As most landlords are aware, California has had laws in place for over a decade to protect victims of domestic violence, sexual assault, stalking, elder or adult dependent abuse (added in 2013) and human trafficking (added in 2014). Residents who are victims of one of these crimes are able to break their lease without penalty. In 2021, through the passage of SB 1190 (which has amended Civil Code Section 1946.7), California expanded protections to include additional crimes as follows:
(1) a crime that caused bodily injury or death
(2) a crime involving the display or use of a deadly weapon
(3) a crime that included force or threat of force against the victim
Under previous domestic violence laws, the victim of the crime had to be a current resident of the property in order to be able to break the lease and move without penalty. However, now under SB 1190, in order to be eligible for protections, the victim can be a resident or the “immediate family member” of the resident, which is defined as the parent/stepparent, spouse, child/stepchild/ child-in-law, sibling of a resident, or any person who was living in the unit when the crime occurred with a relationship “substantially similar” to that of a family member. For example, if you have a resident whose mother lives out of state and who was the victim of domestic violence, a crime that involved bodily injury or death, or any of the other crimes listed above, your resident (who was not the victim) would be able to break the lease without penalty and move from the premises.
Termination of Tenancy
In order for a resident to be able to terminate the tenancy, the resident must notify the landlord that the resident, household member, or “immediate family member” who resides elsewhere, was a victim of domestic violence, sexual assault, stalking, abuse of an elder or a dependent adult, human trafficking, a crime that caused bodily injury or death, involved the use of a deadly weapon or the use/threat of force, and that the resident intends to terminate the tenancy as a result.
The landlord can require the tenant to provide verification that the resident, household member, or immediate family member was a victim of a covered crime. Verification includes:
(1) a copy of a temporary restraining order or other protective order issued by a court that protects the victim from further domestic violence, sexual assault, stalking, human trafficking or abuse of an elder or a dependent adult; or
(2) a copy of a written police report stating that the resident, household member, or immediate family member reported being a victim of domestic violence, stalking, sexual assault, human trafficking, abuse of an elder or a dependent adult, or any other covered crime, or
(3) documentation from a qualified third party which states that the resident or household member, or immediate family member is seeking assistance for physical or mental injuries or abuse resulting from any of the qualifying crimes.
Civil Code § 1946.7 states that a “qualified third party” must be a physician, surgeon, registered nurse, psychiatrist, psychologist, licensed clinical social worker, licensed marriage and family therapist or licensed professional clinical counselor. Alternatively, a domestic violence or sexual assault counselor or human trafficking case worker, or a violent crime victim advocate can sign the documentation but only if the documentation displays the letterhead of the office, hospital, institution, center or organization that engages or employs the counselor, caseworker or advocate. Civil Code § 1946.7 also sets forth what must be contained in the statement from the qualified third party.
Under SB 1190, the resident can also provide “any other form of verification that reasonably verifies that the crime occurred.”
If the victim of the crime is a non-resident immediate family member, and if the victim did not live in the premises when the crime occurred, and if the crime took place more than 1000 feet from the premises, the landlord can also require the resident to provide a written statement which includes the following information:
- an immediate family member was the victim of a qualifying crime
- the resident intends to relocate due to the incident
- the resident is relocating to increase the safety, physical, emotional, or psychologicalwell-being or financial security of the victimThe notice to terminate must be given to the landlord within 180 days of the date when the police report was made, or the restraining order or other protective order was issued by the court. There is no requirement in the law that any charges be filed against the perpetrator or that the perpetrator be convicted of any crime in order for the victim to have the right to terminate the lease.Once the notice is given to the landlord, the resident remains liable for rent for the next 14 days, after which time all of the resident’s obligations under the lease are terminated. The remaining residents (if any) continue to be fully responsible under the lease.
The law prohibits a landlord from disclosing any information provided by a resident pursuant to Civil Code § 1946.7 to any third party unless (a) the resident consents in writing to the disclosure; or (b) the disclosure is required by law or court order.
Changing the Locks for Domestic Violence Victims
The law requires a landlord to change the locks within 24 hours of a protected tenant’s request. The landlord can require verification (restraining order, police report, etc.) that the tenant is a victim of domestic violence. If the perpetrator is a lease holder, however, the landlord can only change the locks if the protected tenant has obtained a restraining order with a move-out order that excludes the perpetrator/tenant from the residence. In such instance, the landlord cannot be held liable to the perpetrator for changing the locks even though the perpetrator is also a tenant. Moreover, the perpetrator remains financially liable under any existing lease. If a landlord fails or refuses to change the locks under either of the above circumstances, the protected tenant has the right to change the locks and must provide the landlord with a key to the new lock.
