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Selling a Condo in a Fire Zone? Why California Law Puts You on the Hook for What Your HOA Controls

by | HOAs, Real Estate

SELLING A CONDO IN A FIRE ZONE: DISCLOSURE DUTIES UNDER CALIFORNIA LAW

OVERVIEW

Most California condo owners have no idea that they’re required to make fire safety disclosures when selling their units. That ignorance stems primarily from the fact that condominium owners don’t own their roofs, control the landscaping, or manage anything outside their own units’ walls. Unfortunately, California Civil Code section 1102.19—which imposes strict fire disclosure obligations on all sellers of residential property located in designated high or very high fire hazard severity zones—doesn’t give this lack of awareness a pass.

That ignorance, coupled with the woeful ignorance displayed by far too many real estate agents in California, has created a trap for tens of thousands of condominium owners who think these rules don’t apply to them because logically, they shouldn’t. After all, how can you be expected to disclose the type of vent screening used on a roof you don’t own and aren’t even allowed to inspect without express HOA approval?

But that’s exactly what the law now demands.

And if you leave the wrong section blank, or make an innocent mistake on your disclosure form, you may find yourself liable for failure to disclose even if your HOA refused to give you the information you needed.

This article breaks down what Civil Code section 1102.19 actually requires, why it fails to account for how condominium ownership works in practice, and what steps you can take to reduce your risk if you’re selling a unit in a designated fire zone. You’ll learn what to demand from your HOA, how to approach your disclosure obligations carefully, and why so many real estate professionals are giving dangerously bad advice about this law.

This article is based on a full-length episode of my HOA HELL podcast, titled “Selling a Condo in a Fire Zone? Why California Law Puts You on the Hook for What Your HOA Controls,” which you can watch by clicking here.

WHAT CIVIL CODE § 1102.19 ACTUALLY REQUIRES AND WHY CONDO OWNERS ARE STILL ON THE HOOK

Civil Code section 1102.19 imposes specific wildfire disclosure duties on anyone selling residential property located in a designated high or very high fire hazard severity zone. These disclosure obligations apply regardless of whether the property is a single-family home, townhome, or condominium unit. The problem, however, is that that the statute wasn’t written with condominiums in mind, which creates a serious compliance problem for tens of thousands of California homeowners.

Before we get to why that matters, here’s what the law actually says.

The Required Disclosures

Civil Code 1102.19 requires all sellers of residential property in high fire zones to make three specific written disclosures:

  • Whether the property is located in a designated high or very high fire hazard severity zone.
  • The condition of the vegetation and landscaping around the structure.
  • Whether the structure includes certain “fire-hardening features.”

Sellers must complete and deliver a statutorily required disclosure form, known as the Fire Hardening and Defensible Space Advisory. In certain cases—e.g., when the property is in a very high fire hazard severity zone—sellers may also be required to complete a Home Fire Hardening Disclosure or a Defensible Space Addendum, depending on the specific fire zone classification and local ordinances.

The good news is that determining whether your property falls into one of these zones is easy. You don’t need to hire an expert or request a report. Just Google “Am I in a high fire hazard severity zone?” and make sure to select the official site ending in “.gov.” One such official tool is the California Office of the State Fire Marshal’s online mapping system, which you can access by clicking here.

What Fire-Hardening Features Include

“Fire-hardening features” refer to construction elements designed to reduce fire risk. These include things like:

  • Non-combustible roofing (e.g., tile or asphalt shingles).
  • Dual- or triple-pane tempered windows.
  • Covered or screened attic vents.
  • Stucco or other ignition-resistant exterior siding.
  • Ember-resistant eaves and soffits.
  • Decks and fencing made from non-combustible material.

This is not an exhaustive list, but it covers the most common fire-resistant elements buyers are being asked to evaluate under the law.

Why Public Resource Code § 4291 Matters

Civil Code 1102.19 also cross-references Public Resources Code section 4291, which outlines fire prevention responsibilities for owners of certain properties located in state-designated fire zones. That law is aimed primarily at ensuring that there’s “defensible space” around structures—i.e., buffer zones where vegetation has been cleared or maintained to reduce fire spread.

Generally, it requires 100 feet of vegetation clearance around structures in wildland-urban interface areas. That includes trimming trees, removing dead branches, keeping grass low, and maintaining a perimeter that discourages fire encroachment.

So when Civil Code section 1102.19 requires sellers to disclose the condition of vegetation and landscaping, it’s incorporating Public Resource Code section 4291’s defensible space requirements by reference even if the seller isn’t the one who maintains or controls the surrounding area.

And that’s the problem: condo owners almost never control the areas that the law now requires them to describe.

