Residential property: possession by declaration
Current status:
Referred to committee on rules
Referred to committee on public safety
Lead author:
Steve Fox (1672 West Ave J, Ste 210, Lancaster, CA 93534) - (661) 726-5151
Overview:
AB 1513 allows property owners to initiate an extrajudicial eviction of
residential property by submitting a written declaration to law
enforcement. Under current law a property owner has the ability to request
removal of trespassers pursuant to Penal Code section 602(o), and law
enforcement has the discretion to determine if probable cause exists to
remove such occupants.
AB 1513 makes such a removal mandatory thus depriving law enforcement of
their discretion. Under existing law a resident who is not determined to
be a trespasser has the right to challenge any subsequent eviction. AB
1513 deprives residents of their due process rights under state, local,
and Constitutional law to challenge an eviction prior to their removal
from their home.
There is no need for this law because current trespass laws provide
adequate protection to property owners.
Law Proposed by AB 1513:
Sections would be added to the Code of Civil Procedure, to read:
'1160.5. A property owner, or agent of the property owner, may execute the
following "Declaration of Ownership" and file it with the district
attorney of the jurisdiction in which the property is located. The
property owner, or agent of the property owner, shall post the declaration
on the unoccupied residential property listed in the declaration. The
property owner, or the agent of the property owner, may also submit the
declaration to a local law enforcement agency that shall enforce the
declaration as an order for immediate possession of the premises pursuant
to Section 1166a of the Code of Civil Procedure.
1160.6. A property owner, or an agent of the property owner, may execute
the following "Unauthorized Occupant Declaration" and file it with the
district attorney of the jurisdiction in which the property is located.
The property owner, or the agent of the property owner, may also submit
the declaration to a local law enforcement agency that shall enforce the
declaration as an order for immediate possession of the premises pursuant
to Section 1166a of the Code of Civil Procedure.
The Current Law:
Penal Code 602(o) "Refusing or failing to leave land, real property, or
structures belonging to or lawfully occupied by another and not open to
the general public, upon being requested to leave by (1) a peace officer
at the request of owner, the owner's agent, or the person in lawful
possession, and upon being informed by the peace officer that he or she is
acting at the request of the owner, the owner's agent, or the person in
lawful possession, or (2) the owner, the owner, the owner's agent, or the
person in lawful possession. The owner, the owner's agent, or the person
in lawful possession shall make a separate request to the peace officer on
each occasion when the peace officer's assistance in dealing with a
trespass is requested. However, a single request for a peace officer's
assistance may be made to cover a limited period of time not to exceed 30
days and identified by specific dates, during which there is a fire hazard
or the owner, owner's agent, or person in lawful possession is absent from
the premises or property. In addition, a single request for a peace
officer's assistance may be made for a period not to exceed six months
when the premises or property is closed to the public and posted as being
closed."
Analysis:
Adequacy of Current Law: Under current law, a law enforcement officer
can remove a trespasser upon the request of the property owner. Current
law does not mandate that law enforcement remove individuals upon the
request of the owner. Such removal is at the discretion of law
enforcement. If an occupant refuses to vacate the property they are liable
for a misdemeanor. A property owner may make a written request for
enforcement of No Trespassing that is effective for six months. (Penal
Code section 602(o))
Under the US Constitution, a resident of property cannot be removed
without a court order unless there is probable cause. Otherwise a resident
has due process right to defend their possession of the property in a
proper court. (A legal case that cites this is King v. Massarweh, 782 f2d
825.) Because law enforcement officers can be held liable for violations
of the US Constitution, their discretion in enforcement of Penal Code
section 602(o) is necessary to avoid liability lawsuits under King v.
Massarweh for Fourth Amendment violations. However if a property owner
makes a written request for enforcement of no trespassing such a request
would establish probable cause and thus avoid any Constitutional issues.
If a property owner fails to make a written request for enforcement of no
trespassing and law enforcement determines there is insufficient probable
cause for removal then existing law provides property owners with an
alternative remedy. Code of Civil Procedure section 1160 provides for a
summary proceeding to remove trespassers from property. Such a proceeding
requires a 3 day notice before filing a complaint at the courthouse. Five
days after service of the complaint to the occupants at the property, a
default judgment can be made and a 'writ of possession' issued.
