Background: A seller of one-to-four residential units located in a high or very high fire hazard severity zone, who is not TDS-exempt, must generally provide the buyer with C.A.R.’s Fire Hardening and Defensible Space Disclosure and Addendum (FHDS). This requirement pertains to a seller of a condominium unit or mobilehome. The FHDS states that the seller must generally obtain documentation of compliance with defensible space requirements before close of escrow, unless the buyer agrees to do it within one year after close of escrow (see paragraph 3C(1) of the FHDS).

Question: Should a buyer of a condominium unit sign an FHDS agreeing to obtain such documentation of compliance after close of escrow if the geographical area at issue is the HOA’s common area for which the HOA, not condo unit owner, is responsible for maintaining? 

Answer: That’s a question for each buyer to decide, depending on the circumstances. As a preliminary matter, it may be helpful to hypothesize that the California legislators never considered this particular issue when they enacted the relevant defensible space law to include condominiums and mobilehomes. But regardless of whether an HOA may ultimately be responsible for maintaining common areas, the defensible space law is merely stating that, as between the seller and buyer only, it’s the seller who is generally responsible for obtaining the documentation of compliance, unless the seller can get the buyer to agree to do it within one year after close of escrow.

A buyer should generally consider at least 3 major issues before agreeing to take on the responsibility for obtaining documentation of compliance within one year after close of escrow. First, how much work will it entail to maintain a defensible space buffer zone around the condo? Some properties may be ladened with brush and vegetation that may be difficult to clear, whereas others are not. Buyers in fire-prone areas should also realize that maintaining defensible space around their property is not a one-time concern at time of purchase only. Brush clearance, vegetation management, fire prevention measures, obtaining fire insurance coverage, and other related issues can be difficult and costly for many, many years to come.

Second, how well-managed is the HOA? Given that the buyer must generally rely on the HOA to maintain the common areas, the buyer should investigate as to whether the HOA has good leadership and management, good financial statements, responsible budgeting, properly-maintained common areas, adequate fire insurance coverage, and so on. The buyer may want to ask the HOA (or ask the seller to ask the HOA) what it’s doing about the defensible space requirements if anything. Some HOAs may have already obtained documentation of compliance, whereas others do not know what it is.

Third, the buyer should consider what the consequences will be if the buyer fails to obtain documentation of compliance within one year after close of escrow. As the real estate agents involved in this transaction, we do not know what will happen. Maybe nothing will happen. Or maybe the City will tag the property, the HOA will charge a special assessment, the HOA will be unable to obtain fire insurance, or something else.

-Thank You to Valerie Tuck (La Jolla Office) for suggesting this week’s legal tip!

Copyright© 2023 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 July 24, 2023. 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.