Real Estate Disclosure (AB 38)
Real Estate Disclosure - Wildfire Risk - Vegetation Management / Home Hardening
New regulations require an inspection and disclosure regarding compliance with defensible space / vegetation management standards. See the below article for additional information.
Is my property in a "high" or "very high" fire hazard severity zone? If yes - This disclosure is required. CLICK HERE
Inspections are performed by CAL-Fire as all properties in the Sonoma Valley Fire District that require this disclosure are in the State Responsibility Area.
To Schedule an Inspection - CLICK HERE
NEW California Disclosure – Home Fire Hardening Disclosure and Advisory
Just about every year California amends what sellers are required to disclose, and one change that I think we’ll be seeing a lot of is about home fire hardening. Many agents, including myself, will begin to use the fire hardening disclosure / document (which has already changed once in six months). The current one, as of June 2021, is the C.A.R. Form FHDS, 5/21 Fire Hardening and Defensible Space Advisory, Disclosure, and Addendum.
So what is in this document, who will have to use it, and how can it help buyers and current home owners?
The CAR Fire Hardening and Defensible Space form is a two page document completed by the seller of a residential non-commercial property to notify the buyer of fire hazard zoning, code compliance, and possible vulnerabilities and/or defensible features. Both the buyer(s) and seller(s) sign to acknowledge receipt and consent to comply with the appropriate terms in paragraph 4B.
Who Will Use This Form? Paragraphs 1 and 2: Prerequisites
This disclosure is required for homes (1-4 unit residential properties) in high or very high fire hazard severity zones when the seller must complete a Transfer Disclosure Statement (TDS form). Sellers for California real estate transactions falling within those criteria are obligated to provide specific information contained in this form to the buyer. If these properties were improved or were built before January 1, 2010 there are additional stipulations. However, use is not restricted to properties in these zones.
Owners of residences where the zone is unknown, or those outside of the designated fire hazard zones which are “in, upon, or adjoining a mountainous area, forest-covered land, brush-covered land, grass-covered land, or land that is covered with flammable material,” (Gov’t Code 51182 and 1C in CAR FHDS 5/21 – basically, homes in or near ample kindling) should also make these disclosures if they might be considered materially important. Even when it’s not legally necessary, any homeowner might voluntarily disclose using sections of this form. To show that a home is not in a designated high or very high fire hazard severity zone, sellers simply check the box indicating so in paragraph 2B.
Is the address in a high or very high fire hazard severity zone?
Not all homeowners know if their property is in one of these zones, but it’s the seller’s responsibility to find out! In paragraph 1B the form suggests that a natural hazard zone disclosure company could determine this information (and if you’re selling you may have already ordered a report that would contain those details), but it certainly isn’t the only resource.
Publicly accessible records, like county or city/town zoning maps, should include local Fire Hazard Severity Zone Maps including both State Responsibility Areas and Local Responsibility Areas. The California State Geoportal has an easy to scroll California Fire Hazard Severity Zone Viewer that organize State Responsibility Areas from Very High to Moderate zones and also display Local Responsibility Very High hazard zones. You can also search for a map through town, city, and county websites. Many foothill communities have their own fire hazard maps available online (I checked Saratoga, Los Gatos, and San Jose, and they all had something online). And you can always contact the county’s planning department.
What’s In This Form? Paragraphs 3 – 5: Fire Hardening and Defensible Space
3. Fire Hardening Disclosure
For homes within high and very high fire hazard severity zones built before 2010, paragraph 3 contains the statutory fire hardening notice (in bold and all caps, but I’ll spare you the formatting):
“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.”
Beneath this statement is a checklist of 6 features labeled 3B(1-6) identifying potential elements which might make the home more vulnerable to wildfire or embers. Any that the seller is aware of will be checked off, indicating a potential susceptibility that the buyer should be aware of may want to improve. The list is as follows:
- 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.
Examples of features from the list, clockwise from top left: Combustible landscaping within 5ft of house (#3), a fire-resistant concrete roof but no gutter covers (#2 and #6), another example of combustible material too close to home (#3), use a ruler to check the mesh size of attic vents (#1)
If a box isn’t checked, either the seller has actual knowledge that the property does not have the specified vulnerabilities, or they do not know about the indicated feature. While this checklist is only required for high or very high fire hazard severity homes built before 2010, it may also be adopted by any seller.