WHY CIVIL CODE § 1102.19 IS A MINEFIELD FOR CONDO SELLERS

The Legislature designed Civil Code section 1102.19 for single-family homes, not condominiums. Indeed, they built that statute around the assumption that sellers control and maintain the entire property, including the structure, siding, landscaping, and fire-resistant features. For owners of single-family homes, that’s true. But for condominium owners, it’s not even close.

Indeed, in a typical California condo development:

  • The homeowner does not own the roof.
  • The homeowner does not own the exterior walls, siding, or vents.
  • The homeowner does not own or control the surrounding landscaping.
  • The homeowner is generally prohibited from making fire safety modifications to common areas.
  • The homeowner is generally not allowed to inspect or access these areas without the HOA’s permission.

And yet, under the statute, the seller is responsible for disclosing fire safety risks involving exactly those features.

This isn’t just an annoyance. It’s a legal mismatch with real consequences.

Condo owners are expected to make affirmative statements about things they don’t control, aren’t allowed to access, and often have no way of knowing. And if they guess wrong, or leave a blank on the disclosure form, they could be sued after the sale by a buyer who claims the omission constituted negligence, fraud, concealment, or non-disclosure.

That’s not theoretical. At MBK CHAPMAN, we’ve seen this exact problem arise in real-world transactions involving condo sales in high fire zones. In some cases, sellers who asked their HOAs for help received no response. In others, the response either came too late, or the HOA indicated that it couldn’t act within the necessary time frame (i.e., the time frame relevant to the purchase and sale agreement at issue). Some HOAs even denied any duty to provide the requested information. So those homeowners were left guessing, and that’s exactly what the statute punishes.

It’s not hard to see how this happened. The Legislature wanted better disclosure around wildfire risks, especially in areas where fires are increasingly destructive and frequent. But they didn’t think through how those same rules would affect common interest developments where the owners don’t manage (or own) the physical structure.

There’s a fix, of course: the law could easily be amended to shift the disclosure duty to the HOA when it comes to common area features. But as of now, that hasn’t happened. And until it does, condo owners are on the hook.

TWO WAYS THAT CIVIL CODE § 1102.19 PUTS CONDO OWNERS AT RISK

Civil Code section 1102.19 isn’t just poorly drafted, it’s legally dangerous for condo owners. Not because it creates new duties for HOAs or real estate professionals, but because it puts all of the legal responsibility on individual sellers who may not have the information or access to intelligently comply.

And if you get it wrong, the consequences can be immediate and severe.

Transactional Fallout: Lost Sales and Delayed Closings

If you leave required disclosures blank, or submit forms that appear incomplete or incorrect, you may find yourself unable to close your sale.

Buyers, lenders, and escrow officers are increasingly scrutinizing fire zone disclosures. If your agent uses the California Association of Realtors (“CAR”) standard forms—which almost all do—then your disclosure packet will include questions about defensible space and fire-hardening features. If those are unanswered or obviously vague, your buyer may walk. The lender may hold funds. The title officer may flag the deal.

Otherwise excellent deals have fallen apart because:

  • The condo seller didn’t think the statute applied to them and skipped the fire disclosure. [Their real estate agent may have even advise them, wrongly, that the statute didn’t apply to them.]
  • The buyer’s lender demanded clarification before issuing final loan approval.
  • The seller couldn’t get timely cooperation from the HOA and missed critical closing dates.
  • The buyer lost a favorable interest rate and canceled the deal.

The result? Lost opportunities, financial loss, relisting delays, and added liability risk.

And the HOA? They’re not a party to your sale. So if their failure to respond causes your deal to fall apart, you may still be the one stuck holding the bag.

Post-Sale Liability: You Could be Sued

Let’s assume, for argument’s sake, that your deal closes anyway. Three months later, the buyer discovers the condo is in a high fire hazard zone and has features that aren’t fire-hardened.

They review your disclosures and find that you either said nothing, said the wrong thing, or left key questions blank.

They sue.

Under California law, even if you had no control over the condition of the roof, siding, vents, or landscaping, you were still the seller, and the statute didn’t give you a pass.

Your real estate agent might claim they didn’t know. The HOA might claim they weren’t obligated to help (assuming that you even asked your HOA for information or documentation). Your insurance might not cover the claim.

But you’ll still be left defending against allegations of:

  • Failure to disclose a material fact.
  • Negligent misrepresentation.
  • Fraud by omission.
  • Violation of Civil Code section 1102.19.

And make no mistake. These cases are expensive to defend. I’m talking about real-world risks, not theoretical ones. And they apply before and after escrow closes.

WHAT CIVIL CODE § 1102.19 SHOULD SAY

The core problem with California Civil Code section 1102.19 isn’t its goal. It’s that the statute fails to account for a significant category of property owners who can’t reasonably comply with it.