Terminating Tenancy by Landlord
Code of Civil Procedure 1161.3 also prohibits a landlord from terminating a tenancy or refusing to renew a lease based on an act of domestic violence, stalking, sexual assault, human trafficking or elder abuse against a protected tenant or a protected tenant’s household member. The act must be documented via a police report, restraining order, emergency protective order, or other verification from a qualified third party and the perpetrator must not be a tenant in the same unit. However, the landlord may terminate the tenancy of a protected tenant if the protected tenant has allowed the perpetrator back into the unit or the landlord reasonably believes that the perpetrator’s presence poses a physical threat to others or poses a threat to a tenant’s right to quiet enjoyment. In either of these instances, the landlord must have given the resident a 3-Day Notice to Cure the violation before taking steps to terminate the tenancy. Landlords should also keep in mind that it is a potential defense to an unlawful detainer that the tenant is being evicted because he/she is a victim of domestic violence.
Right to Summon Law Enforcement/Emergency Assistance
Effective January 1, 2019, AB 2413 (which added Civil Code § 1946.8 and amended Code of Civil Procedure 1161.3 and Government Code § 53165) declares void, as contrary to public policy, a provision in a lease agreement that limits or prohibits a tenant’s right to summon law enforcement or emergency assistance if the tenant believes that law enforcement or emergency assistance is necessary. AB 2413 also prohibits a government agency from imposing fines on a landlord or a tenant for repeatedly calling emergency services or the police for assistance. A waiver of these provisions is contrary to public policy and is void and unenforceable.
Security Deposit Disposition
If the victim has moved out pursuant to Civil Code § 1946.7, the security deposit still stays with the unit until it has been vacated by all remaining residents. The law doesn’t address what to do if a refund of the deposit is owed. Normally, if multiple residents vacate a unit and a refund of the deposit is due, you would put the names of all the residents on one check and let them work out how to divide it up unless you have been given written instructions (signed by all residents) on how to divide it up. In a domestic violence situation, however, there could be issues with doing so. By putting the victim and the perpetrators names on one check, you are, in effect, forcing the victim to have contact with the perpetrator in order to receive the security deposit refund. An alternative is to divide the refund and send a check for each person’s “share” directly to him or her. Because the law doesn’t specifically address this issue, how to handle the refund is a risk-management decision for the owner or the company to make.
Violence Against Women Act
In addition to the protections afforded by the state, the federal Violence Against Women Act (“VAWA”), which was enacted in 1994 and reauthorized in 2005 and 2013, prohibits denial of admission to or assistance under, termination from participation in or eviction (under most circumstances) of victims of domestic violence, sexual assault or stalking from many affordable housing programs, including project based section 8, USDA-RD and tax credit.
VAWA provides that an incident of actual or threated domestic violence, dating violence, sexual assault or stalking cannot be construed as a serious or repeated violation of the lease or good cause for terminating the assistance, tenancy, or occupancy rights to housing. In addition, the prohibition against eviction exists even if the perpetrator continues to come onto the property and cause disturbances for other residents and even if there is criminal activity directly relating to domestic violence, dating violence, sexual assault or stalking that is engaged in by a member of the household or any guest or other person under the control of the tenant if the tenant or other person associated with the tenant is a victim or threatened victim of domestic violence, dating violence, sexual assault or stalking.
For tenancies subject to VAWA, a landlord can only terminate a victim’s tenancy where it can be demonstrated that an actual or imminent threat exists to other tenants or individuals employed at or providing services to the property and that the threat can only be removed by evicting the victim.
Possible Discrimination Issues
Domestic violence can also raise potential fair housing issues. There have been a number of cases in recent years in which policies that resulted in automatic eviction of both the perpetrator and the victim of domestic violence have been found to be discriminatory based on sex since statistics show that the majority of domestic violence victims are women and policies that result in eviction of both the victim and the perpetrator have a “disparate impact” or discriminatory effect on women.
This article is for general information purposes only. These courtesy notifications are not meant to be exhaustive and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to seek competent legal advice.
© 2021 Kimball, Tirey and St. John LLP