Why this matters: Learn common safety standard conditions and violations found on residential properties and how to provide terms to remedy safety issues in a real estate transaction.
Follow along with an audio reading of this article adapted as a chapter from our upcoming Real Estate Practice course update.
Disclosing noncompliant improvements
Consider an agent who solicits an owner of a one-to-four unit residential property as a client. The owner enters into a seller representation agreement employing the agent’s broker to locate a buyer, negotiate a purchase agreement and close a transaction to dispose of the owner’s property.
When entering into the representation agreement, the seller agent asks the seller to fill out a Transfer Disclosure Statement (TDS), noting any property defects. The seller is advised completion of the TDS needs to take place before the property is marketed for sale. [Calif. Civil Code §2079; See RPI Form 304]
On receipt of the seller-prepared and signed TDS, the agent conducts a visual inspection of the property. During the visual inspection, the agent observes several safety conditions they know do not meet current building codes which the seller did not note on the TDS. The agent notes these observations on the seller’s TDS before the agent signs the TDS.
The disclosure statement the seller and seller agent signed now reveals, in violation of current safety standards, the property’s:
- garage door closing mechanism is not equipped with an automatic reversing device;
- spa does not have a locking safety cover;
- pool does not have barriers restricting access;
- water heater is not anchored or braced; and
- security bars on the windows in one of the bedrooms do not have a release mechanism.
The seller agent prepares a marketing package which includes:
- the completed TDS; and
- all other seller disclosures and property reports.
The package is handed to prospective buyers and buyer agents who seek further information on the property.
At an open house held on the property by the seller agent, a visitor indicates they are interested in the property and asks for more information about it.
Here, by the visitor’s oral request for additional property information, negotiations have begun. Thus, as a prospective buyer, they are entitled to a complete set of disclosures from the seller or the seller agent — as soon as possible (ASAP) — and always before they enter into a purchase agreement with the seller.
The seller agent responds to the request by handing the prospective buyer the marketing package, sometimes called a backup package. The marketing package includes a copy of the TDS and, as a risk mitigation activity, a home inspector’s report for the buyer’s review.
Related video:
A demand to cure safety defects
Continuing our previous example, the prospective buyer or their buyer agent prepares a purchase agreement offer which they sign and submit to the seller agent for delivery to the seller. The purchase agreement includes the buyer’s acknowledgement of their receipt of the TDS and all other disclosures necessary for the transaction.
The purchase agreement offer does not contain a provision calling for the seller to correct any of the previously disclosed safety defects or to bring the property up to current building standards. The seller accepts the offer. Escrow opens to process the transaction.
However, prior to closing, the buyer becomes concerned about the existing safety defects. Also, local ordinances may require the seller or the seller agent to eliminate safety defects before issuing the buyer a certificate of occupancy.
The buyer demands the seller meet current safety standards by repairing, replacing or installing:
- an automatic reversing device for the garage door;
- a locking cover for the spa;
- barriers to restrict access to the pool;
- a brace or anchor on the water heater; and
- security bar release mechanisms.
The buyer claims the seller needs to cure the safety defects disclosed in the TDS by meeting current construction standards before the seller may require the buyer to close escrow on the sale.
The seller refuses to cure any of the defects, claiming the buyer needs to close escrow since:
- the buyer knew the defects existed before entering into the purchase agreement; and
- the seller did not agree to correct the defects and bring the property up to current building codes.
Is the seller able to cancel or enforce the purchase agreement when the buyer does not close escrow?
Yes! Because the seller agent promptly delivered the completed TDS, the buyer knew the precise condition of the property when the buyer set the price they agreed to in the purchase agreement.
Thus, the buyer agreed to acquire the property “as disclosed” in the seller’s TDS. The buyer was on notice of the defects prior to the agreement to buy the property and did not negotiate for the seller to cure the defects as a condition for paying the agreed price.
Related video:
Automatic garage doors
All automatic garage doors need an automatic reverse safety device which meets code. [Calif. Health and Safety Code §19890(a)]
In addition, garage door openers need a sensor which causes a closing door to open and prevents an open door from closing when interrupted. [Health & S C §19890(b)]
The safety standards for garage doors prevent children from becoming trapped under closing doors. Properties constructed before 1993 may not meet current safety standards when the garage door mechanics have not been replaced in that time.
Further, when a person services a residential garage door, they test whether the door reverses on contact with a two-inch high obstacle placed beneath the door.
