Registered Sex Offenders in Rental Housing IBP
Registered Sex Offenders in Rental Housing Subject to Locally Eviction Control OrdinancesMay 8, 2007Property Management Committee
Legislative CommitteeThe following is for study only and has NOT been approved by the Property Management Committee, Legislative or Executive Committees or the Board of Directors.Issue:
Should C.A.R. sponsor legislation to requirelocal jurisdictions with “just cause eviction” rules to permit landlords subject to those rules to evict a registered sex offender in order to protect persons at risk.Action:
Optional, recommended by Megan’s Law Working GroupOptions:
1. Sponsor legislation to require local jurisdictions with “just cause eviction” rules to permit landlords subject to those rules to evict a registered sex offenderto protect persons at risk.2. Support legislation outlined in Option 1.3. Study this issue further, soliciting input from members of this committee and others in the property management/landlord community on the impacts and political viability of this proposed legislative solution.4. Other5. Do nothingStatus/Summary:
At the January 2007 C.A.R. Board of Directors Meetings, the Property Management Committee created a Megan’s Law Working Group to explore the issues surrounding Megan’s Law and landlord liability to potentially develop a new recommended policy for C.A.R. The Working Group met via conference call on March 9, 2007. The Work Group recommends that C.A.R. sponsor legislation to require local governments with “just cause eviction” ordinances to include status as a Registered Sex Offender as a just cause for eviction, if the eviction is to protect a person “at risk” within the meaning of the Penal Code. BackgroundMunicipalities with eviction controls only permit landlords to evict tenants for a “just cause”. Under these ordinances, the landlord must state and prove a valid reason for terminating a tenancy. The list of just causes will vary from city to city, but most include such causes as non-payment of rent, nuisance and illegal activity, damage to the property, illegal holdover, owner move-in, or removal of units from the rental market. Landlords in jurisdictions with eviction controls cannot serve a tenantwith a 30 or 60 day notice to vacate. They must state the reason for eviction and prove it in court.The Property Management Committee has discussed the issues surrounding Megan’s Law over the last several meetings. Committee members have heard innumerable anecdotes from REALTORS® who have become aware that registered sex offenders are living in the rental housing they own or manage. For those who own or manage property in jurisdictions with locally imposed eviction restrictions, they have very little options in dealing with this problem. While those owners/managers in cities with no eviction restrictions can easily remove a tenant who is a registered sex offender by serving them with a 30 or 60-day notice to vacate in order to protect persons “at risk”, that option is not available to those owners/managers subject to local “just cause” eviction rules. C.A.R. sponsored legislation in 1998 to require sellers and landlords to include statutory language in every lease or rental agreement and purchase contracts for residential real property with 1 to 4 units directing prospective buyers or tenants to the Megan’s Law database. Sellers and landlords doing so have no further obligation under law, absent actual knowledge, to inquire about whether neighbors or tenants are registered sex offenders (Civil Code section 2079.10a). C.A.R. has advised all REALTOR® members to rely on the disclosure and not look at or use the Megan’s Law Database to screen prospective applicants. Further, C.A.R. Legal has opined that REALTORS® who own or manage rental property can refuse to rent or evict tenants who are registered sex offenders if they are doing so to protect a person “at risk” (Penal Code section 290.46). However, the term “at risk” is not statutorily defined and no case law exists to determine what constitutes protection of persons “at risk”.Over the past several years, legislation has been sponsored by the California Apartment Association (CAA), the California Housing Council (CHC), and others to address issues of landlord liability and tenant protections from registered sex offenders living in rental housing. CAA’s most recent bill, AB 1197 (Aghazarian) would have created a rebuttable presumptionthat landlords who refuse to rent to or evict registered sex offenders are doing so to protect a person at risk. Unlike other CAA sponsored bills on Megan’s Law, C.A.R. supported AB 1197 because it was consistent with C.A.R. policy and legal opinion that landlords can refuse to rent to or evict registered sex offenders to protect persons at risk. However, the bill failed passage in the Assembly Public Safety Committee. Other CAA sponsored bills on Megan’s Law were opposed by C.A.R. For example, AB 438 (Parra) would have permitted landlords to deny tenancy or evict tenants required to register as sex offenders. C.A.R. opposed this bill because it would have required landlords and their agents to look at the Megan’s Law website to screen tenants in order to receive the liability protections created by this bill. Earlier this year, Assemblyman Richard Alarcon introduced AB 148 which would have permitted landlords to evict or refuse to house registered sex offenders as well as require registered sex offenders on parole to be evenly distributed throughout the state by Assembly district. However, this bill was held without recommendation in the Assembly Public Safety Committee. The 2006 legislation sponsored by CHC would have made clear that renting to a registered sex offender did not create a duty for landlords to use the Megan’s Law website to screen tenants. The bill, AB 2712 (Leno) also stated that a landlord’s use of the Megan’s Law Database was discretionary. The bill was approved by the Legislature but vetoed by the Governor. In his veto message, the Governor stated “this bill would prioritize property-owner liability protection before tenant safety. I cannot support legislation that may compromise the safety of families and children”.The Governor encouraged the Legislature to find a legislative solution that protected both families and property owners.DiscussionLandlords and property managers in jurisdictions with eviction controls have amuch more difficult time removing problem tenants. It is in these cities where the most egregious horror stories of sex offenders living in rental housing come from. For example, one REALTOR® recently became aware that a sex offender was living in his property, which was located in a city with eviction controls. The tenant, knowing he could not be evicted, began to harass his neighbors and the property manager, taunting them with his sex offender status. Other sex offender tenants have tried to force landlords to pay them to move out. Should C.A.R. sponsor legislation that is enacted to mandate cities with just cause eviction ordinances permitlandlords to evict tenants who are registered sex offenders to protect persons at risk, this would provide landlords in these cities with a tool to remove registered sex offenders from their property. However, there are conflicting interpretations of the status of registered sex offenders among those in the landlord community. For example, CAA believes that registered sex offenders may be considered a protected class under the Unruh Civil Rights Act. It is unknown whether this proposed legislation would satisfy CAA’s concerns regarding sex offenders in rental housing. Also, given that most Megan’s Law bills cannot overcome objections raised in legislative policy committees, would this proposal stand a better chance than previous Megan’s Law bills? Many of the new legislators come from local government and are sensitive to issues surrounding local control. While C.A.R. has long standing policy to support local control, C.A.R. also has longstanding policy to oppose rent control and eviction control. This proposed legislation would usurp local control in favor of statewide interjection into the policy powers of cities to enforce eviction rules, which may be politically challenging with this new legislature. Finally, this proposal may not overcome the objections raised in the Governor’s veto message for Assembly Member Leno’s AB 2712, although “protecting persons at risk” is a test more closely aligned with the veto message than previous legislation.
