BILL NUMBER: AB 985 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 11, 2009
PASSED THE ASSEMBLY SEPTEMBER 12, 2009
AMENDED IN SENATE SEPTEMBER 10, 2009
AMENDED IN SENATE SEPTEMBER 4, 2009
AMENDED IN SENATE SEPTEMBER 2, 2009
AMENDED IN SENATE JULY 9, 2009
AMENDED IN SENATE JULY 7, 2009
AMENDED IN SENATE JULY 1, 2009
AMENDED IN SENATE JUNE 9, 2009
INTRODUCED BY Assembly Member De La Torre
(Coauthor: Assembly Member Krekorian)
FEBRUARY 27, 2009
An act to amend Sections 12956.1 and 12956.2 of, to add Section
27361.05 to, and to add Article 3.6 (commencing with Section 27310)
to Chapter 6 of Part 3 of Division 2 of Title 3 of, the Government
Code, relating to real property.
LEGISLATIVE COUNSEL'S DIGEST
AB 985, De La Torre. Real property: discriminatory restrictions.
(1) Existing law prohibits discrimination in housing through
restrictive covenants based on race, color, religion, sex, sexual
orientation, familial status, marital status, disability, national
origin, source of income, or ancestry and provides that
discrimination in housing through a restrictive covenant includes the
existence of a restrictive covenant regardless of whether
accompanied by a statement that the covenant is repealed or void.
Existing law similarly declares that any provision in any deed of
real property in California that purports to restrict the right of
any person to sell, lease, rent, use, or occupy the property to
persons having any specified characteristic, including, but not
limited to, race, color, religion, sex, marital status, national
origin, ancestry, familial status, disability, source of income, or
sexual orientation, by providing for payment of a penalty,
forfeiture, reverter, or otherwise, is void, except as specified.
Existing law provides that any deed or other written instrument
that relates to title to real property, or any written covenant,
condition, or restriction annexed or made a part of, by reference or
otherwise, any deed or instrument, that contains any provision that
purports to forbid, restrict, or condition the right of any person or
persons to sell, buy, lease, rent, use, or occupy the property on
account of any of the above-specified characteristics, shall be
deemed to be revised to omit that provision.
Existing law also authorizes a person who holds an ownership
interest of record in property that he or she believes is the subject
of an unlawfully restrictive covenant based on race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, national origin, source of income, or ancestry, to record
a Restrictive Covenant Modification, which would include a copy of
the original document with the illegal language stricken. Before
recording the modification document, the county recorder is required
to submit the modification document and the original document to the
county counsel who is required to determine whether the original
document contains an unlawful restriction based on race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, national origin, source of income, or ancestry. The
county recorder is required to make Restrictive Covenant Modification
forms available to the public. Under existing law, a county
recorder, title insurance company, escrow company, real estate
broker, real estate agent, or association that provides a copy of a
declaration, governing document, or deed to any person is required to
place a cover page or stamp on the previously recorded document
stating that if the document contains an unlawful restriction, that
restriction is void and may be removed by recording a Restrictive
Covenant Modification.
This bill would require a county recorder, title insurance
company, escrow company, real estate broker, real estate agent, or
association that provides a copy of a declaration, governing
document, or deed to a person who holds an ownership interest of
record in property to also provide a Restrictive Covenant
Modification form with specified procedural information to that
person. The bill would authorize a title insurance company, escrow
company, real estate broker, real estate agent, or other person to
record a Restrictive Covenant Modification, in addition to the owner
of record, and would require the requester to provide a return
address in order for the county recorder to notify the interested
party of the action taken by county counsel on the respective
property. The bill would require the county counsel to make a
determination whether the language identified by the requester in the
original document contains an unlawful restriction within a
reasonable period of time, not to exceed 3 months, as specified, and
would authorize the county counsel to compile a list of phrases
identified as unlawfully restrictive language for the purpose of
expediting that determination. The bill would require the county
recorder to make Restrictive Covenant Modification forms available to
the public onsite in an appropriately designated area, and would
permit multiple submissions on behalf of different homes and for
processing homes in batches with respect to a modification document
that affects multiple homes or lots. These new duties would impose a
state-mandated local program on the county recorder and county
counsel.