When the door does not reverse, the repairperson places a warning sticker on the garage door stating the door does not reverse and does not comply with current safety standards. [Health & S C §19890(e)]
Child resistant pool barriers
A pool constructed at a single family residence (SFR) after 2018 complies with at least two of the following safety requirements:
- a surrounding fence or barrier at least 60 inches in height isolating the pool from access to the house;
- up-to-code removable mesh pool fencing with a self-closing and self-latching gate which is key lockable;
- an approved safety pool cover installed;
- an up-to-code surface motion, pressure, sonar, laser, or infrared swimming pool alarm installed which sounds when it detects accidental or unauthorized entrances into the water;
- exit alarms on all the doors of the residence providing access to the pool;
- a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor; or
- some other means of protection determined to be adequate by an approved testing laboratory as meeting safety standards. [Health & S C §115922]
These safety requirements do not apply to hot tubs or spas with locking safety covers.
Related FARM letter:
Shared public pools
Condominium and apartment projects do not need safety barriers for pools and spas as their projects are not SFRs. Pools in condos and apartments are public facilities.
However, condo projects and apartment buildings need to post signs indicating whether or not lifeguard services are available. Lifeguard services are not required, though owners of condo projects and apartment buildings who do not provide lifeguard services need to post a sign saying so. [Health & S C §116045]
Public pools and spas are environmental hazards to a user’s health and a public nuisance when the managers do not operate and maintain them in a sanitary, healthful and safe manner. [Health & S C §116040]
Local health inspectors may shut down pools and spas when they are a public nuisance. [Health & S C §116060]
Water heaters
All existing residential water heaters are anchored, braced or strapped to prevent displacement due to an earthquake. Whether the water heater is anchored, braced or strapped is noted by the seller in the TDS. [Health & S C §19211(a)-(b)]
When a prospective buyer receives the TDS before the buyer and seller enter into a purchase agreement and the TDS notes the water heater is not in compliance with safety standards, the prospective buyer has agreed to accept the property with the defect, unless a provision to the contrary is included in an addendum to the purchase agreement.
Related FARM letter:
Residential security bars
Security bars on residential property need to have release mechanisms for fire safety reasons.
However, the release mechanisms are not required when each bedroom with security bars contains a window or door to the exterior which opens for escape purposes. [Health & S C §13113.9]
Related article:
Smoke detector compliance
Smoke alarms approved and listed by the State Fire Marshal (SFM) are required in all residential properties in California. [Health & S C §13113.7]
Installation of a smoke alarm system, whether battery-powered or hard-wired, needs to:
- display the date of manufacture;
- provide a place where the date of installation is written; and
- incorporate a hush feature. [Health & S C §13114(b)(3)]
Additionally, all battery-operated smoke alarms need a non-replaceable battery which lasts at least ten years. [Health & S C §13114(b)]
Smoke alarm enforcement is triggered:
- when a residential property owner seeks a building permit for alterations, repairs or additions costing more than $1,000, at which time the owner must provide proof operable SFM-approved smoke alarms are in place for the building permit to be issued [Health & S C §13113.7(a)(2)];
- on the sale of an SFR [Health & S C §13113.8(b)-(c)]; and
- when a new tenancy is created for a residential rental property. [See RPI Form 550 and 551 §7.2; Health & S C §13113.7(d)(2)(B)]
Operable hardwired and battery-operated smoke alarms approved when installed are considered compliant and need not be replaced. However, when a smoke alarm no longer functions, the replacement smoke alarm must meet current requirements. Local ordinance may require sooner replacement. [Health & S C §§13113.7(a)(4), 13113.7(d)(3)]
When an owner installs an SFM-approved fire alarm system with smoke detectors on the property, smoke alarms are not necessary. However, a fire sprinkler system does not exempt a residential property owner from installing a smoke alarm system. [Health & S C §13113.7(a)(5)]
Related article:
Risk management practices by the sellers agent in a declining market
Carbon monoxide detector installation
Working carbon monoxide detectors are required in every housing unit that has a:
- fossil-fuel-burning appliance;
- fireplace; or
- attached garage. [Health & S C §17926]
Carbon monoxide detectors are placed:
- outside each bedroom;
- on every occupiable level of the housing unit, including basements; and
- within bedrooms, when a carbon monoxide source is located within the room or its attached bathroom. [2025 California Fire Code §915.2.1]
Owners selling any residential property with the applicable features are required to have operable carbon monoxide detectors installed. [Health & S C §17926; See RPI Form 304]
However, when an owner does not comply with this requirement, the transfer of title is still valid. [Health & S C §17926(d)]
Residential landlords are responsible for installing working carbon monoxide detectors in every unit that has fossil-fuel appliances, a fireplace or an attached garage. Landlords are to maintain the detectors while tenants are to notify the landlord of any inoperable detectors. When the landlord is notified, the landlord is to replace the detector. [Health & S C §§17926, 17926.1]
Related FARM letter:
