Agents and their clients may be experiencing some difficulties understanding and completing C.A.R.’s Fire Hardening and Defensible Space Disclosure and Addendum (FHDS) (revised June 2022). Both the FHDS form and the underlying laws pertaining to the form are complicated. Below are comprehensive guidelines addressing the legal and practical issues that are commonly raised by the FHDS. 

1. FHDS in a Nutshell: The FHDS is generally a required disclosure for a seller of a property with one-to-four residential units that is located in a high or very high fire hazard severity zone. A seller who is exempt from the TDS requirement is also exempt from the FHDS requirement (e.g., probate and most trust transactions). If the FHDS is required, sellers and listing agents are strongly encourage to include the FHDS upfront in the seller’s counter offer (see Item #12 below). As for completing the FHDS, if the property is built before 2010, the seller should complete paragraphs 2 and 3. For a newer home built in 2010 or later, the seller should complete paragraph 3 only (and not paragraph 2). At the present time, most sellers will fall under the default language provided in paragraphs 3B(1) and 3C(1), in which case, they should not check any of the boxes in paragraphs 3B or 3C.

2. FHDS Form Addresses 2 Separate But Similar Laws: Part of the confusion with the FHDS form stems from the fact that it addresses 2 separate but similar fire prevention laws – fire hardening and defensible space. First, effective January 1, 2021, California enacted a law generally requiring certain sellers in fire-prone areas with homes built before 2010 to disclose any known “fire hardening” vulnerabilities (California Civil Code section 1102.6f) (see Item #8 below). Second, effective on July 1, 2021, another California law generally requires sellers in fire-prone areas to comply with certain “defensible space” requirements (California Civil Code section 1102.19) (see Item #9 below). Both laws were enacted as part of Assembly Bill 38 (AB 38) in the 2019-20 legislative session.

3. Why These New Laws? Wildfires have ravaged California in recent years, causing unprecedented incidents of death, destruction, and other losses. Californians must take significant fire-fighting measures to prevent yet more destruction and loss, given our current drought conditions, dry vegetation, limited resources, and climate and other concerns.

4. What is Fire Hardening? The term, “fire hardening,” generally refers to the construction of certain home features, and the use of fire-retardant building materials, to help prevent fire. Effective January 1, 2010, California updated its building code to implement stricter “fire hardening” building standards for new construction. The reason that the FHDS fire hardening requirements only apply to properties built before 2010 is because only the older pre-2010 homes may have the specified fire hardening vulnerabilities, such as excessive ventilation and untreated roof shingles.

5. What is Defensible Space? The term, “defensible space,” generally refers to a fire-resistant buffer zone on a piece of property that surrounds the house and other structures. “Defensible space” is a homeowner’s front line defense against wildfires, because the buffer zone stops or slows the spread of fire. It also protects structures from catching fire from flames and flying embers. Creating and maintaining defensible space generally involves brush clearance, vegetation management, trash removal, relocating combustible items, and other remedial measures.

6. Determining Whether a Property is in a High or Very High Fire Hazard Severity Zone: To determine the applicability of the FHDS, a seller of one-to-four residential units (who is not TDS exempt) must ascertain whether the seller’s property is located in a high or very high fire hazard severity zone. Many sellers know whether their own home is located in a fire-prone area. If not, they can obtain that information from, among other resources, their Natural Hazard Disclosure (NHD) company (see Item #7 below), fire insurance company, or fire department. They can also look up their property address at Cal Fire’s webpage at https://egis.fire.ca.gov/fhsz/ (click the binocular icon).

7. Does the One-Page NHD Statement Disclose High and Very High Fire Zones? No. The NHD Statement discloses whether a property is in a “very high fire zone,” but not “high fire zone.” As background, the NHD Statement is usually the front page of an NHD Report. The one-page NHD Statement has 6 sets of checkboxes indicating whether a property is located in any of 2 fire zones, 2 earthquake zones, and 2 flood zones. Although one of the 2 fire zones in an NHD Statement is for a “very high fire hazard severity zone,” the other one is for a “wildland area,” which is not the same thing as a “high fire hazard severity zone.” Some NHD providers, however, do indicate whether a property is in a “high fire hazard severity zone” elsewhere on their NHD reports.

