Bottom Line:
- EFFECTIVE JANUARY 1, 2018, THE NEW POOL SAFETY ACT REQUIRES HOME INSPECTORS (NOT REAL ESTATE PROFESSIONALS) TO DETERMINE IF THE PROPERTY HAS ANY DROWNING PREVENTION SAFETY FEATURES FOR POOLS AND/OR SPAS AT SINGLE FAMILY RESIDENCES.
- THIS IS NOT A RETROFIT REQUIREMENT THAT MUST BE MET AS A CONDITION OF SALE BUT IT WILL IMPACT THE FINALIZATION OF PERMITS.
Q: My listing has a pool and a separate spa. The home inspector told me that starting on January 1st, IF he prepares a home inspection report he must include in that report whether or not the pool and the spa are equipped with any of the seven (7) drowning prevention safety features. Is that true and if so what are the drowning prevention safety features? If the Property does not have any drowning prevention safety features, is the Seller required to retrofit the Property as a condition of sale? Have my obligations as the Listing Agent changed?
A: The Inspector is correct. Effective January 1, 2018, included in Business & Professions Code Section 7195 (the statute which deals with the obligations of home inspectors) is a new requirement that the “home inspection” report must include a “noninvasive physical examination of the pool or spa and identify which, if any of the seven safety features” are present.
Regardless of whether the Property is held in Trust, is a Probate Sale or any other type of sale, all home inspection reports regarding a private, single-family residence that has a pool and/or spa must include the pool safety inspection – there are no exemptions or exceptions for certain types of Sellers. Sellers and/or Buyers cannot waive this new statutory inspector disclosure requirement.
- DROWNING PREVENTION SAFETY FEATURES:
This new law obligates the home inspector to determine if any of the seven (7) safety features listed in Health and Safety Code Section 115925 are present when inspecting a single-family home. Those 7 drowning prevention safety features are:
(1) An enclosure that meets the requirements of Section 115923 and isolates the swimming pool or spa from the private single-family home.
(2) Removable mesh fencing that meets American Society for Testing and Materials (ASTM) Specifications F2286 standards in conjunction with a gate that is self-closing and self-latching and can accommodate a key-lockable device.
(3) An approved safety pool cover, as defined in subdivision (d) of Section 115921.
(4) Exit alarms on the private single-family home’s doors that provide direct access to the swimming pool or spa. The exit alarm may cause either an alarm noise or a verbal warning, such as a repeating notification that “the door to the pool is open.”
(5) A self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor on the private single-family home’s doors providing direct access to the swimming pool or spa.
(6) An alarm that, when placed in a swimming pool or spa, will sound upon detection of accidental or unauthorized entrance into the water. The alarm shall meet and be independently certified to the ASTM Standard F2208 “Standard Safety Specification for Residential Pool Alarms,” which includes surface motion, pressure, sonar, laser, and infrared type alarms. A swimming protection alarm feature designed for individual use, including an alarm attached to a child that sounds when the child exceeds a certain distance or becomes submerged in water, is not a qualifying drowning prevention safety feature.
(7) Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the features set forth above and has been independently verified by an approved testing laboratory as meeting standards for those features established by the ASTM or the American Society of Mechanical Engineers (ASME).
- HOME INSPECTION REPORTS:
Existing law defines a “home inspection” as a:
“noninvasive, physical examination, performed for a fee in connection with a transfer … of real property, of the mechanical, electrical or plumbing systems or the structural and essential components of a residential dwelling … designed to identify material defects in those systems, structures, and components.”
Pools and spas were not originally included within the scope of a home inspection report. As such, some home inspectors may not want to perform a pool inspection at all or may charge more for doing so. However, the home inspector cannot simply choose to ignore this statutory requirement in preparing their report.
These new requirements do not apply to public swimming pools, “An apartment complex or any residential setting other than a single-family home” (e.g. condominiums, townhouses) and it does not apply to “Hot tubs or spas with locking safety covers that comply with the American Society for Testing and Materials (ASTM F1346)”.
The new law does not obligate Sellers or Buyers to obtain a home inspection report. IF there is a home inspection report in the sale of a single-family home, then that triggers the need for a determination of the existence or non-existence of any drowning prevention safety features. Home inspection reports should always be encouraged.
- NO NEW OBLIGATIONS ON SELLERS OR LICENSEES:
The new law does not place any obligations on the Seller or real estate licensees involved in the sale of a single-family home to determine if the Property has any such devices.
- TRANSFER DISCLOSURE STATEMENT:
The Legislature did not make any changes to the Real Estate Transfer Disclosure Statement (“TDS”). For several years, Section IIA of that form has asked Sellers if they are aware of the existence of a Pool and, if so, is there a “Child Resistant Barrier?” It does not ask about all of the other potential devices that could be in place to help prevent drowning. Section IIA of the TDS also asks Sellers if they are aware of a Hot Tub/Spa and, if so, is there a “Locking Safety Cover?” That form does not ask if the type of locking safety cover meets the current standards detailed above. There is also a note on the TDS (below Section IIB) that warns Buyers that a “child-resistant pool barrier may not be in compliance with the safety standards.”
Notwithstanding the lack of any changes to the TDS, it is clear from the legislative history that the existence or non-existence of drowning prevention safety devices is a material fact. Governmental statistics have established that “drowning is the second leading cause of death for California children one to four years of age.”
Thus, if the Seller or any of the real estate licensees know that none of the 7 listed safety devices for the pool or spa exist, then that knowledge should be disclosed, in writing, in the disclosure documents used in that transaction.
- THIS IS NOT A RETROFIT REQUIREMENT:
It is not a condition of sale to install drowning prevention safety devices thus the government- mandated retrofit provisions in standard residential purchase agreement forms (e.g. Paragraph 7 B (2) of the C.A.R. RPA) do not obligate the Seller to add those features.
However, like the water-conserving plumbing fixtures law, it does have a hidden kicker. Health and Safety Code Section 115922 (b) now provides:
“Before the issuance of a final approval for the completion of permitted construction or remodeling work, the local building code official shall inspect the drowning safety prevention features required by this section and, if no violations are found, shall give final approval.”
The current code requires that at least two (2) of the seven (7) drowning prevention safety features must be present. The expense of adding at least 2 of those devices should be factored into any decision made by the principals as to who should be responsible for making repairs before or after close of escrow.
PRACTICE TIPS:
- Listing Agents should warn Sellers of private, single-family homes of this requirement and encourage Sellers to disclose their knowledge about the existence or non-existence of drowning prevention safety devices. Sellers should be told that if there is a home inspection report prepared on or after January 1, 2018, the home inspector must evaluate that issue.
- When home inspection reports are ordered (whether “up front” or during escrow), the home inspector should be told that there is a pool and/or spa. The existence of a pool and/or spa will probably impact the cost of obtaining the home inspection report.
- Continue to recommend that there should be a written home inspection report – do not recommend oral inspection reports. Do not use home inspectors who will agree to violate the law by not including the pool and/or spa in their report.
- When conducting open houses at private, single family dwellings that have a pool and/or a spa, evaluate whether or not it is reasonably safe for potential buyers who have children to view those portions of the Property. If it is not reasonably safe, do not let anyone view those portions of the Property – not just those who have children with them – to avoid even the appearance of treating people with children differently than all other potential buyers.
- Broker Risk Management will be evaluating if this new law will necessitate any changes in any of our current forms.
This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.
© Copyright 2017 Broker Risk Management 12/15/17