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)



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          "[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  
                                                                      



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              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  
                                                                      



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            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,  
                                                                      



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          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.   
                                                                      



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          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"
                                                                      



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             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
                                                                      



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           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)

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