BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 183 Senator Lowenthal As Amended April 13, 2009 Hearing Date: April 28, 2009 Civil Code; Health and Safety Code SK:jd SUBJECT Residential Building Safety DESCRIPTION This bill would require that a carbon monoxide device be installed in existing dwellings intended for human occupancy that have a fossil fuel burning appliance, fireplace, or an attached garage. This bill would provide that the exclusive remedy for failure to install a device is actual damages not to exceed $100, exclusive of any court costs and attorney's fees. This bill would revise the statutory Real Estate Transfer Disclosure Statement to require the seller of a one-to-four residential property or manufactured home to make certain disclosures regarding carbon monoxide devices, smoke detectors, and water heaters. This bill would require the owner of a rental dwelling unit to maintain carbon monoxide devices in the unit. (This analysis reflects author's amendments to be offered in committee.) BACKGROUND On November 27, 2007, the Senate Committee on Transportation and Housing held an informational hearing entitled "Preventing Carbon Monoxide Poisoning." The purpose was to hear from experts on the dangers of carbon monoxide poisoning and consider whether California should require the installation of carbon monoxide detectors in dwellings. The committee staff made several findings upon conclusion of the hearing, including that (more) SB 183 (Lowenthal) Page 2 of ? "[c]arbon monoxide poisoning is generally preventable through better education of consumers and improved maintenance of combustion appliances. When carbon monoxide does enter a home, carbon monoxide devices can and do alert the residents and prevent or significantly decrease the severity of a poisoning." According to the author, the 2009 International Residential Code requires that carbon monoxide detectors be installed in new construction dwelling units with fuel-fired appliances or attached garages. The updated code also requires detectors to be installed in existing homes that have fuel-fired appliances or attached garages when work requiring a building permit occurs. The author indicates that the Department of Housing and Community Development is currently considering adopting these requirements in California for newly constructed one and two unit dwellings. Last year, the author of this bill introduced a similar measure, SB 1386 (Lowenthal, 2008). That bill, which would have required that carbon monoxide devices be installed in both new construction and existing dwelling units, was vetoed by the governor. In order to address the concerns in the governor's veto message, SB 183 would apply only to existing housing and not to new construction. This bill was approved by the Senate Committee on Transportation and Housing on April 21, 2009. CHANGES TO EXISTING LAW 1. Existing law requires a transferor to deliver a statutory transfer disclosure statement, and other disclosures, as soon as practicable before transfer of title, or close of escrow, when transferring real property, except in certain cases (Civ. Code Sec. 1102.3(a)); and manufactured homes or mobilehomes, provided that the sale or lease with an option to purchase involves an agent. (Civ. Code Sec. 1102.3a(a)(1).) Under existing law, a seller of a single-family dwelling must disclose to a transferee that he or she has installed an operable smoke detector in the home as required by law. (Health and Saf. Code Sec. 13113.8.) This bill would revise the statutory transfer disclosure statement as follows: 1) requires the seller to check off whether or not the property has one or more carbon monoxide devices; 2) adds a footnote to the statement advising buyers that installation of a carbon monoxide device is not a SB 183 (Lowenthal) Page 3 of ? precondition of sale; and 3) requires a seller to certify, as opposed to checking off as under existing law, that the property is in compliance with laws requiring smoke detectors and the bracing of water heaters. 2. Existing law requires that smoke detectors be installed in all single-family dwellings that are sold. (Health and Saf. Code Sec. 13113.8.) Existing law provides that no transfer of title is invalidated on the basis of a failure to comply with this requirement and the exclusive remedy for failure to comply is an award of actual damages not to exceed $100, exclusive of any court costs and attorney's fees. (Id.) Existing law provides that a transfer shall not be invalidated solely because any person failed to comply with the transfer disclosure requirements described above. However, any person who willfully or negligently violates or fails to perform a required duty is liable in the amount of actual damages suffered by a transferee. (Civ. Code Sec. 1102.13.) This bill would require that a carbon monoxide device be installed in existing dwellings intended for human occupancy that have a fossil