8. What are the FHDS Fire Hardening Requirements (Paragraphs 1A, 2, and 4 of the FHDS)? The fire hardening requirements for sellers are pretty simple and straight-forward. The fire hardening law generally applies to a seller (subject to the TDS requirement) of a property with one-to-four residential units (including condos and mobilehomes), that is built before 2010, and located in a high or very high fire hazard severity zone. To comply with the home hardening law, a seller must generally do 3 things as set forth in the fire hardening section of the FHDS form as follows:

a. Notice (paragraph 2A): Give the buyer a special Notice about fire hardening as set forth in paragraph 2A of the FHDS;

b. Disclosure (paragraph 2B): Inform the buyer if the seller knows of certain fire hardening vulnerabilities by checking the “yes” or “no” boxes in paragraph 2B, such as excessive ventilation as specified, untreated roof shingles, and combustible materials nearby; and

c. Final Report (paragraph 4): In rare situations, a seller may have obtained a final inspection report showing compliance with fire hardening requirements, e.g. if the seller did major home improvements after 2009. If so, the seller should check the box in paragraph 4 of the FHDS and attach the report. If, however, the seller does not have the report, the seller can check a second box to indicate that fact, and in the blank space provided, insert where to get the report.

9. What Are the FHDS Defensible Space Requirements (paragraphs 1B, 3, and 4)? The FHDS defensible space law is a bit complicated and confusing. It generally applies to a seller (subject to the TDS requirement) of a property with one-to-four residential units (including condos and mobilehomes), regardless of year built, that is located in a high or very high fire hazard severity zone. Under this law, sellers must generally provide their buyer with documentation of compliance with defensible space requirements before close of escrow, but certain exceptions may apply. For one, under the statewide law, a seller can enter into a written agreement for the buyer to obtain the documentation of compliance within one year after close of escrow. Second, a local city or county may enact its own ordinance or law requiring a sale-related defensible space compliance statement. If it does, that local law will supersede the state law requirements. At the present time (June 2022), no such local law requiring a sale-related defensible space compliance statement has been brought to our attention for Southern California. However, such local laws are likely to be enacted in the near future. To complete the defensible space section of the FHDS form, see Item #15 below.

10. What Does Obtaining Documentation of Compliance Entail? To obtain documentation of compliance with defensible space requirements, a property owner must generally do all of the following: (1) Hire a governmentally-authorized inspector as defined to conduct a defensible space inspection of the property; (2) Schedule an appointment for the inspector to inspect the property; (3) Perform any brush clearance or other defensible space tasks required by the inspector; and (4) Have the inspector re-inspect the property, and issue documentation of compliance with defensible space requirements. Depending on the property and availability of authorized inspectors, the entire process may be fairly simple and straight-forward, or it may take a lot of time, effort, and money. More information about defensible space inspections is available on Cal Fire Department’s Defensible Space webpage at https://www.fire.ca.gov/dspace/ (and also click the link in the left-hand column for “Additional AB 38 Information”).

