Legal FAQs for REALTORS®
Who are the "local building officials" the agents should have their clients to contact for local building code requirements? (updated Aug. 9, 2007)
Contact the city offices of any municipality in which the property is located, and ask for the office that issues residential building permits or a residential building-code compliance officer. Your local association may have already contacted the building code officers to see if they would issue a brief statement as to what the local code required with respect to smoke detectors. If your local association has such a document, ensure it has been periodically updated.
The 80th Texas Legislature in 2007 made changes to seller's disclosure requirements, specifically regarding smoke detectors. What are the smoke detector requirements for homes in Texas? (updated Aug. 6, 2007)
The legislation, which is effective Sept. 1, 2007, requires one- and two-family dwellings constructed in Texas to have working smoke detectors installed in accordance with the requirements of the building code in effect in the area in which the dwelling is located. This requirement extends to a landlord of a one- or two-family dwelling unit and satisfies the requirements of the current smoke-detector laws applicable to landlords. The law further requires that a permit issued for a home improvement include the installation of smoke detectors in accordance with the local building code if the dwelling for which the permit will be issued does not comply.
An executed contract is in place, and the buyer had crossed out the waiver wording on the seller's disclosure before signing. Within the 10 days, the buyer requests in writing that the seller install hearing-impaired smoke detectors. At this point, does the seller have a right to refuse? If the buyer is willing to waive his rights to require the seller to install, how should you document their agreement? (updated Aug. 9, 2007)
The seller does not have the right to refuse to install under the facts of this question. However, the seller does have the right to negotiate who will pay for the installation. If the parties cannot agree, the contract will terminate. As to the second question, there might not need to be any documentation of a waiver. The buyer's acceptance of the property and willingness to close without the installation being complete would seem to be sufficient in most cases. However, if documentation of the waiver is necessary, the buyer could simply state in writing that he is waiving his rights under Chapter 766 of the Health and Safety Code.
If a hearing-impaired buyer is not willing to waive his rights on the seller's disclosure to have hearing-impaired smoke detectors installed by the seller but is willing to acknowledge receipt of the seller's disclosure, how is this accomplished? Can the buyer strike through the waiver wording and sign? (updated Aug. 9, 2007)
Nothing in the statute prohibits the buyer from striking the waiver language. The statute is silent about whether he can strike the language or not. Therefore, he could strike the language and acknowledge receipt. As a side comment, please note that Section 5.008 of the Property Code requires the seller to deliver the Seller's Disclosure Notice. Once it is delivered and signed by the seller, the seller has accomplished his statutory requirements. The seller may need to document delivery by other means if a buyer refuses to sign the notice. The more likely course of events is that the buyer will ask what his rights are under Chapter 766 before deciding to sign or before deciding to strike any language. In that case, the buyer will need to read Chapter 766 of the Health and Safety Code. The buyer's rights are to request hearing-impaired smoke detectors to be installed. Although the statue provides that the seller is required to install the hearing-impaired smoke detectors (under the conditions that trigger that requirement), the statute also provides that the parties can agree as to who will pay for the installation. Even if he signs the notice and does not strike the waiver language, the buyer's offer or any amendment of the offer can request the installation of smoke detectors or any other repairs. The buyer has not waived any contractual rights by signing the notice. As a side comment, one has to ask whether the statute is creating any new rights because the buyer and seller always had the contractual rights to negotiate the installation of such items. Of course, the statute brings the issue up close for consideration. It also requires the seller to agree to install hearing-impaired smoke detectors under certain conditions provided that the parties agree who will pay for the installation.
What rights do buyers have under this law? (updated Aug. 6, 2007)
Certain purchasers may require the seller to install smoke detectors equipped for hearing-impaired persons prior to the closing date of the sale of the home. In order to impose this requirement on the seller, the purchaser must satisfy a number of requirements: 1. There must be a written contract in place. 2. It must be a sale of single-family dwelling or duplex. 3. The buyer or a member of the buyer's family who will live in the dwelling must be hearing impaired. 4. The buyer must provide written evidence of the hearing impairment signed by a licensed physician. 5. The buyer must submit a written request to the seller to install the smoke detectors. 6. The buyer must specify in the written request where the detectors are to be installed. 7. The buyer must send the written request not later than the 10th day after the effective date of the contract. The bill allows the buyer and seller to agree on the brand and which party will bear the cost of the detectors. The seller must install the detectors no later than the closing date. If the seller fails to install, as may be required, the buyer has the right to terminate the contract.
In the case of a seller concerned about future liability issues that could arise from improper or unsatisfactory installation of hearing-impaired smoke detectors, does he have the right to refuse to negotiate an offer from a hearing-impaired buyer who will not waive his rights on the seller's disclosure, or would this fall under fair-housing policy? (updated Aug. 9, 2007)
No. A seller may not refuse to negotiate an offer simply because a buyer is hearing-impaired, as that conduct discriminates against the buyer based on his disability. There are alternatives that can provide direct privity between the buyer and the installer, which should be able to address any liability concerns raised in this question. The statute also provides that the parties can agree who will install the detectors and can agree on the brand of the detectors. The seller may want to use the buyer's preferences as to the brand and installer.
Where would property managers go online to see how this new law will impact their landlords? (updated Aug. 9, 2007)
The bill can be found on the Texas Legislature's Web site, and a discussion of its impact is available in the August 2007 Legal column in Texas REALTOR® magazine. The most prudent position for a property manager will be that any property he manages contains smoke detectors in compliance with local building code requirements. The property manager may need to check with the local building code officer to determine what the applicable building code requires with respect to the installation and location of smoke detectors. Most cities use the International Residential Code. Depending on which version is being used, the requirements may vary slightly. However, the newer versions of the IRC impose more requirements than the older versions with respect to the location and installation of smoke detectors.
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