Fact Pattern: You are the listing agent for a pending sales transaction for a home built before 2010. The Home Fire Hardening Disclosure (HHDA) is legally required for homes built before 2010 that are located in either a very high or high fire hazard severity zone. According to the Natural Hazard Disclosure Statement (NHD), this particular house is not located in a fire zone identified by the NHD. The buyer’s agent is nevertheless asking that the seller provides an HHDA after checking the box in paragraph I.3. What paragraph I.3. of the HHDA says is that the property is in a very high or high fire zone, unless the seller checks a box indicating that the property is not in those fire zones.

Multiple Choice Question: What should you do? Pick the best answer:

A. Ask the seller to complete the HHDA if the home is built before 2010.
B. Ask the seller to complete the HHDA if the home is built before 2010 and located in either a very high or high fire hazard zone.
C. Ask the seller to complete the HHDA if the home is built before 2010 and located in a fire zone identified on the NHD.
D. Any of the above. 

Answer: The best answer is A. As background, the HHDA is causing a lot of confusion among agents, including when to get the HHDA and how to complete it.

When to Get an HHDA: What the law requires does not always coincide with what our practice dictates. For the HHDA, the law only requires disclosure if a home is built before 2010 and located in a very high or high fire hazard zone. However, by inserting what is essentially a “yes” or “no” question in paragraph I.3., the drafters of C.A.R.’s HHDA form clearly intend for agents to get sellers to complete the HHDA form as long as the home is built before 2010, and regardless of whether the home is in any fire zone. We should follow C.A.R.’s lead because, as agents, we do not want to be responsible for determining whether a home is located in any fire zone. We want the seller to be the one who answers that question, and we want documentation showing that we asked the seller to answer that question. Hence, between Answers A and B, Answer A is the better answer for our day-to-day practice.

That a C.A.R. form requires a seller to say “no,” even though that’s not what the law requires, is nothing new. After all, a seller must answer “yes” or “no” to 11 questions on the first page of C.A.R.’s Seller Property Questionnaire (SPQ). Yet, the underlying law or contractual provision pertaining to those questions generally do not require “no” answers.

Identifying Homes in HHDA Fire Zones: Additional confusion arises for sellers tasked with determining whether their home is located in an HHDA fire zone. The HHDA fire zones are not exactly the same as the NHD fire zones, so Answer C is wrong. The 2 HHDA fire zones are the “very high fire hazard zone” and the “high fire hazard zone.” The 2 fire zones on an NHD Statement are the “very high fire hazard zone” (same as the HHDA) and the “wildland area” (not the same as the HHDA). However, some NHD companies may disclose whether a home is in a “high fire hazard zone” elsewhere on their reports. Alternatively, sellers can look up their property address on Cal Fire’s Fire Hazard Severity Zone map.

For more information, C.A.R. has a Home Hardening Q&A (password-protected for C.AR. members).

-Thank you to Caitlin Church (La Jolla Office) for suggesting this week’s legal tip.

Copyright© 2021 Berkshire Hathaway HomeServices California Properties (BHHSCP). All rights reserved. Any unauthorized reproduction or use of this material is strictly prohibited. This information is believed to be accurate as of February 1, 2021. It is not intended as a substitute for legal advice in individual situations, and is not intended to nor does it create a standard of care for real estate professionals.