Replacement And Disclosure Of Plumbing Fixtures Required

Written by Posted On Monday, 05 December 2016 10:53

If they haven't done so already, California owners of single-family residences have slightly less than thirty days to replace any noncompliant plumbing fixtures on their property with water-conserving ones.

This requirement is the result of a state Senate bill (SB 407, Padilla) that was signed into law in 2009. The bill spelled out a number of requirements and restrictions going forward from the time of its passage until its last mandate -- dealing with multi-family and commercial property -- that takes effect January 1, 2019.

So, what are the noncompliant plumbing fixtures that need to be replaced? That is spelled out in section 1101.3(c) of the California Civil Code.

"(c) ‘Noncompliant plumbing fixture' means any of the following:
(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.

Of course, many homes are already compliant. Federal law has required such fixtures be sold since 1992.

SB 407 also contained a disclosure requirement that comes into effect January 1, 2017. It is stated at section 1101.4(c) of the Civil Code. "On and after January 1, 2017, a seller or transferor of single-family residential real property shall disclose in writing to the prospective purchaser or transferee the requirements of subdivision (b) [that all noncompliant fixtures be replaced] and whether the real property includes any noncompliant fixtures."

The required disclosure has two parts. First, the seller -- not the agent -- must tell the buyer that the law requires that the property have compliant plumbing fixtures. Secondly, the seller must tell the buyer whether the property has any noncompliant fixtures.

Currently, there is some potential for confusion and/or uncertainty here.

Probably the most important matter has to do with point-of-sale requirement. That is to say, "Does the law mean that escrow cannot close unless all noncompliant fixtures are first replaced with compliant ones?" No. As a 2012 article (Water-Conserving Plumbing Fixtures) provided by the California Association of REALTORS®(CAR) states, "There is nothing in the law that requires the installation of water-conserving fixtures as a condition of sale."

Note, though, that some local jurisdictions (counties or cities) may have their own ordinances dealing with these matters.

More than a few people have noted that the existing statutory disclosure document (the Real Estate Transfer Disclosure Statement, or, commonly, TDS) already contains a question regarding Water-Conserving Plumbing Fixtures. It is the last "check box question" in the three column array at Section II A. of the TDS. The box is to be checked if the subject property has water-conserving plumbing fixtures. Does checking the box suffice to meet the new disclosure requirement at Civil Code §1101.4(c)? No.

For one thing, the TDS check box format does not meet the requirement that the seller inform the buyer of the law requiring compliant fixtures. Secondly, it does not inform the buyer of the existence of any noncompliant fixtures. (Suppose you had a low-flush toilet, but not a water-conserving shower head. How would that information be conveyed via the check box format?)

At this point, CAR, through its Standard Forms Advisory Committee has proposed to add a question to its commonly used, but not legally mandated, Seller Property Questionnaire (SPQ). This would ask the seller, in a yes-or-no format, if he or she is aware of "Plumbing fixtures on the Property that are non-compliant plumbing fixtures as defined by Civil Code Section 1101.3."

While this would satisfy part of the new disclosure requirement, it would not comply with the requirement that the purchaser be told that the law mandates that all such fixtures be replaced.

To do a proper job of making the required disclosure, it is probably going to be necessary for brokerages, and perhaps local REALTOR® associations, to craft a separate disclosure form.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way. His email address is This email address is being protected from spambots. You need JavaScript enabled to view it..

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Bob Hunt

Bob Hunt is a former director of the National Association of Realtors and is author of Ethics at Work and Real Estate the Ethical Way. A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at [email protected].

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