fuel burning appliance, fireplace, or an attached garage beginning January 1, 2011 for single-family dwelling units and January 1, 2012 for all other units. This bill would provide that failure to install a carbon monoxide device is an infraction. Under the bill, an owner must first be given a 30-day notice to correct the violation and, if it is not corrected within that time period, the owner is subject to a fine of $200 for each offense. This bill would provide that the exclusive remedy for failure to install a device is actual damages not to exceed $100, exclusive of any court costs and attorney's fees and no transfer of title shall be invalidated on the basis of a failure to install a carbon monoxide device as required by the bill. 3. Existing law requires an owner of rental property to install a smoke detector in a dwelling unit and permits the owner or his or her agent to enter a unit to install, maintain, repair, or test the detector. A tenant must notify the owner of an inoperable smoke detector and the owner must correct any deficiencies. (Health and Saf. Code Sec. 13113.7.) Under existing law, a landlord may enter a dwelling unit only with SB 183 (Lowenthal) Page 4 of ? reasonable notice and during normal business hours except in cases of emergency or where the tenant consents to an entry during other than normal business hours at the time of the entry. (Civ. Code Sec. 1954.) This bill would require a property owner to maintain carbon monoxide devices in a rental dwelling unit and would require that the devices be operable at the time the tenant takes possession of the unit. This bill would require a tenant to notify the landlord if the tenant becomes aware that the device is inoperable or deficient and would require the landlord to correct the reported inoperability or deficiency. This bill would provide that a landlord is not in violation if he or she has not received the notification from the tenant. This bill would provide that a landlord may enter the dwelling unit for the purpose of installing, repairing, testing, and maintaining carbon monoxide devices pursuant to the requirements of Civil Code Section 1954. COMMENT 1. Stated need for the bill The author writes that "[c]arbon monoxide (CO) is the leading cause of accidental poisoning deaths in the United States. Carbon monoxide is an odorless, colorless, deadly gas. The most effective safety device available to reduce injuries and fatalities related to carbon monoxide poisoning is a CO alarm. SB 183 (Lowenthal) will help to ensure California's families are protected from carbon monoxide poisoning." The author further writes: The California Air Resources Board has determined that 30-40 "avoidable deaths" occur just in California each year, on average, due to unintentional carbon monoxide poisoning. Additionally, there are 175-700 "avoidable" emergency room visits and hospitalizations in California alone. 2. Exclusive remedy for violation of the bill's requirement that carbon monoxide devices be installed in dwelling units; transfer of title not affected This bill would provide that the exclusive remedy against a property owner who fails to install carbon monoxide devices in a dwelling unit is an award of actual damages not to exceed $100, SB 183 (Lowenthal) Page 5 of ? exclusive of any court costs and attorney's fees. The bill would further provide that no transfer of title is invalidated on the basis of the failure to comply with the bill's installation requirements. The language of these provisions is mirrored on Health and Safety Code Section 13113.8, which requires that smoke detectors be installed in all single-family dwellings that are sold. The language also relates only to the obligation of the homeowner to install a carbon monoxide device. The author has indicated that the intent of the "exclusive remedy" language in the bill is to ensure that a purchaser cannot sue the former homeowner for failure to install a carbon monoxide device and seek thousands of dollars in relief when the device itself is generally available for $20-$40. In order to ensure that other remedies for injury are not inadvertently affected, the committee should consider amending the bill to include a savings clause as follows: Suggested amendment: On page 17, after line 40 insert "Nothing in this section is intended to affect any duties, rights or remedies otherwise available at law." 3. Carbon monoxide detectors required in rental property and other dwelling units "intended for human occupancy" This bill would require that carbon monoxide devices be installed in "dwelling units intended for human occupancy" which is defined to include, among other things, a single-family dwelling, duplex, unit in a multiple-unit building (e.g., apartment building), condominium, hotel, or motel. An owner of such a dwelling unit who rents or leases space to a tenant must maintain the device and is authorized to enter the unit to