11. Sellers Generally Have an Easy Out: Under the statewide law, a seller is generally exempt from obtaining documentation of compliance with defensible space requirements before close of escrow if the seller enters into a written agreement for the buyer to comply with such requirements within one year after close of escrow. That contractual agreement for the buyer to comply with such requirements is not included in the C.A.R. Residential Purchase Agreement (RPA revised December 2021). Instead, the contractual agreement is set forth in the default language in paragraph 3C(1) of the FHDS. Sellers should generally shift the responsibility of compliance over to their buyers by written agreement to avoid potential problems with taking on the tasks themselves. One concern is that the defensible space compliance process may involve a lot of time, effort, and money (as explained in Item #10 above). Also, a seller may not be able to complete such tasks before the scheduled close of escrow date agreed to in the RPA. Another concern, among others, is that, under the RPA, a seller agrees that, at close of escrow, the property, including the landscaping and grounds, will be maintained in substantially the same condition as on the date of acceptance (see RPA paragraph 7B(1)(ii)). No exception is provided in the boilerplate language for complying with defensible space requirements. As a result, a seller who is forced to substantially alter the landscaping and grounds during escrow to obtain a defensible space compliance statement could end up in breach of the “substantially the same condition” requirement under paragraph 7B(1)(ii) of the RPA.

12. Sellers Should Include the FHDS Upfront in Their Counter Offer: To be safe, a seller and listing agent should seriously consider including the FHDS upfront with the seller’s counter offer (SCO or SMCO). Sellers routinely issue SCOs or SMCOs to their buyers anyway. Otherwise, if the seller waits to get the FHDS signed during escrow, the buyer could decide not to sign it. If a buyer refuses to sign the FHDS during escrow, the RPA merely allows the seller to serve a 2-day Notice to Buyer to Perform, and if the buyer still refuses during those 2 days, the seller’s contractual recourse is to cancel the agreement (see RPA paragraphs 11D and 11G(2)). Yet, it doesn’t make a lot of sense for a seller to wait to see whether a buyer will sign the FHDS during escrow, when the seller can simply resolve any potential issues upfront by requiring the buyer to sign the FHDS at contract formation. For example, a seller would not want to give a buyer with no contingencies an opportunity to refuse to sign the FHDS as a way to get out of a contract without losing the buyer’s deposit.

13. Mechanics of Getting FHDS Upfront: To add the FHDS upfront as discussed in Item #12 above, a seller can simply check the box for “Other” in the “Attached Documents” provision in paragraph 1D of the SCO (or paragraph 1E of the SMCO), and insert “FHDS” in the blank space provided. Be sure to also attach the FHDS to the SCO or SMCO. Additionally, in a buyer’s submitted offer, the buyer may have checked either one or both of the boxes under “Allocation of Costs” for the seller to pay for any Government-Required Point-of-Sale inspections, reports, and corrective/remedial actions (see RPA paragraph 3Q(5) and (6) in the Grid on page 3). Buyers commonly check those boxes for properties located in areas with local point-of-sale requirements, such as the City of Los Angeles’s 9A Report or the City of Ventura’s Sewer Lateral Inspection Requirement. To help ensure that a buyer will not try to argue that paragraphs 3Q(5) and (6) also pertain to a defensible space inspection, report, or compliance statement, a seller’s counter offer should, in an abundance of precaution, provide as follows under “Other Terms” in paragraph 1C of the SCO (or paragraph 1D of the SMCO):

“Concerning paragraphs 3Q and 11D of the RPA, Seller shall not pay for nor obtain any defensible space inspection or documentation of compliance before Close of Escrow. Buyer shall comply with such requirements after Close of Escrow (see attached FHDS).”

For a discussion of whether the defensible space compliance statement is a point-of-sale requirement, see Item #18 below.

14. Can a Seller Wait Until After Acceptance to Get the FHDS Signed? Yes; that’s up to the seller. But if a seller wants to wait until after contract acceptance to get the FHDS signed, you should, as the BHHS listing agent, keep a paper trail of that instruction from our seller. Simply inform the seller in writing (and get the seller’s written acknowledgment of receipt) that we have no ability to assure the seller that the buyer will actually sign the FHDS during escrow. Be sure to add that we strongly recommend that, before proceeding with the transaction, the seller consults with the seller’s own attorney or other professional concerning this matter as the seller deems appropriate.