Some items can be easily spotted, such as complying or non-complying windows, vents, and landscaping (did you know mulch is a fire risk?). I’ve put a few examples in the image to the left. Others are not as easily observed and are more likely to be left blank, such as the loose or missing bird stopping or flashing. A home or roof inspection would be more likely to uncover these issues.
4. Defensible Space Requirements
Residential properties, old or new, within the high to very high fire hazard severity zones are required to comply with paragraph 4, though any seller may opt to complete this section.
It begins with an advisory (4A) that a defensible space must be maintained within 100 feet of structures (per Public Resources Code 4291) to lessen any fire risk. Local vegetation management ordinances may also apply, and beginning July 1, 2021 applicable properties will be required to include disclosures of compliance with these defensible space laws (Civil Code 1102.19). These may be the responsibility of either the buyer or the seller and have a broad range of timeframes for obtaining and/or delivering this documentation depending on local ordinances. The seller will check one of the boxes between 4B(2-4) or, if all are left blank, then 4B(1) applies, signaling the relevant conditions. Here’s the gist of it:
If local government (county, town, or city) has not established any proof of compliance measures for defensible space laws, the state demands documentation and either 4B(1) or 4B(2) will apply.
In the default, 4B(1), the buyer must acquire confirmation within one year of the close of escrow from an Authorized Inspector in the jurisdiction of the property. Alternatively, in 4B(2), if the seller has opted to procure proof of compliance from an Authorized Inspector within the last 6 months, the seller must deliver this to the buyer within 7 days of offer acceptance.
When local ordinances call for documentation, either 4B(3) or 4B(4) will be checked.
Some municipalities will require proof before close of escrow, and others will not. If the law does not demand proof prior to the exchange, as in 4B(3), the buyer is obliged to comply with all requirements after the close of escrow. If the law demands delivery of proof prior to the close of escrow, 4B(4) states that the seller must provide it within 7 days of acceptance if documentation is already secured, or 5 days prior to close of escrow if the seller is not yet in possession of the certificate of compliance.
Becoming familiar with local vegetation management regulations is key. Buyers and sellers should know who will be required to obtain documentation and when. And that’s especially true when the law calls for prerequisites to the close of escrow. Inspectors may be busy and unable to review the property immediately, or worse yet – if the property fails the inspection then you may need to book professionals to bring things up to code and then schedule a second inspection before you can close! So prepare ahead of time and look up the local regulations.
Lastly, 4B(5) will be completed with the name and contact information for the local agency with documentation of compliance from the seller if either 4B(2) or 4B(4) is checked. This is provided so that if the buyer needs a copy of the last defensible space compliance papers, they will have the information needed to get it.
5. Fire Hardening and Defensible Space Final Inspection Report
Just above the signatures is tiny paragraph 5 with room for the seller to include a Final Inspection Report. When work is done on a house, such as repairs, alterations, and additions, owners are usually required to obtain a permit before construction begins, and a final inspection report, aka finals, after completion (I have more on that in another article). This document only requires the disclosure of finals in accordance with California’s Government Code Section 51182 showing further fire risk reduction.
The referenced code covers dwellings and occupied structures within fire hazard zones that are newly constructed or rebuilt after damage by fire, and which comply with fire-hardening regulations for their zone. Insurers of the property may require a copy of this document, so it’s important for new owners to get a copy of the finals. That said, I don’t predict we will see this box checked very often.
So Why Should We Care?
Some sellers may be obligated to complete this form, but it can also be a voluntary disclosure. This form can alert buyers if the property is at greater risk of sever fire hazard, and when it may be subject to specific zoning ordinances. It can also be used by both sellers and buyers to identify features that are more vulnerable to fire hazards, and where the structure may benefit from improvements. And it may transfer important documents that may be required by insurers of the property.
Personally, and as a homeowner, I’ll be using it as a checklist to figure out how I can update my home to improve protections against a wildfire threat! (And actually, something not on that list above isn’t a bad idea, either: fire resistant paint.)