Sometimes you do not even know there is an issue until someone raises a question. Special thanks to Ryan Gesell from Cline Agency and to the managers that asked Ryan if Civil Code §§ 1102.6f and 1102.19, as added by AB-38 (2019), apply to homeowners’ associations; teaser alert: they do!
We reviewed Civil Code §§ 1102.6f and 1102.19, Government Code § 51182 which relates to the aforementioned Civil Code sections, and all related material from the Office of the State Fire Marshal who is responsible for this fire prevention program. Civil Code §§ 1102.6f and 1102.19 and Government Code § 51182 do not contain limitations or exclusions as they relate to condominiums or lots; therefore, it appears that these laws apply to both condominiums and lots/planned developments. Uggg!
Seller Disclosure Requirements
Below is a brief summary of Civil Code §§ 1102.6f and 1102.19, which places obligations on a seller located in a high/very high hazard severity zone to disclose to a buyer the fire hardening improvements made to a home and what retrofit options exist to address fire safety issues on the home.
On or after January 1, 2021, the seller of any real property located in a high or very high fire hazard severity zone is required to provide a disclosure notice to the buyer, if the home was constructed before January 1, 2020, 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 website http://www.readyforwildfire.org.”
In addition, a seller, to its knowledge, shall disclose which of the following features, if any, that exist on the home:
- Eave, soffit, and roof ventilation where the vents have openings in excess of one-eighth of an inch or are not flame and ember resistant.
- Roof coverings made of untreated wood shingles or shakes.
- Combustible landscaping or other materials within five feet of the home and under the footprint of any attached deck.
- Single pane or non-tempered glass windows.
- Loose or missing bird stopping or roof flashing.
- Rain gutters without metal or noncombustible gutter covers.
So, what does this have to do with the Association? Well, if the above components are within the common area or otherwise subject to the association’s maintenance obligations, the Association should provide disclosures to homeowners so that they can comply with the disclosure requirements.
Pro Tip: Update your escrow disclosure ordering form to provide sellers the opportunity to purchase this disclosure during escrow.
But, that is not all.
On or after July 1, 2021, a seller of real property located in a high or very high fire hazard severity zone is required to obtain an inspection report that documents compliance with Section 4291 of the Public Resources Code, or a local vegetation management ordinance, from Cal Fire, the local municipality, or non-profit established for this purpose. The seller must provide a copy of this inspection report or where to obtain a copy of the report to the buyer. If the seller is not able to provide the report to the buyer in escrow, the seller and buyer must make an agreement that the buyer will comply with the ordinance. In jurisdictions where the local municipality has not enacted a vegetation ordinance, the buyer has one year to comply with the state ordinance.
Pro Tip: The reports are valid for 6 months. Educate owners on the requirement and encourage them to request a report early because it may not occur within their escrow timeframe if there are fires or other disasters that are overburdening the inspection office.
Pursuant to Cal Fire, the inspection ends at the property line. For single family homes, this shouldn’t be a problem. For townhomes, condos with patios, or detached condos, where the property line and the maintenance requirements may differ, we do not expect the inspector to read and understand your CC&Rs and plot plans during the inspection. As such, the inspection reports may end up finding requirements for maintenance that fall under the Association’s responsibility.
Pro Tip: Update governing documents to deal with these escrow requests and require a seller to pay for completing abatement if required for an escrow transaction and it is before the Association’s planned maintenance period the seller will be financially responsible for obtaining clearance within their escrow time period without being able to seek nor being entitled to financial reimbursement from the association for same.
On or after July 1, 2025, sellers are required to disclose any low-cost retrofits recommended by the State Fire Marshal that have been completed on the home.
You can find the list here: https://www.readyforwildfire.org/wp-content/uploads/Low-cost-Retrofit-List-Update-5-14-21.pdf
Never ones to just answer the question before us, we were curious to see if this new law affected the typical association escrow disclosure requirements pursuant to the Davis Stirling Act. The fire prevention disclosure requirements do not incorporate or modify the existing escrow disclosures required by the Davis Stirling Act (Civil Code §§ 4525 and 4530). So, it seems like the burden of disclosures is squarely on the owner. That said however, where a seller has a requirement to make these disclosures and the Association is in the best position to answer whether the fire prevention measures have been completed, the Association should provide this information to the seller.