Accordingly, an uncontested eviction can occur within 9 days of a property
owner discovering a trespasser in the event that law enforcement decides
not to act.
Changes in Law Proposed by AB 1513:
AB 1513 allows property owners to initiate extrajudicial evictions by
submitting a written declaration to law enforcement.
AB 1513 would mandate that law enforcement must treat a written request by
the property owner for removal of occupants as if it were a court order.
The language of AB 1513 indicates that law enforcement would no longer
have the discretion to determine if probable cause exists. Further, AB
1513 would eliminate an occupant's right to contest their eviction in
court.
AB 1513 eliminates law enforcements discretionary authority to determine
probable cause. AB 1513 eliminates a resident's due process rights to
challenge an eviction in court. AB 1513 also vests in property owners
authority currently exclusive to the courts.
The only limitation on a property owner's ability to evict residents would
be the possibility of prosecution for perjury as provided for in AB 1513.
Hence AB 1513 transfers an unprecedented amount of power to property
owners despite the fact that current law has substantial protections for
property owners against trespassers.
AB 1513 is submitted in order to allow property owners to avoid the slight
inconvenience under existing law of obtaining a court order that is
necessary to balance the needs of property owners against the rights of
residents against improper evictions.
Due Process Rights of Tenants:
The US Ninth Circuit Court has determined that a tenant has a right to due
process prior to removal by law enforcement, pursuant to King v.
Massarweh. However, AB 1513 establishes that a written request for removal
of "unauthorized" occupants must be treated as a court ordered Writ of
Possession, thus allowing for the immediate removal of occupants.
In King v. Massarweh, the owner of the property accused the tenants of
being trespassers, and based upon this law enforcement removed and
arrested the residents. These events took place in California, and the US
Ninth Circuit Court of Appeals determined that the residents had made a
sufficient claim for violation of their Fourth Amendment rights.
Because AB 1513 specifically authorizes evictions similar to that which
occurred in King v. Massarweh, it is in direct conflict with the Fourth
Amendment under Federal law in the state of California.
Liability of Law Enforcement:
Because law enforcement officers can be held personally liable for
violations of the US Constitution, the enforcement of trespass statutes is
at discretion of law enforcement. If a property requests enforcement of no
trespassing under Penal Code section 602(o), the officer may decide not to
remove the residents if there isn't sufficient probable cause to believe
the residents are trespassers.
In King v. Massarweh, the law enforcement officers in that case were
required to answer the allegations of Fourth Amendment violations by the
tenants while the property owner was not held liable because a private
citizen cannot be held liable for violations of the US Constitutions.
By removing law enforcement discretion and mandating that they remove
residents at the request of the property owner, the legislature is placing
law enforcement in a situation where they must choose whether to violate
the law created by AB 1513 or violate the Fourth Amendment to the US
Constitution and face liability under King v. Massarweh.
Further, this burden of potential liability placed on law enforcement is
magnified due to the fact that the property owners making such requests
are not themselves liable for any violations except in the event that they
could be held liable for perjury which is unlikely.
Ineffective Delegation of Judicial Authority:
AB 1513 allows a property owner to submit a written declaration to law
enforcement which requires that law enforcement "enforce the declaration
as an order for immediate possession of the premises pursuant to Section
1166a of the Code of Civil Procedure."
This authorizes property owners to initiate an extrajudicial eviction
without any court process. The written request by the property owner is
treated under AB 1513 as if it were a Writ of Possession issued by a
court.
Such a delegation is improper because although the legislature may expand
or limit the power of the courts, the legislature cannot vest judicial
authority in such a broad and amorphous class of individual as AB 1513
attempts. A writ of possession under Civil Code section 1166a is currently
issued by a court after a judicial proceeding. Such am order must be
executed by law enforcement acting as officers of the court. A failure to
execute such an order by law enforcement can result in such an officer
being held in contempt of court, resulting in a fine of $1,000 and/or
imprisonment for five days. (code of Civil Procedure sections 1209, 1208)
Because AB 1513 creates a power of extrajudicial eviction by property
owners the language requiring law enforcement to treat such a request as
if it were a court order is confusing regarding whether law enforcement
would be subject to punishment under CCP 1209 and 1208 for failure to
comply with AB 1513.
