California's Comprehensive Protections for Immigrants and Persons Requesting Law Enforcement or Emergency Assistance in Residential Housing

• Jurisdiction: California,United States
• Citation: Vol. 42 No. 2
• Publication year: 2019
• Author: By Bonnie C. Maly
• topic: Civil Rights,Immigration Law,Criminal Law,Public Sector Law,Real Estate

California's Comprehensive Protections for Immigrants and Persons Requesting Law Enforcement or Emergency Assistance in Residential Housing

By Bonnie C. Maly

Bonnie C. Maly is a Publications Attorney in CEB's Real Property & Public Law Practice Group. Ms. Maly was previously a litigation attorney in California for nearly two decades, representing all kinds of parties in real estate and business litigation involving real property sales and financing, landlord-tenant and partnership disputes, construction defects, and construction contracts. She was also a volunteer court mediator and judge pro tem. She was a member of the Contra Costa Bar Association Real Estate Section for 30 years, and was its president in 1997-98.

For two years in a row, California adopted far-reaching protections for tenants in residential rental housing. The first law, passed in 2017, prohibits discrimination on the basis of, and making inquiries into, a person's immigration status. The second law, enacted in 2018, is a comprehensive attempt to guide owners of both private and public rental housing through their dealings with tenants when the tenants (or residents, occupants, or other persons) make requests for law enforcement assistance or emergency assistance on the premises. This article summarizes these laws and highlights provisions that are of particular interest to public law attorneys.

I. IMMIGRATION PROTECTIONS.

Under A.B. 299, which amended Civil Code ("CC") §1940.3 and became law on January 1, 2018, all public entities (as well as landlords) in California must be on alert for newly defined obligations and restrictions that protect immigrants in residential housing. The legislature initially enacted this section in 2007 in response to the adoption of an anti-immigrant ordinance by the City of Escondido and because of similar ordinances proposed by other California cities. CC §1940.3 contains two major antidiscrimination approaches: one regulates the activities of public entitles, and the other regulates the conduct of private owners.

A. Public Entity Restrictions

When initially enacted, CC §1940.3 applied only to local entities (i.e., cities and counties), and it prohibited them from adopting ordinances or regulations that required landlords to screen tenant households for legal residency status or that made it a crime to rent to households with members lacking documentation of legal residency. Previously, in Garret v City of Escondido ¹, a federal district court issued a temporary restraining order enjoining enforcement of Escondido's ordinance, expressing serious concerns that the ordinance may violate the supremacy and due process clauses of the U.S. Constitution.

In 2017, A.B. 299 amended CC §1940.3 to make it applicable to all public entities in California, which are now prohibited from adopting ordinances, regulations, or policies that either require landlords to screen tenant households for legal residency status or make it a crime to rent to households with members lacking documentation of legal residency.

But a carve-out remains under federal law, which requires public housing authorities and other local entities to verify immigration status for the purpose of granting certain kinds of rental assistance to tenants who qualify under 42 USC §1436a. The Quality Housing and Work Responsibility Act of 1998 (QHWRA) amended Section 1436a by repealing the language giving discretion to public entities to ignore the immigration status of housing assistance applicants; thus, it currently allows only citizens, nationals, and six specifically defined categories of immigrants to receive federal assistance. Before the amendment, entities were required to verify immigration status but allowed to ignore the results; now they must collect the information. California law acknowledges this exception.²

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The preemptive position of Section 1436a and...