15. Completing Paragraph 3 of the FHDS Form: Here are some guidelines for completing the defensible space section or paragraph 3 of the FHDS form:

a. Paragraph 3A: This paragraph asks whether the property is subject to a local vegetation management ordinance. The answer is usually “yes.” Most local cities and counties do have ordinances and laws generally requiring homeowners to engage in vegetation management, brush management, and other defensible space requirements (see also Item #16 below). Yet, just to be clear, neither the law nor the RPA specifically requires a seller to answer the question posed in paragraph 3A of the FHDS.

b. Paragraph 3B: Most sellers fall under the default language in paragraph 3B(1), because they are unaware as to whether their property complies with defensible space laws, and they do not have a compliance statement from within the last 6 months. Even sellers who may have cleared their brush at the beginning of the fire season may not know whether their property is still in compliance at the time of sale. If the seller is unaware of compliance and has no recent compliance statement, then paragraph 3B(1) applies, and the seller should not check either of the boxes in paragraph 3B(2) or 3B(3).

c. Paragraph 3C: As of June 2022, most sellers in current sales transactions will fall under the default language in paragraph 3C(1), because the local city or county has not passed an ordinance or other law requiring a seller or buyer to obtain a defensible space compliance statement (see also Item #16 below). Without any such local law, the parties fall under overarching California statewide law, which allows a seller and buyer to enter into a written agreement for the buyer to obtain a defensible space compliance statement within one year after close of escrow. If the default language in paragraph 3C(1) applies as described, the seller should not check any of the boxes for paragraph 3C(2) through 3C(6).

d. Paragraph 3D: If none of the checkboxes in paragraphs 3B and 3C are checked, as is the most common scenario, the seller need not complete paragraph 3D.

16. Important Distinction Between Different Defensible Space Laws: Perhaps a good way to understand the FHDS form is to make a distinction between 4 different types of defensible space laws. First, Law #1, there are California’s statewide general defensible space laws pertaining to homeowners. These laws have been existence for a long time. Second, Law #2, there is the newly-enacted California statewide defensible space law (also known as AB 38), which came into effect on July 1, 2021, and generally requires a seller in a fire-prone area to obtain a compliance statement, unless an exception applies. Third, Law #3, there are local city and county defensible space and vegetation management laws of a generalized nature for homeowners. These laws have also generally been in existence for a long time, depending on each city or county. Fourth, Law #4, each city and county may also enact a more specific law requiring a seller or buyer to obtain a defensible space compliance statement. We are, at the present time (June 2022), unaware of any such local laws in Southern California, although they are likely to be enacted in the near future. To confirm what has been stated, a client can look up the local laws in the city and county municipal codes, codes of ordinances, governmental websites, or other resources. Under Law #2, if a city or county has a Law #4, then Law #4 supersedes Law #2 (see FHDS options in paragraphs 3C(2) to 3C(4)). Unfortunately, however, a very common misunderstanding among practitioners and even local authorities, is that Law #2 says that if a city or county has a Law #3, then Law #3 supersedes Law #2. That is incorrect, at least in my opinion.

17. How About the C.A.R. Defensible Space Decision Tree (DSDT)? The zipForms version of the FHDS includes an additional 2-page “Defensible Space Decision Tree” (DSDT). The DSDT is intended to be a worksheet for helping sellers complete paragraph 3 of the FHDS. The DSDT is pretty complicated. Because most sellers currently fall under the default language in paragraph 3C(1) of the FHDS, they may not need to use the DSDT at all.

18. Is the New Defensible Space Law a “Point-of-Sale Requirement” or Not? Some legal experts say yes, and some say no. Some answers given to this question may be partly motivated by political, financial, or other concerns. Frankly, it doesn’t really matter to us as real estate practitioners as long as the parties’ signed contract clearly addresses whether the seller or buyer is responsible for the defensible space requirements. That said, the new law does, at least in my opinion, read like a point-of-sale requirement (see section 1102.19 of the California Civil Code). However, unlike many other point-of-sale requirements with virtually no exceptions, section 1102.19 of the Civil Code has a huge exception for parties who enter into a written agreement for the buyer to take on the defensible space responsibilities after close of escrow.

