Questions:
What are the point of sale requirements regarding smoke alarms and carbon monoxide detectors?
How many smoke alarms and carbon monoxide detectors must a residential property have?
What if the appraiser flags the property as not having enough smoke alarms or carbon monoxide detectors? Must the seller install additional smoke alarms or carbon monoxide detectors?
Smoke Alarms
California Health & Safety Code section 13113.8, effective January 1, 2013, at subdivision (a), states: “[E]very single-family dwelling[[i]] … which is sold shall have an operable smoke alarm. … At the time of installation, the alarm shall be approved and listed by the State Fire Marshal and installed in accordance with the State Fire Marshal’s regulations” (emphasis added).[ii]
Thus, state law requires only one smoke alarm to be installed at point of sale. That one smoke alarm must be approved and listed by the State Fire Marshall, and installed correctly, at the time of installation. Note that since the approval and installation requirements are applied at the time of installation, many homes may already be in compliance, and those sellers need not purchase and install a new smoke alarm to become compliant with Section 13113.8.
An additional point of sale requirement is that the seller must deliver to the buyer, “as soon as practicable before the transfer of title,” a written statement indicating that the seller is in compliance with Section 13113.8. See subdivisions (b) and (c). An example of such a written statement is California Association of Realtors form WHSD, entitled “Water Heater and Smoke Detector Statement of Compliance,” however a seller may fulfill his/her disclosure obligation with a more simple statement of compliance.
It is important to note that Section 13113.8 specifically states that a real estate licensee has no liability for any error or omission in the disclosure[iii] and has no duty to monitor or ensure compliance. See subdivisions (e) and (f).
A buyer’s exclusive remedy, in the event of a seller’s violation of Section 13113.8, is an award of actual damages, not to exceed $100 – the buyer may not invalidate the transfer of title. See subdivision (g).
Last, Section 13113.8 enables local jurisdictions (counties and cities) to enact or amend their own ordinances requiring smoke alarms, as long as they meet or exceed the requirements of Section 13113.8. See subdivision (h). Many local jurisdictions have done so.
If an appraiser flags a residential property for failing to meet the requirements of Section 13113.8 and/or local ordinances, the seller should inquire with the appraiser which statute or ordinance has been violated. If Section 13113.8 has been violated, see above for the point of sale requirements. If a local ordinance has been violated, the seller should obtain a copy of the local ordinance. The seller may want to seek the assistance of a real property lawyer and/or a general contractor knowledgeable in this area, to interpret the local ordinance and ensure that the seller’s property is in compliance at the time of sale.
Carbon Monoxide Devices
California Health & Safety Code section 17926, effective January 1, 2015, is a bit more complicated. Section 17926 states: “An owner of a dwelling unit intended for human occupancy[[iv]] shall install a carbon monoxide device, approved and listed by the State Fire Marshal … in each existing dwelling unit having a fossil fuel burning heater or appliance, fireplace, or an attached garage…. … With respect to the number and placement of carbon monoxide devices, an owner shall install the devices in a manner consistent with building standards applicable to new construction for the relevant type of occupancy or with the manufacturer’s instructions, if it is technically feasible to do so.” Emphasis added.
Note that Section 17926 is not just a point of sale requirement – property owners must comply and install CMDs, regardless of whether they intend to sell their property. However, this of course includes property owners that do intend to sell their property. Thus, state law requires, for all transfers of residential property,[v] at least one carbon monoxide device (“CMD”) to be installed at point of sale. The CMDs must be approved and listed by the State Fire Marshall.
Regarding the number and placement of CMDs, an owner may choose to comply with either new construction building standards, or the CMD manufacturer’s instructions. See subdivision (b). Since new construction building standards are difficult to interpret and may and probably will change without notice to the owner, it would be more reliable for an owner to install the CMDs in accordance with the manufacturer’s instructions, which are usually included with the CMD.
If an owner chooses to install CMDs in accordance with “building standards applicable to new construction,” the 2013 California Residential Code, section R315.1.4, states “Carbon monoxide alarms … shall be installed and maintained in the following locations: (1) Outside of each separate dwelling unit sleeping area in the immediate vicinity of the bedrooms; [and] (2) On every level of a dwelling unit including basements.”
As with Section 13113.8 for smoke alarms, a buyer’s exclusive remedy, in the event of a seller’s violation of Section 17926, is an award of actual damages, not to exceed $100 – the buyer may not invalidate the transfer of title. See subdivision (d). However, Section 17926 also provides for government enforcement – a violation of Section 17926 is an infraction, punishable by a maximum fine of $200 for each offense.[vi] See subdivision (c)(1).
Also as with Section 13113.8 for smoke alarms, Section 17926 enables local jurisdictions to enact or amend their own ordinances requiring CMDs, as long as they are consistent with Section 17926. See subdivision (e). Many local jurisdictions have done so.
Unlike Section 13113.8 for smoke alarms, Section 17926 contains no carve-out for real estate licensees’ liability and no requirement that a seller deliver to a buyer a written statement of compliance.[vii] Notwithstanding that, the California Association of Realtors has drafted form CMD, entitled “Carbon Monoxide Detector Notice,” which recites the pertinent provisions of Section 17926 and confirms that no written statement of compliance is necessary.
As with Section 13113.8 for smoke alarms, if an appraiser flags a residential property for failing to meet the requirements of Section 17926 and/or local ordinances, the seller should inquire with the appraiser which statute or ordinance has been violated. If Section 17926 has been violated, see above for the point of sale requirements. If a local ordinance has been violated, the seller should obtain a copy of the local ordinance. The seller may want to seek the assistance of a real property lawyer and/or a general contractor knowledgeable in this area, to interpret the local ordinance and ensure that the seller’s property is in compliance.
[i] Includes 1- and 2-unit dwellings, but not manufactured or mobile homes.
[ii] Some transfers are exempt. See Section 13113.8, subdivision (d).
[iii] Unless the licensee participated in making the disclosure with actual knowledge of the disclosure’s falsity.
[iv] “Dwelling unit intended for human occupancy” in Section 17926 is broader than “single family dwelling” in Section 13113.8 and includes almost all residential property types.
[v] Unlike Section 13113.8 for smoke alarms, no transfers are exempt from Section 17926. However, Section 17926 does not apply to residential property that does not have any of the following: (1) a fossil fuel burning heater or appliance; (2) a fireplace; or (3) an attached garage. An example would be a condominium unit with all-electric heating and appliances.
[vi] The owner must first be given a “30-day notice to correct” and must fail to correct within that time. See subdivision (c)(2).
[vii] Sellers are required, however, to disclose on the Transfer Disclosure Statement whether the property has a CMD. See California Civil Code Section 1102, et seq.