(2) Existing law requires the recorder of each county to establish
a social security number truncation program in order to create a
public record version of each official record so that the public
record is in an electronic format and is an exact copy of the
official record, except that any social security number contained in
the official record shall be truncated by redacting the first 5
digits of that number. These provisions apply to any document
recorded since January 1, 1980, as specified. If a public record
version of an official record exists, and upon a request of any
person to inspect, copy, or to otherwise publicly disclose that
record, the recorder shall make available only the public record
version of that record, and publicly disclose the official record
only in response to a subpoena or court order. The county recorder
may, upon authorization of the board of supervisors, charge an
additional fee of $1 for recording the first page of each document to
be used to implement a social security number truncation program
pursuant to these provisions. The county auditor is required, at the
request of the county board of supervisors, to verify that these fees
are used only for the purpose of the program.
This bill would require the recorder of each county to create a
public record version of each official record for which a Restrictive
Covenant Modification is recorded on or after January 1, 2010, so
that the public record is in an electronic format and is an exact
copy of the official record, except that any unlawfully restrictive
covenant contained in the official record shall be redacted. The bill
would specify that an electronic version of the unredacted record,
for which a Restrictive Covenant Modification is recorded, would
become the official record for the purposes of these provisions. If a
public record version of an official record exists, and upon request
of any person to inspect, copy, or to otherwise publicly disclose
that record, the recorder shall make available only the public record
version of that record, and publicly disclose the official record
only in response to a subpoena or court order. The bill would provide
that the county recorder shall not incur any liability for a
procedural, clerical, or administrative error in the recording of a
modification document or any other activity related to the redaction
of an unlawfully restrictive covenant pursuant to these provisions.
The bill would also exempt the county counsel from liability, as
specified. The bill would require the county recorder to charge an
initial fee of not more than $2, as specified, for recording the
first page of each property-related document to be used by the county
for the sole purpose of performing activities related to the
redaction of an unlawfully restrictive covenant pursuant to these
provisions or those described in (1) above. The bill would require
the board of supervisors to adjust the fee to a whole dollar amount
reasonably sufficient to recover costs. By creating new duties for
county recorders, this bill would impose a state-mandated local
program.
(3) This bill would make legislative findings that any limitation
on the public's right of access to the writings of public officials
and agencies made by its provisions is necessary to protect against
the risk of discrimination.
(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 the Legislature finds there is no
mandate contained in the bill that will result in costs incurred by a
local agency or school district for a new program or higher level of
service which require reimbursement pursuant to these constitutional
and statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12956.1 of the Government Code is amended to
read:
12956.1. (a) As used in this section, "association," "governing
documents," and "declaration" have the same meanings as set forth in
Section 1351 of the Civil Code.
(b) (1) A county recorder, title insurance company, escrow
company, real estate broker, real estate agent, or association that
provides a copy of a declaration, governing document, or deed to any
person shall place a cover page or stamp on the first page of the
previously recorded document or documents stating, in at least
14-point boldface type, the following:
"If this document contains any restriction based on race, color,
religion, sex, sexual orientation, familial status, marital status,
disability, national origin, source of income as defined in
subdivision (p) of Section 12955, or ancestry, that restriction
violates state and federal fair housing laws and is void, and may be
removed pursuant to Section 12956.2 of the Government Code. Lawful
restrictions under state and federal law on the age of occupants in
senior housing or housing for older persons shall not be construed as
restrictions based on familial status."
(2) The requirements set forth in paragraph (1) shall not apply to
documents being submitted for recordation to a county recorder.
(3) A county recorder, title insurance company, escrow company,
real estate broker, real estate agent, or association that provides a
copy of a declaration, governing document, or deed directly to a
person who holds an ownership interest of record in property shall
also provide a Restrictive Covenant Modification form with procedural
information, as defined subdivision (b) of Section 27310, along with
the document.
(c) Any person who records a document for the express purpose of
adding a racially restrictive covenant is guilty of a misdemeanor.
The county recorder shall not incur any liability for recording the
document. Notwithstanding any other provision of law, a prosecution
for a violation of this subdivision shall commence within three years
after the discovery of the recording of the document.
SEC. 2. Section 12956.2 of the Government Code is amended to read:
12956.2. (a) A person who holds an ownership interest of record
in property that he or she believes is the subject of an unlawfully
restrictive covenant in violation of subdivision (l) of Section 12955
may record a document titled Restrictive Covenant Modification. A
title insurance company, escrow company, real estate broker, real
estate agent, or other person also may record the modification
document provided for in this section. The county recorder may choose
to waive the fee prescribed for recording and indexing instruments
pursuant to Section 27361 in the case of the modification document.
The modification document shall include a complete copy of the
original document containing the unlawfully restrictive language with
the unlawfully restrictive language stricken.
