The new law only requires that sellers disclose if they are not in compliance – but most buyers will expect sellers to bring their house into compliance before close, won’t they?
California law requires property owners (for properties built before 1994) to install water-conserving plumbing fixtures by 2017 for single-family properties and by 2019 for other properties ). Additionally, if a property is altered or improved after 2014, then water-conserving plumbing fixtures must be installed as a condition of final permit approval. (Cal. Civ. Code section 1101.4)
In 2012 the Transfer Disclosure Statement was expanded to include a check box for water-conserving plumbing fixtures. As explained in the TDS itself, the check box does not create a point of sale requirement. (Cal. Civ. Code section 1102.6.)
Beginning in 2017 a seller of a single-family property will also be required to disclose whether the property is in compliance with the law. This same disclosure requirement will apply to other types of properties beginning in 2019. Even then, the law creates no point of sale requirement. (Cal. Civ. Code section 1101.4 and 1101.5.)
Q 1. What is the purpose of the water conservation law?
A The legislature thinks that water conservation is a cost effective approach to the challenges created by not having enough water. Those challenges include future economic health; environmental health; growing urban areas; water reliability; waste water treatment; energy and other resource costs; and protecting and restoring aquatic resources. All of these issues were cited as reasons behind this effort to promote water conservation.
Q 2. Does the water conservation law create any point of sale requirements?
A No. There is nothing in the law that requires the installation of water-conserving fixtures as a condition of sale.
Q 3. If there are no point of sale requirements, then what is required?
A The law will require owners of real property to install water-conserving fixtures simply because they own the property regardless of whether they are selling it. The requirement for installation is not immediate, but will take effect in later years depending on the type of property or whether improvements are made. See questions 15 and 16 below.
Q 4. What does the law require a seller to disclose regarding water conservation plumbing fixtures?
A Presently, the law only requires the seller to check the box on the TDS as to whether there are water conserving plumbing fixtures. In later years, the law will require a seller to disclose to the buyer the requirement of water conserving plumbing fixtures and whether the real property has any noncompliant fixtures. The latter disclosure requirement is not immediate but will take effect in later years depending on the type of property or whether improvements are made. See questions 15 and 16 below.
Q 5. The TDS was changed to include a check box asking if the property has any water-conserving plumbing fixtures. Does that make it a point of sale requirement?
A No. In fact the TDS box has an asterisk to the second page that says, “Installation of a listed appliance, device, or amenity is not a precondition of sale or transfer of the dwelling.” (Cal. Civ. Code section 1102.6.)
Q 6. If the seller checks the box indicating that there are some water-conserving plumbing fixtures, is he or she representing that the fixtures are in compliance with this law?
A No. The TDS specifically says, “Fixtures in this dwelling may not comply with Section 1101.4 of the Civil Code.” (Cal. Civ. Code section 1102.6.)
Q 7. What is the definition of “water-conserving plumbing fixture”?
A Water-conserving plumbing fixture means any fixture that is in compliance with current building standards applicable to a newly constructed real property. (Cal. Civ. Code section 1101.3.)
Q 8. What is the definition of “noncompliant fixture”?
A The law calls for installation of water-conserving plumbing fixtures only when the existing plumbing fixtures are “non-compliant.” Noncompliant plumbing fixture means (1) any toilet manufactured to use more than 1.6 gallons of water per flush (2) any urinal manufactured to use more than one gallon of water per flush (3) any showerhead manufactured to have a flow capacity of more than 2.5 gallons of water per minute (4) any interior faucet that emits more than 2.2 gallons of water per minute. (Cal. Civ. Code section 1101.3.)
Q 9. Does the water conservation law apply to all types of property?
A No. The law only applies to property built and available for use on or before January 1, 1994. (Cal. Civ. Code section 1101.2.)
Q 10. Why does it only apply to buildings built before January 1, 1994,?
A Under federal law, all residential toilets manufactured after January 1, 1994 must use no more than 1.6 gallons per flush. In California ultra-low flush toilets have been required in all new construction since January 1, 1992.
Q 11. When must the water-conserving fixtures be installed?
A It depends on what kind of property you own, and whether you make improvements. The law sets up three categories: “single-family residential real property,” “commercial real property,” and “multifamily residential property.”
Q 12. What is a “single-family residential” property?
A A single-family residential property means any real property that is improved with, or consisting of, a building containing not more than one unit that is intended for human habitation. Therefore a condo, even a single condo occupied by only one family, is not a single-family residential property under this law. (Cal. Civ. Code section 1101.3.)
Q 13. What is a “multifamily residential real property”?
A A multifamily residential property means any real property containing more than one unit that is intended for human habitation. This would include the residential portions of a mixed use property. (Cal. Civ. Code section 1101.3.)
Q 14. What is a “commercial real property”?
A Commercial real property means any property that is not in the above two categories and includes hotels and motels. (Cal. Civ. Code section 1101.3.)
Q 15. If I own a single-family residential property, what are the requirements and when do they take effect?
A Beginning January 1, 2017 all single family property owners will be required to replace noncompliant plumbing fixtures with water-conserving fixtures regardless of whether any improvements are made and whether or not the property is being sold.
Beginning January 1, 2017 a seller must disclose in writing to the buyer the requirement of water-conserving fixtures and whether the real property has any noncompliant fixtures.
However, if you do any improvement requiring a permit after January 1, 2014 on a single-family property, the permit will not be issued unless all noncompliant plumbing fixtures have been replaced with water-conserving fixtures. (Cal. Civ. Code section 1101.4.)