19. Can a Seller Get a Pre-Sale Compliance Statement? Yes, with one big caveat. A seller can get the documentation of compliance with the defensible space requirements from an authorized inspector before entering into a sales contract (see an outline of the process in Item #10 above). The big caveat, however, is that, unfortunately, the seller’s documentation of compliance that’s given to a buyer must be dated within the prior 6 months (see paragraph 3B(2) of the FHDS). That 6-month “shelf life” can pose a problem for a seller if it takes more than 6 months after getting the compliance statement to find a buyer who closes escrow. That could happen if, for example, and among other possible situations, the seller ends up falling out of escrow once or twice before finally closing escrow.

20. What’s Best for Our Buyers? As the Berkshire Hathaway buyer’s agent, we would always encourage our buyers to investigate all aspects of the property as they deem appropriate before they close escrow. Be sure to give our buyers the C.A.R. Wildfire Disaster Advisory (WFDA). C.A.R.’s Advisory on fire hardening and defensible space was recently moved in the June 2022 Forms Release from the FHDS over to the WFDA. If our buyers are concerned about defensible space, they can order an inspection by a reputable brush clearance company that knows the state and local defensible space rules. But keep in mind that, under the RPA, a buyer generally cannot make or cause to be made any “inspections by a governmental building or zoning inspector or government employee, unless required by Law” or as authorized by the seller in writing (see RPA paragraph 12C). For condos and personal property mobilehomes, the buyer may want to investigate into defensible space management of common areas by the HOA or mobilehome park. See also Item #22 below.

21. Should a Buyer Require the Seller to Get the Compliance Statement? That’s entirely up to the buyer to decide, not us as the BHHS buyer’s agent. Whether the seller or buyer should get the compliance statement is essentially a negotiable term between the parties, just like the price, timeframes, and other contract terms. Check the box in paragraph 3C(6) of the FHDS for the seller to obtain the compliance statement before the buyer’s final walk-through.

22. Buying a Property in a Fire-Prone Area: Buyers should understand that, depending on the property, landscaping, and grounds, maintaining a defensible space buffer zone may be an ongoing, year-after-year responsibility and concern for homeowners in fire-prone areas, and not just something that a buyer considers “one time only” at time of purchase. Brush clearance, vegetation management, obtaining homeowners insurance, and other defensible space matters can be a difficult and costly, yet ongoing, issues for certain homeowners. Fire prevention is a serious matter of safety, and highly likely to be an ordinary part of life for homeowners in fire-prone areas for many years to come. More information about defensible space requirements is set forth at the Cal Fire’s Ready for Wildfire webpage at https://www.readyforwildfire.org/prepare-for-wildfire/get-ready/defensible-space/.

23. Why Aren’t Other Listing Brokerages Routinely Getting the FHDS Signed Upfront? Well, I guess we will be leading the charge on this one. As BHHS agents, we want to help our clients who are selling and buying homes in fire-prone areas. Getting the FHDS upfront at contract acceptance helps to ensure that no disputes concerning the defensible space requirements will arise during escrow.

24. Remember That Things May Change: These are new laws that are just getting rolled out. The new laws raise a lot of issues and concerns that may affect real estate transactions and our day-to-day real estate practice. The best way for clients and agents to handle the issues presented by the new laws may change over time, depending on various moving parts.

Additional Resources: The full text of the 2021 fire hardening and defensible space laws (AB 38) is set forth at sections 1102.6f and 1102.19 of the California Civil Code. More information is available from, among other resources, Cal Fire’s Defensible Space webpage. C.A.R. also has a Home Hardening legal article, and a Defensible Space Law article (password-protected for C.A.R. members only).

Copyright© 2022 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 June 27, 2022. 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. Written by Stella Ling, Esq.