The State of California enacted legislation on 2019 effecting homeowners beginning January 1, 2020 who place their homes on the market to sell. Any seller after construction of his or her home that has received a final governmental inspection report in compliance with California Government Code sections 51182 and 51189 (home hardening laws) is required to provide before close of escrow to the buyer a copy of the report pertaining to the listed home, or information where a copy of the report may be obtained in writing from January 1, 2020 onward.
I and my family have experienced first-hand recent wild fires in the county where we live (Sonoma-Tubb and Glass Fires), our town (Healdsburg-Walbridge and Kinkade Fires) and the county where my and my wife’s son attended college (Butte-Paradise Fire)
From January 1, 2021, this new California legislation requires that property owners who are selling their homes which are in high to very high fire severity zones that were built prior to calendar year 2010 are requires to provide all potential buyers of the home before close of escrow a written and dated notice stating the following:
- The mandated statutory notice containing information to the buyer on how to fire harden a home (See California Association of Realtor [C.A.R. © Form FHDS 6/21]) which states:
“This home is located in a high or very high fire hazard severity zone and this home was built before the implementation of the Wildfire Urban Interface building codes which help to fire harden a home. To better protect your home from wildfire, you might need to consider improvements. Information on fire hardening, including current building standards and information on minimum annual vegetation management standards to protect homes from wildfires, can be obtained on the internet.”
- A detailed written disclosure of the features of the listed home that makes the home suspectable to embers and wild fires. Examples would be single pane windows, gutters that allow the collection of leaves, eaves that could allow embers to fall into, flammable landscape within five (5) feet of the home (rosemary and juniper bushes are examples) and untreated wood shingles on the home’s roof.
- A written disclosure that on or after July 1, 2025, a list of low-cost retrofits for home hardening as set forth within California Government Code section 51189. This written and dated list of low-cost retrofits by the seller must disclose which listed retrofits, if any, that have been completed during the time that the seller has owned the property, where the retrofits are located and when they were done.
If a local County or township ordinance is in effect after January 1, 2021 mandating a home seller to comply with California law on vegetation management (vegetation or defensible space requirements) the home seller is required to provide all potential buyers of the listed home written documentation demonstrating compliance and information where this documentation can be obtained well before escrow’s close.
If there is no such local ordinance on home hardening in place where the seller’s home is located, and if the seller has had an inspection from a state, local or other government agency or qualified nonprofit which provides an inspection with documentation for the property (Cal-Fire for example), the seller must before close of escrow provide all potential buyers with the inspection report if it was obtained prior to six (6) months before a formal contract was entered into and written and dated information where the inspection report may be acquired by the buyer.
The new law requires that if there has been no home hardening inspection report on the home in contract to be sold within six (6) months of the contract date, the parties are required to sign a dated and written agreement where the buyer will obtain documentation of compliance under local ordinance or, if there is no local ordinance on home hardening, the buyer will within one (1) year of escrow’s close, obtain home hardening compliance written documentation provided there is a state, local or other government agency or qualified nonprofit providing home hardening inspections with home hardening compliance documentation of the property under contract to sell.
The failure of the seller to comply with California’s new home hardening fire disclosure law before close of escrow allows the buyer to cancel the escrow to purchase a given property and receive the return of all his or her earnest money deposit even if the buyer has waived in writing all contingencies of the sale.
Be sure your business is protected with California real estate errors and omissions insurance for individuals or California real estate E&O insurance for companies.
About the Author
B. Edward McCutchan, Jr.
Sunderland | McCutchan, LLP
© 2021
Mr. McCutchan’s practice is primarily civil litigation with an emphasis in defending professionals and businesses in real estate, mortgage brokering, construction, banking and agricultural industries and all phases of dispute resolution through trial and appeal. His area of practice is also agricultural law (viticulture and wineries), trusts and estates, probate, real estate transactions, business law and elder abuse. B. Edward McCutchan, Jr. was admitted to the Bar in 1985 and is admitted and qualified to practice in all California courts and the U.S. District Court, Eastern and Northern Districts of California as well as the United States Tax Court.