Further, and more importantly, AB 1513 is an improper delegation because
law enforcement normally executing a court order have judiciary immunity
from prosecution if they execute a court order that is unlawful. However,
law enforcement officers are not immune when enforcing legislative
enactments. Hence although AB 1513 purports to give a declaration by a
property owner the same significance as a court order, the legislature is
incapable of immunizing law enforcement officers in the same manner as a
true court order because AB 1513 is still a legislative enactment.
(Supreme Court of Virginia v. Consumers Union, 446 US 719)
The language of AB 1513 allows a property owner's written request for
removal to have the same weight as a court ordered Writ of Execution.
However, the legislature lacks the power to immunize law enforcement from
liability and it is unclear if law enforcement can be compelled to execute
such an eviction in the same manner as a true court order.
It should also be noted that because the property owner would be allowed
under AB 1513 to issue the equivalent of an order for Writ of Execution,
the legislature is delegating to property owners judicial authority where
there is an inherent conflict of interest pursuant to CCP section 170.1.
This is because judges are disqualified from participating in an eviction
proceeding if they have a financial stake in the outcome.
Accordingly, AB 1513 is an improper delegation of judicial authority to a
property owner, it is unclear how law enforcement and the courts would
interpret such a law.
Vagueness:
Because AB 1513 attempts to transfer authority of the courts to property
owners it is unclear if such a delegation would be effective and what the
results would be.
Although the language of AB 1513 mandates that local law enforcement
remove occupants upon written request by property owners, it is unclear if
such a mandate has any of the same consequences as failure to execute a
court order under CCP 1209 and 1208. Accordingly, it is unclear if law
enforcement still retains de facto discretion to ignore such a request due
to improper delegation.
It is unclear if a law enforcement officer could be held liable by
property owners if they decide not to remove residents from their homes.
Could a property owner sue a law enforcement officer under CCP 1209 based
on the language of AB 1513? If a law enforcement officer fails to comply
with such a request may the property owner seek injunctive relief to
remove occupants without including the occupants in the proceedings?
AB 1513 is also unclear regarding a resident's rights if a property owner
improperly evicts. It appears that the property owner's only liability is
based upon perjury. Accordingly, even a resident improperly evicted by a
property owner making a false statement would have no recourse if the
property owner's false statement was made due to a mistake, lack of
knowledge, or even lack of understanding regarding the law. Because of
this, AB 1513 places a premium on the ignorance of property owners who can
evict residents at will as long as they subjectively believe they have the
right to do so.
AB 1513 is sufficiently vague that is provides unacceptable opportunity
for property owners to evict residents without a court process. Because
the only limits are the slight possibility of a perjury conviction, it is
unlikely that AB 1513 would become the preferred method of evicting
residents from their homes.
Arbitrariness:
Because AB 1513 provides for extrajudicial evictions at the request of the
property owner, it makes such evictions available at their choice. Due to
the open nature of AB 1513, it provides a manner in which property owners
can circumvent existing legal structures protecting tenants.
AB 1513 will make it unclear what rights tenants have against such
eviction or whether such an eviction is likely to be used against them.
Nullification of Local Ordinances Protecting Tenants:
Many local jurisdictions have stronger protections for tenants than state
law. In some jurisdictions, there are Just Cause Eviction ordinances that
allow tenants to remain in their homes indefinitely often with rent
controls in place. In such jurisdictions a property owner can only remove
a tenant if there is a violation of the lease or law allowing for an
eviction. However, such protections must be invoked by a tenant before a
local rent board or the court which the Unlawful Detainer or Forcible
Detainer has been filed prior to a court ordered eviction.
Because AB 1513 instructs law enforcement to treat a written request by a
property owner as a court ordered Writ of Possession then AB 1513 provides
a means to circumvent these local ordinances enacted to protect tenants.
In such areas a property owner's only method of removing such tenants may
be by asserting that the tenants are "unauthorized" as provided for by AB
1513. The only recourse of the tenants would be to seek a conviction
against the property owner for perjury. In such a situation where a
property owner could potentially make large profits such as in San
Francisco the risk of a perjury conviction may be minor compared to the
profit from increased rents or sale of a vacant property. Due to open
ended nature of AB 1513 it will be likely that property owners will use
this extrajudicial eviction in order to remove otherwise protected
tenants.