Fire Prevention and Defensible Space Obligations
The law also “requires a person who owns, leases, controls, operates, or maintains a building or structure in, upon, or adjoining a mountainous area, forest-covered lands, brush-covered lands, grass-covered lands, or land that is covered with flammable material to take specified measures to protect that building or structure from wildfires.”
For our purposes, we wanted to know whether this would require an association to do anything. We looked at Government Code § 51182 which is the referenced existing law and we believe that an association must make defensible space (varying degrees of clearing vegetation within 100 ft. of the structure where the association has a duty to maintain those areas, pursuant to the CC&Rs). An association’s landscaper should be able to help with the association’s defensible space obligations.
Please see below for the relevant provisions of Government Code § 51182 and its obligations (illustration follows):
(a) A person who owns, leases, controls, operates, or maintains an occupied dwelling or occupied structure in, upon, or adjoining a mountainous area, forest-covered land, brush-covered land, grass-covered land, or land that is covered with flammable material, which area or land is within a very high fire hazard severity zone designated by the local agency pursuant to Section 51179, shall at all times do all of the following:
(1) (A) Maintain defensible space of 100 feet from each side and from the front and rear of the structure, but not beyond the property line except as provided in subparagraph (B). The amount of fuel modification necessary shall consider the flammability of the structure as affected by building material, building standards, location, and type of vegetation. Fuels shall be maintained in a condition so that a wildfire burning under average weather conditions would be unlikely to ignite the structure. This subparagraph does not apply to single specimens of trees or other vegetation that are well-pruned and maintained so as to effectively manage fuels and not form a means of rapidly transmitting fire from other nearby vegetation to a structure or from a structure to other nearby vegetation. The intensity of fuels management may vary within the 100-foot perimeter of the structure, with more intense fuel reductions being used between 5 and 30 feet around the structure, and an ember-resistant zone being required within 5 feet of the structure, based on regulations promulgated by the State Board of Forestry and Fire Protection, in consultation with the Department of Forestry and Fire Protection, to consider the elimination of materials in the ember-resistant zone that would likely be ignited by embers. The promulgation of these regulations by the State Board of Forestry and Fire Protection is contingent upon an appropriation by the Legislature in the annual Budget Act or another statute for this purpose. Consistent with fuels management objectives, steps should be taken to minimize erosion.
(B) A greater distance than that required under subparagraph (A) may be required by state law, local ordinance, rule, or regulation. . . . Clearance on adjacent property shall only be conducted following written consent by the adjacent landowner.
(2) Remove that portion of a tree that extends within 10 feet of the outlet of a chimney or stovepipe.
(3) Maintain a tree, shrub, or other plant adjacent to or overhanging a building free of dead or dying wood.
(4) Maintain the roof of a structure free of leaves, needles, or other vegetative materials.
(b) A person is not required under this section to manage fuels on land if that person does not have the legal right to manage fuels, nor is a person required to enter upon or to alter property that is owned by any other person without the consent of the owner of the property.
Many municipalities have a local ordinance that is more restrictive than the Government Code. Your local fire department or government office can advise you regarding these local ordinances. You could also search local ordinances, using terms such as Vegetation Management, Defensible Space or Weed Abatement. Click here to search for local ordinances: https://library.municode.com
Just when we thought our clients met all of the association disclosure obligations, boom, there it is. Be safe out there!
To find out if a property falls within these zones, use the Fire Hazard Severity Zone Map provided by the Office of the State Fire Marshall: https://egis.fire.ca.gov/FHSZ.
Want to do a self-assessment to see if your property is fire ready, click here:
To view a sample inspection report/checklist: https://www.fire.ca.gov/media/efohhopt/sample-le-100a-english.pdf
Homeowners can request appointments for escrow inspections by contacting their local fire department or follow the links below:
If the property is located in:
• Los Angeles County, please visit Los Angeles Defensible Space
• Orange County, please visit Orange County Fire Authority – Ready, Set, Go
• Santa Barbara County, please visit Santa Barbara Defensible Space
• Ventura County, please visit Ventura County Defensible Space
- Other locations in California, please visit CalFire Defensible Space Inspection Request
SwedelsonGottlieb is committed to helping managers and board members comply with this disclosure requirement. If your association would like to consult with us, please contact us at firstname.lastname@example.org or by calling 800-327-2207.