New California Wildfire Legislation and What You Need to Know

New California Wildfire Legislation and What You Need to Know

  • Bob Griswold
  • 09/16/21

New California Wildfire Legislation and What You Need to Know

Fire season is upon us and one of the greatest concerns for all southern California residents is the possibility of a fire near your home. Sadly, the damage caused by fires in the last two years is more significant than those of years past. Six out of the seven largest fires in California history have occurred since 2020. Last year alone saw 7420 structures destroyed by fires. The recent devastation served as the catalyst for legal changes that place a greater emphasis on homeowners taking steps to protect their homes. Fortunately, the changes have resulted in almost 75% fewer structures lost this year.

What is Assembly Bill - 38 (AB-38)?

The historic devastation from fires in the last few years prompted California legislators to draft a bill to prevent the loss of property and life due to wildfires. The result was AB-38. The assembly bill makes a number of changes at the state level regarding the minimum requirements homeowners need to take to help prevent the spread of fires. One of the notable legal changes is the obligation property owners have to maintain defensible space around their homes. This space gives firefighters a better chance to battle fires and protects structures. The fire department might conduct periodic inspections to evaluate how well the property conforms to state or local ordinances. While the bill affects the regular maintenance done by property owners, it extends to real estate transactions. Sellers are required to have their property up to code before being able to close escrow.

Protecting Your Home

One of the best defenses against wildfires is creating a defensible space through vegetation management, adding hardscape, and removing potentially flammable debris. The California Department of Forestry and Fire Protection (Cal Fire) has a minimum requirement of 100 feet of maintained space on each side of a living structure, which is any dwelling that people might live in. If you have a guest house on your property, this would be considered living space and would need to be surrounded by defensible space as well. This requirement does not extend to vacant land. While those are the state minimums, local entities may have other ordinances that you need to meet. It’s best to check the local regulations for your area by contacting the local fire department as well as local government agencies. The San Diego County website provides resources and guidelines that can help get your property ready.

What do you need to know as a seller?

If you want to get an idea if your property might pass an inspection, you can do a self-assessment on the Cal Fire website. This will give you an action plan to protect your property. If you’re looking to sell, you may need to schedule an inspection. Keep in mind that you need to schedule this early on in the process. Due to limited resources within Cal Fire, especially during fire season, it can take weeks or months to have an inspection conducted. Fortunately, the results of your inspection will be valid for up to six months. Given the current seller’s market, you can expect the inspection to be valid if you elect to get it done early. 
Something to take into consideration is that it can be difficult to determine which agency is responsible for conducting the fire inspection. Jurisdictions are assigned based on the severity of an area’s likelihood for a fire. The best way to determine this is with a “Natural Hazard Disclosure Report” (NHD). There are multiple companies that provide this and the cost is around $100. Your agent can order this for you and it can be paid for at the close of escrow. Homes in a lower severity zone are the responsibility of Cal Fire and those in higher severity zones are managed by local agencies. There are 4 severity zones in total. There is a possibility that your property may not fall squarely into just one agency’s purview. 
Once the proper agency is identified and an inspection is conducted, you will have three chances to pass the inspection process. When you pass your inspection, you will be provided with a clearance report. In the event you do not pass, you will have a list of improvements that need to be made prior to the close of escrow. The follow-up inspection will come 30 days later unless you decide to schedule it sooner. It’s important to note that if you fail the third inspection, you may be subject to fines and legal proceedings.
In the event that an inspection is not conducted before the close of escrow, the buyer can enter into a written agreement with the seller that places the responsibility for passing fire inspection on the buyer. With this arrangement, the buyer needs to complete the inspection process within a year of closing escrow. The buyer will have three attempts to pass before they face citations and potential court proceedings.

Consult with your agent advisors!

AB-38 is very new and everyone is scrambling to get their arms around it. Whether you are a buyer or seller, consulting with an experienced and trusted real estate advisor would be prudent. Below are some links to give you a better sense of whether you are meeting the minimum requirements and if there is anything you need to do to protect your property from wildfires. Want to pick our brain? We are standing by the help. 
Disclaimer: The materials are provided for informational purposes only and does not constitute legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an agent-client relationship between any agent and any other person, group or entity. Furthermore, no representations or warranties whatsoever, express or implied, are given as to the accuracy or applicability of the information contained herein. No one should rely upon the information contained herein as constituting legal advice. The information may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader’s facts and circumstances.

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