section if the lessee provides any of the following:

(1) At the time the notice of belief of abandonment was given, the rent was not due and unpaid for the time period necessary to declare a rent default under the lessee’s lease.

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, by itself, justify a finding that the lessor did not believe that the lessee had abandoned the real property.

(3) Before the date specified in the lessor’s notice, the lessee gave written notice to the lessor stating the lessee’s intent not to abandon the real property and provided an address at which the lessee may be served by certified mail in an action for unlawful detainer of real property.

(4) During the period beginning at the start of the applicable rent default period and ending on the date the lease would have terminated pursuant to the notice, the lessee paid to the lessor all or a portion of the rent due and unpaid on the real property.

(g) Nothing in this section precludes the lessor or the lessee from otherwise proving that the real property has been abandoned by the lessee within the meaning of Section 1951.2.

(h) Nothing in this section precludes the lessor from serving a notice requiring the lessee to pay rent or quit as provided in Section 1161 or 1162 of the Code of Civil Procedure at any time permitted by those sections, or affects the time and manner of giving any other notice required or permitted by law. Giving notice pursuant to this section does not satisfy the requirements of Section 1161 or 1162 of the Code of Civil Procedure.

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)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, including, but not limited to, legal abatement proceedings.

(e)A governmental entity shall 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.