install, repair, test, or maintain it. A tenant would be required to notify the landlord if he or she becomes aware that the carbon monoxide device is inoperable or deficient and the landlord is then required to correct the reported inoperability or deficiency. This bill would provide that a landlord is not in violation if he or she has not received the notification from the tenant. An owner who wishes to enter the unit must do so in accordance with the requirements of Civil Code Section 1954 which require a landlord to give a tenant reasonable notice (presumed to be 24 hours) before entering the unit and to only enter during normal business hours, unless the tenant consents at the time of entry. SB 183 (Lowenthal) Page 6 of ? These provisions are similarly mirrored on existing law's requirements that owners of rental properties install operable smoke detectors. Tenants are similarly required to notify owners of inoperability and owners may enter the unit as described above. 4. Transfer disclosure statement (TDS) This bill would revise the statutory TDS used by a seller to make certain disclosures to require that the seller check off whether or not the property has one or more carbon monoxide devices. The bill would also provide that installation of the device is not a precondition to sale. As a result, by January 1, 2011, all homeowners must install carbon monoxide devices in their homes, regardless of whether the home is sold or not. This approach is different than the one provided for under existing law with respect to smoke detectors. That law requires every home that is sold to have an operable smoke detector and requires a seller to provide a buyer with a written statement indicating compliance with that requirement. 5. Author's amendments The author agreed to take the following technical amendments when the bill was heard in the Senate Committee on Transportation and Housing on April 21, 2009 but because of timing requirements, these amendments need to be taken in this committee: a) On page 16, line 20 after "2075" insert "or successor standards" b) On page 17, line 8 strike "17926.3" and insert "17926.2" c) On page 18, lines 7-8 strike ", efficiency dwelling unit, guest room, and suite" and insert "intended for human occupancy" d) On page 18, line 10 strike "single station" e) On page 18, line 28 strike "17926.3" and insert "17926.2" f) On page 18, line 30 strike "17926.3" and insert "17926.2" g) On page 18, lines 32-33 strike "consistent with the intent of the Carbon Monoxide Poisoning Prevention Act of 2009" and replace with "to require the installation of carbon monoxide devices in dwellings intended for human occupancy" SB 183 (Lowenthal) Page 7 of ? h) On page 19, strike lines 5-9 and insert "(b) If the California Building Standards Commission adopts or updates building standards relating to carbon monoxide devices, the owner or" i) On page 19, line 11 strike "regulations or" The author would also like to make the following technical and clarifying amendments: a) On page 15, between lines 36 and 37, insert: (g) The Homeowners' Guide to Environmental Hazards referenced in Business and Professions Code Section 10084 is an important educational tool and should include information regarding carbon monoxide. It is the intent of the Legislature that when the booklet is next updated as existing resources permit, or as private resources are made available, it be updated to include a section on carbon monoxide. b) On page 17, line 8 strike "17926.3" and insert "17926.2" c) On page 17, lines 16-17 strike "in accordance with the manufacturer's instructions" d) On page 17, between lines 24-25 insert "(b) With respect to the number and placement of devices, an owner shall install carbon monoxide devices in a manner consistent with building standards applicable to new construction for the relevant type of occupancy or with the manufacturer's instructions, if it is technically feasible to do so." e) On page 17, line 25 strike "(b)" and insert "(c)" f) On page 17, line 33 strike "(c)" and insert "(d)" g) On page 17, line 38 strike "(d)" and insert "(e)" h) On page 18, line 4, strike "space" and insert "the dwelling unit" i) On page 19, line 10, after "agent" insert "who has installed a carbon monoxide device as required under Sections 17926 and 17926.1" Support : Kidde; Carbon Monoxide (CO) Safety and Health Association (COSHA); State Association of Electrical Workers; California Industrial Hygiene Council Opposition : None Known HISTORY Source : California Coalition for Children's Safety and Health/California State Firefighters Association SB 183 (Lowenthal) Page 8 of ? Related Pending Legislation : None Known Prior Legislation : SB 1386 (Lowenthal, 2008) would have required that carbon monoxide devices be installed in both new construction and existing dwelling units. The bill was vetoed. Prior Vote : Senate Committee on Transportation and Housing (Ayes 8, Noes 3) **************