“Smoke & Carbon Monoxide Detector Affidavit Required from Connecticut Home Sellers”
There are so many new requirements that will go into effect on a State and Federal basis starting January 2014 and this one is specific to Connecticut home sellers. As I speak to many of my Realtor partners, they are not aware or know very little about this law that goes into effect.
Below is a brief description of Public Act 13-272. Attorney Bill Nathanson was kind enough to share the information. If you need any further information please contact him at 203 314-3034.
AFFIDAVIT REGARDING SMOKE AND CARBON MONOXIDE DETECTORS NOW REQUIRED FROM SELLERS
Effective January 1, 2014, subject to certain exemptions, sellers of one- or two-family residential dwellings are required to provide a buyer "prior to transferring title," an affidavit which, for the purposes of this Note, we will call a Smoke Detector Affidavit or an "SDA." A seller who fails to provide this affidavit is obliged to credit the buyer with $250 at closing.
Public Act 13-272, regarding smoke and carbon monoxide detectors, is reprinted immediately below. A suggested form for the SDA, adopted by the Real Property Section of the Connecticut Bar Association, is available here.
We are also providing in this Note a link to the report of the Connecticut Office of Legislative Research pertaining to the interpretation of the Act and a link to a brief review of the Massachusetts, New York and Rhode Island laws governing smoke detectors in residential property.
The purpose of this Note, however, is not only to set out the Connecticut statute and the SDA but also to discuss the role of the seller's attorney in preparing and executing the SDA. The statute merely provides that the SDA must be given "prior to transferring title," and neither establishes a date when the SDA must be given "prior to transferring title" nor sets forth who shall prepare the affidavit. As a matter of common sense, the SDA can only be prepared by the seller, the seller's real estate agent or the seller's lawyer.
Since the statute gives no definitive guidance, our suggestion is that the SDA should be prepared and executed under the guidance and supervision of the seller's lawyer. We recommend the seller's attorney take the following steps after engagement:
- Immediately contact the Assessor's office or the Building Department of the town in which the property is located to determine the month, day and year the building permit for new occupancy was first issued. The month and day are important because the statute exempts dwellings for which a building permit for new occupancy was issued after October 1, 2005. If, for example, such a permit was issued September 28, 2008, then only Section A of the SDA must be completed. Note that the SDA MUST be completed, executed and delivered even though the dwelling is exempt.
- If the permit was issued prior to October 1, 2005, but after October 1, 1985, then the seller can skip the portion of the SDA dealing with smoke detectors, but must complete the carbon monoxide detector portion.
Our recommendation that the seller's lawyer assume the responsibility of preparing the SDA is based on the belief that the SDA will become a core seller-prepared closing document in the same way the title insurance affidavit, 1099B, Certificate of Non Reporting and FIRPTA affidavit have become standard closing documents prepared by the seller's lawyer. Furthermore, in the event the seller does not have a real estate agent, the responsibility to comply with the statute falls upon the seller's attorney by default.
It is recommended that attorneys advise their clients, prior to signing, of the potential for post-closing liability which may arise from providing the SDA. Some clients may elect to pay the $250.00 rather than expose themselves to such liability.