(b) Before recording the modification document, the county
recorder shall submit the modification document and the original
document to the county counsel who shall determine whether the
language identified by the requester in the original document
contains an unlawful restriction based on race, color, religion, sex,
sexual orientation, familial status, marital status, disability,
national origin, source of income as defined in subdivision (p) of
Section 12955, or ancestry. The county counsel shall return the
documents and inform the county recorder of its determination within
a reasonable period of time, not to exceed three months unless
extraordinary circumstances apply. The county recorder shall refuse
to record the modification document if the county counsel finds that
the original document does not contain an unlawful restriction as
specified in this subdivision. For the purpose of expediting the
determination required pursuant to this subdivision, the county
counsel may compile a list of phrases identified as unlawfully
restrictive language.
(c) If a title insurance company, escrow agent, realtor, or other
person requests to record a modification document, the requester
shall provide a return address in order for the county recorder to
notify the interested party of the action taken by county counsel on
the respective property. The notice required pursuant to this
subdivision may be made on a postcard mailed by first-class mail.
(d) The modification document shall be indexed in the same manner
as the original document being modified. It shall contain a recording
reference to the original document in the form of a book and page or
instrument number, and date of the recording.
(e) Subject to covenants, conditions, and restrictions that were
recorded after the recording of the original document that contains
the unlawfully restrictive language and subject to covenants,
conditions, and restrictions that will be recorded after the
Restrictive Covenant Modification, the restrictions in the
Restrictive Covenant Modification, once recorded, are the only
restrictions having effect on the property. The effective date of the
terms and conditions of the modification document shall be the same
as the effective date of the original document.
(f) The county recorder shall make available to the public
Restrictive Covenant Modification forms onsite in an appropriately
designated area, which shall be deemed to satisfy the requirement of
paragraphs (1) and (2) of subdivision (b) of Section 12956.1 to
provide a Restrictive Covenant Modification form if the specified
procedural information for completion is attached to the form. Those
forms shall permit multiple submissions on behalf of different homes
and for processing homes in batches with respect to a modification
document that affects multiple homes or lots.
(g) If the holder of an ownership interest of record in property
or a third party causes to be recorded a modified document pursuant
to this section that contains modifications not authorized by this
section, the county recorder shall not incur liability for recording
the document. The liability that may result from the unauthorized
recordation is the sole responsibility of the holder of the ownership
interest of record or third party who caused the modified
recordation.
(h) This section does not apply to persons holding an ownership
interest in property that is part of a common interest development as
defined in subdivision (c) of Section 1351 of the Civil Code if the
board of directors of that common interest development is subject to
the requirements of subdivision (b) of Section 1352.5 of the Civil
Code.
SEC. 3. Article 3.6 (commencing with Section 27310) is added to
Chapter 6 of Part 3 of Division 2 of Title 3 of the Government Code,
to read:
Article 3.6. Unlawfully Restrictive Covenant Redaction
27310. As used in this article, the following terms have the
following meanings:
(a) "Official record" means the permanent archival record of all
instruments, papers, and notices as accepted for recording by a
county recorder.
(b) "Procedural information," as it relates to a Restrictive
Covenant Modification, means the description of how to locate
potentially unlawful restrictive covenants and how to submit the
Restrictive Covenant Modification document to the county recorder for
appropriate processing. This description may, but is not required
to, use the following language:
Some archived property documents may contain offensive, illegal
language that purports to restrict ownership or occupancy of
property. These restrictions are illegal, and have no effect on
anyone's ability to own or occupy the property, but may still appear
in property documents as an unlawful restrictive covenant.
Sometimes these illegal restrictions appear only in archived
documents and may be found only by a review of those documents at the
office of the county recorder. You may search those documents for
free at the office of the county recorder, which is open to the
public. If you discover an illegal restriction, you may obtain a
Restrictive Covenant Modification form from the office of the county
recorder to request the removal of the illegal restriction. You must
submit a modification document that includes a complete copy of the
original document containing the unlawfully restrictive language with
the unlawfully restrictive language stricken.
After you complete the form and submit it to the office of the
county recorder, the county counsel will make a legal determination
whether the language is indeed unlawful and should be removed. If an
illegal restriction is found to exist, state law contains a procedure
for the creation of a replacement document that does not contain the
offensive language. This procedure may be used to remove illegal
restrictions from a declaration, governing document, or deed, even if
you are not the owner.
(c) "Public record" means a record that is in an electronic format
and is an exact copy of an official record except that any
unlawfully restrictive covenant contained in the copied record is
redacted and any social security number contained in the copied
record is truncated pursuant to Article 3.5 (commencing with Section
27300). The public record shall have the same legal force and effect
as the official record.
