The New Fire Hardening and Defensible Space Advisory, Disclosure, and Addendum
By: Jeremy L. Olsan, Olsan Law, Inc.,
General Counsel to the Marin Association of REALTORS®
Several Association members have asked recently about how to approach certain issues arising under home hardening and defensible space disclosure and compliance laws which were codified by the enactment of Assembly Bill 38 in 2019*. Your questions pertained to a seller’s duty to disclose whether or not the property is in a “high” or “very high” fire severity zone and if the answer is “yes”, whether or not the seller has complied with any local mandates, if any local agencies have adopted them. You have also asked how the seller is to know whether there are any such local mandates.
The answers you are looking for are in two documents released in the June, 2021 C.A.R. forms update. The first document is the updated STATEWIDE BUYER AND SELLER ADVISORY (form SBSA), and the second document is the new FIRE HARDENING AND DEFENSIBLE SPACE ADVISORY, DISCLOSURE, AND ADDENDUM (form FHDS).
The first thing you need to do is to read these documents carefully and be sure you understand them. The second thing you should do is provide these documents, each in a timely manner, to your seller and buyer. C.A.R. has provided several notices to members regarding the updates to these forms.
- STATEWIDE BUYER AND SELLER ADVISORY (form SBSA). You should be giving the SBSA to your sellers when you first talk about taking a listing, and you should be giving it to your potential buyers when you first have contact with them.
If you send it via DocuSign you’ll have proof your client received it. However, that’s only one part of what you should be doing: in addition to having already read and understood what’s in the SBSA, you should be keeping current on changes to it and all the C.A.R. forms you use. Only if you already know what is in the SBSA will you realize that there are answers to most of your client’s questions there. These are answers that have been vetted and sometimes argued over by C.A.R.’s attorneys, members of the Standard Forms Advisory Committee, and by members of the C.A.R. Legal Affairs Forum, like me. You will no longer have to wonder what to tell a client when they as you “Should I initial the arbitration clause in the RPA?” or when the seller asks “What are my obligations around fire hardening and defensible space?”. The answers are in the SBSA.
So, when those questions arise email them the SBSA again, and direct them to the paragraph(s) that provide the answers if you know which of them apply. There may be more than one. If you are concerned that you cannot identify all of applicable SBSA paragraphs, tell the client which one(s) you know contain helpful information, then also let them know there may be other paragraphs in it that they could find relevant, and suggest they read the whole thing even if they have done it the first time you provided the form. Keeping that email in your transaction file could turn out to be very helpful to you and to your broker.
The SBSA discusses fire hardening and defensible space and high and very high fire hazard severity zones at paragraph 14 on page 5. I have highlighted some of the key language:
As you can see, this paragraph 14 of the SBSA tells your seller and buyer exactly where to go to find out if the property is in a high or very high fire severity zone: https://egis.fire.ca.gov/FHSZ/ . The parties should also be able to make this determination by looking at the Natural Hazard Disclosure provided one has already been obtained.
If using the state’s website, the seller just enters their address, and if they are in a high or very high fire hazard severity zone then all the seller needs to do is to contact their local fire department or fire protection district and ask if there are any additional defensible space or weed abatement ordinance requirements that go beyond the state law. Often times this is as easy as the seller or buyer looking on the city, county, or fire protection district website.
Doing these tasks is not the agent’s job any more than it is the agent’s job to look at the Megan’s Law database to see if any registered sex offenders live nearby. It is the seller’s job and the buyer’s job to read these documents, and it is the agent’s job to remind the seller and the buyer whenever a question comes up that is addressed in the SBSA or MAR advisory where their client can go to find the answer, or information that will lead them to the answer.
That is why C.A.R. in the SBSA and MAR in its Disclosures and Disclaimers Advisory provide links and phone numbers to reliable sources of information available to sellers and buyers to investigate. It is also why both the SBSA and MAR disclosure advisories say “Brokers do not have expertise in this area” and similar language. That same language is there to tell your clients where to look for answers, and it should be a reminder to you that you should always defer to the SBSA and local Association disclosure advisories when these issues arise. You can only do this if you are regularly doing your homework, by reading and understanding what is in those documents, and re-reading them whenever they are revised.
- FIRE HARDENING AND DEFENSIBLE SPACE ADVISORY, DISCLOSURE, AND ADDENDUM (form FHDS). As with many C.A.R. forms, if you read the form, it tells you how and when to use it and often what the parties must do. I have highlighted some of these provisions in the first paragraph of the form, but please read the entire form carefully now, before you start using it.
Note the language reminding the seller that they may want to use this form even if they do not have to, because the information it calls for may be a “material fact” to a potential buyer. Examples include paragraph 3.B of the form. As you review this, you should think about what you are required to disclose when you fill out your Agent’s Visual Inspection and Disclosure (AVID) form, since many of these items are things you might see when you perform your “reasonably competent and diligent physical inspection of reasonably and normally accessible areas” of the property under California Civil Code Section 2079: