BILL ANALYSIS Ó AB 73 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 73 (Waldron and Gipson) As Amended August 18, 2016 2/3 vote. Urgency -------------------------------------------------------------------- |ASSEMBLY: | |(January 25, |SENATE: |39-0 |(August 23, | | | |2016) | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- (vote not relevant) ---------------------------------------------------------------------- | | | | | | | | | | | | |COMMITTEE VOTE: |9-0 |(August 25, |RECOMMENDATION: |concur | | | |2016) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | ---------------------------------------------------------------------- (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 AB 73 Page 2 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.) AB 73 Page 3 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 AB 73 Page 4 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