(d) "Unlawfully restrictive covenant" means any written covenant,
condition, or restriction annexed or made a part of, by reference or
otherwise, a deed or other instrument in violation of subdivision (l)
of Section 12955.
27311. (a) The county recorder of each county shall create a
public record version of each official record for which a Restrictive
Covenant Modification is recorded pursuant to Section 12956.2 on or
after January 1, 2010. The public record shall be in an electronic
format and an exact copy of the official record, except that any
unlawfully restrictive covenant contained in the official record
shall be redacted. An electronic version of the unredacted record,
for which a Restrictive Covenant Modification is recorded, shall
become the official record for purposes of this section.
(b) Nothing in this article shall be construed to restrict, delay,
or modify access to any official record, or modify any existing
agreements regarding access to any official record, prior to the
creation and availability of a public record version of that official
record. A county recorder shall not charge any new fee or increase
any existing fees in order to fund the redaction of unlawfully
restrictive covenants pursuant to this article, except as provided in
subdivision (e) of Section 27361.
(c) The county recorder shall not incur any liability for a
procedural, clerical, or administrative error in the recording of a
modification document or any other activity related to the redaction
of an unlawfully restrictive covenant pursuant to this article.
27313. If a public record version of an official record exists,
both of the following shall apply:
(a) Upon a request for inspection, copying, or any other public
disclosure of an official record that is not exempt from disclosure,
a county recorder shall make available only the public record version
of that record.
(b) A county recorder shall publicly disclose an official record
only in response to a subpoena or order of a court of competent
jurisdiction.
27314. (a) Each county may use funds generated by fees authorized
by subdivision (e) of Section 27361 to implement this article.
(b) It is the intent of the Legislature that counties be permitted
to seek revenue anticipation loans or other outside funding sources
for the implementation of this article to be secured by the
anticipated revenue from the fee authorized by subdivision (e) of
Section 27361.
27317. A county recorder is authorized to take all actions
required by this article notwithstanding subdivision (d) of Section
27203 or any other provision of law.
27318. The county counsel shall not incur liability for the
failure to strike unlawfully restrictive language from a document if
that language was not identified on the Restrictive Covenant
Modification form as an illegal restriction.
SEC. 4. Section 27361.05 is added to the Government Code, to read:
27361.05. (a) (1) In addition to all other fees authorized by
Section 27361, for recording the first page of every property related
instrument, paper, or notice required or permitted by law to be
recorded, a county recorder shall charge an initial fee of not more
than two dollars ($2) and the board of supervisors shall adjust the
fee to a whole dollar amount reasonably sufficient to recover costs
for performing activities related to the redaction of an unlawfully
restrictive covenant pursuant to Sections 12956.1 and 12956.2, and
Article 3.6 (commencing with Section 27310). The funds generated by
this fee shall be used only by the county collecting the fee for the
sole purpose of performing activities related to the redaction of an
unlawfully restrictive covenant pursuant to Sections 12956.1 and
12956.2, and Article 3.6 (commencing with Section 27310).
(2) The fee described in paragraph (1) may be included in an
extended multiyear funding plan if that plan also sets forth the
funds allocated to the county recorder for equipment and training in
order to implement the requirements of Article 3.6. Pursuant to that
plan, the fee may be allocated over more than one year.
(3) If any person disputes whether a fee levied pursuant to
paragraph (1) is reasonable, the board of supervisors may request the
county auditor to conduct a study to determine whether the fee is
reasonable.
(4) Nothing in this subdivision shall be construed to mean that
the county shall not continue to be subject to fee review procedures
required by Article XIII B of the California Constitution.
(b) Paragraph (b) of Section 27361 does not apply to the fee
described in this section.
SEC. 5. The Legislature finds and declares that Section 3 of this
act imposes a limitation on the public's right of access to the
meetings of public bodies or the writings of public officials and
agencies within the meaning of Section 3 of Article I of the
California Constitution. Pursuant to that constitutional provision,
the Legislature makes the following finding to demonstrate the
interest protected by this limitation and the need for protecting
that interest:
In order to protect against the risk of discrimination when
government documents maintained by county recorders contain
unlawfully restrictive covenants, it is necessary to enact
legislation that minimizes the existence of unlawfully restrictive
covenants in those government documents.
SEC. 6. The Legislature finds that there is no mandate contained
in this act that will result in costs incurred by a local agency or
school district for a new program or higher level of service which
require reimbursement pursuant to Section 6 of Article XIII B of the
California Constitution and Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.