BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 73


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          CONCURRENCE IN SENATE AMENDMENTS
          AB  
          73 (Waldron and Gipson)


          As Amended  August 18, 2016


          2/3 vote. Urgency


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          |ASSEMBLY:  |      |(January 25,   |SENATE: |39-0  |(August 23,      |
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          |COMMITTEE VOTE: |9-0  |(August 25,     |RECOMMENDATION:   |concur     |
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          (Jud.)




          Original Committee Reference:  HEALTH.


          SUMMARY:  Specifies that the owner of real property, his or her  
          agent, or the agent of a transferee of real property, is not  








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          required to disclose that an occupant of the property being  
          transferred was living with human immunodeficiency virus (HIV),  
          and that no cause of action shall arise for failure to disclose  
          such information. 


          The Senate amendments delete the Assembly version of this bill,  
          and instead:


          1)Provide that an owner of real property or his or her agent, or  
            any agent of a transferee of real property, is not required to  
            disclose either of the following to the transferee, as these  
            are not material facts that require disclosure:


             a)   The occurrence of an occupant's death upon the real  
               property or the manner of death where the death has  
               occurred more than three years prior to the date the  
               transferee offers to purchase, lease, or rent the real  
               property.


             b)   That an occupant of that property was living with human  
               immunodeficiency virus (HIV) or died from AIDS-related  
               complications.


          2)Specify that no cause of action shall arise against an owner  
            or his or her agent or any agent of a transferee for not  
            disclosing the facts in a) and b) above. 


          EXISTING LAW: 


           1) Requires the seller of real property, or his or her agent,  
             to provide a specified disclosure statement and make  
             specified disclosures relating to the real property before  
             transfer of title, or close of escrow, when transferring real  
             property.  (Civil Code Sections 1102 et seq. and Sections  
             2079 et seq.) 








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           2) Provides that no cause of action shall arise against a real  
             property owner or agent, or any agent of a transferee of real  
             property, for the failure to disclose to the transferee the  
             occurrence or manner of an occupant's death where the death  
             has occurred more than three years prior the date of the  
             transferee's offer to purchase or lease the property, or that  
             an occupant of the property had or died from AIDS.  (Civil  
             Code Section 1710.2.) 


          FISCAL EFFECT:  None


          COMMENTS:  In the mid-1980s, in response to rampant  
          misconceptions about AIDS or how the HIV virus that causes it  
          could be transmitted from one person to another, lawmakers and  
          policy makers began to take steps to combat common  
          misconceptions, including the fear that the HIV virus could be  
          acquired by merely touching physical objects that had been  
          touched by a person with AIDS or HIV.  With SB 284 (Ellis),  
          Chapter 513, Statutes of 1986, and SB 324 (Davis), Chapter 494,  
          Statutes of 1987, the Legislature enacted legislation designed  
          to free sellers or real property, or their agents, from any duty  
          to disclose to a prospective buyer that an occupant of the  
          property either had or died from AIDS.  However, the original  
          legislation did not affirmatively state there was no duty to  
          disclosure this information; rather, the legislation stated that  
          "no cause of action arises" against the seller or agent for  
          failure to disclose such information.  This bill, however, would  
          affirmatively state that the real property owner or agent is not  
          required to disclose the occurrence or manner of death of an  
          occupant, as specified, or that an occupant of the property was  
          living with human immunodeficiency virus (HIV).  According to  
          the author, while existing law may clearly state that there is  
          no cause of action for failure to disclose, many sellers and  
          their agents remain uncertain as to whether or not there is a  
          duty to disclose.  The author and co-sponsors contend that this  
          section caused confusion among some homeowners and realtors  
          because of the specific mention of HIV in the statute.  Clearly,  
          the intent of the original legislation was not only to state  








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          that there could be no cause of action for failure to disclose,  
          but implicitly, because there could be no cause of action, there  
          was impliedly no duty to disclose.  As a practical matter, that  
          is, one cannot be said to have a legal "duty" if there are no  
          consequences for not performing the duty.  Be that as it may,  
          this bill would make it abundantly clear that neither the seller  
          of real property, nor his or her agent, is under any duty or  
          requirement to disclose that an occupant of the property had or  
          died from AIDS, as these are not material facts that require  
          disclosure.  This bill would also specify, consistent with  
          existing law, that no cause of action shall arise for failure to  
          disclose such information. 


          Analysis Prepared by:                                             
                          Thomas Clark / JUD. / (916) 319-2334  FN:  
          0004930