The Legislature wanted to strengthen fire-related transparency in high-risk areas. That’s a worthy goal, and and for single-family homes, the statute mostly works. The seller owns the roof, maintains the landscaping, and typically knows what construction materials and safety features were used. It makes sense to hold that person responsible for disclosing what they control.

But that logic breaks down completely when applied to condominiums.

Most condo owners don’t own the roof. They don’t hire landscapers, install attic vents, or choose decking materials. Those elements almost exclusively fall under the HOA’s jurisdiction (those items are almost always considered common areas), where individual owners are prohibited from inspecting, let alone modifying, anything.

That mismatch wasn’t a secret. The California Association of Realtors (“CAR”) flagged the issue early on and has continued pressing for a legislative fix. But as of this writing, Civil Code section 1102.19 still hasn’t been amended to distinguish between condo ownership and ownership of a single-family residence. Until that happens, condo owners remain personally responsible for answering fire safety questions about common areas they neither maintain nor manage. That disconnect continues to create risk, confusion, and unnecessary liability.

MANY REAL ESTATE AGENTS AND BROKERS HAVE GIVEN CONDO OWNERS TERRIBLE ADVICE

Far too many real estate professionals in California continue to give dangerously inaccurate advice to condo sellers about their fire disclosure obligations. Some agents insist the law only applies to single-family homes. Others claim sellers don’t have to complete the forms because “you don’t own the roof.” Both assertions are wrong.

And both can expose the seller to serious post-sale liability.

The statute says “seller.” It doesn’t say “owner of the common area” or “party in control of fire hardening features.” So unless you fall into a narrow exemption, which most condo sellers do not, you are legally obligated to disclose. And if you don’t, you could be held liable for non-disclosure, even if the error was based on your agent’s bad advice. [That being said, agents and brokers are not off the hook either. If a buyer later discovers the required disclosures were omitted or misrepresented, the seller may try to bring the agent or broker into the litigation, either for negligence, breach of duty, or indemnity. But unless you, the seller, documented that bad advice in writing (which it rarely is), proving the agent’s fault could be difficult and costly. And in the meantime, you will still be left exposed and alone at the outset of the dispute.]

This is not a fringe problem. We’ve seen examples of agents instructing condo sellers to skip fire disclosure requirements altogether simply because the exterior features were HOA-controlled. In some cases, sellers were told to leave entire sections of the form blank. In others, they were encouraged to “just check the box” without confirming anything. Following that advice, however, puts those sellers directly in the crosshairs of a post-sale lawsuit.

To be clear: the statute applies to all residential sellers in fire zones, including condominium owners.

The misinformation issue became so serious, however, that the CAR actually issued a bulletin to its own members (i.e., real estate agents and brokers) to try to educate them on the law so that they would stop giving such bad advice to their clients (i.e., the sellers). Unfortunately, the misinformation remains a problem.

And that means the burden is still on you—the seller—to know what’s required and protect yourself accordingly.

HOW TO PROTECT YOURSELF IF YOU’RE SELLING A CONDO IN A HIGH FIRE HAZARD SEVERITY ZONE

By now, you’re aware that if you’re a condo owner in California and your property is located in a designated high or very high fire hazard severity zone, you still have legal duties under Civil Code section 1102.19 (despite the fact that you don’t own or control the features that you’re being asked to disclose). Fortunately, there are practical steps you can take to minimize your exposure to liability, especially if your HOA fails to cooperate.

  • Confirm whether you’re in a high fire zone. As I indicated above, you can easily determine whether your property falls within the requisite zone by going onto the Internet. Just make sure that you visit a “.gov” website so you don’t inadvertently find yourself on the website of a company trying to sell you something. The search is free and easy. Just navigate to the link I provided above.
  • Make a written request to the HOA. You may want to get started on this step before you even put your condo on the market. But regardless, before you complete your mandatory disclosures, send a clear, written request to your HOA or management company asking for the following:
    • The roofing materials used on your building.
    • Whether eaves and attic vents include fire-hardening measures (such as ember-blocking mesh).
    • Any defensible space work (e.g., brush clearance, vegetation thinning) performed around the building.
    • Landscaping materials and maintenance protocols in the areas surrounding your unit.
    • Include relevant dates, including those applicable to your contract. Just remember, that you have to give the HOA sufficient time under Civil Code section 5200 to respond to the request, and that might be as long as 30 days (hence my advice to obtain this documentation before you even go into contract). Document everything in writing. Do nothing verbally.
  • Tell the truth. Disclose what you know and explain why (and why) you don’t. If your HOA fails to respond or only gives partial information, you still have to complete the disclosure forms. But you’re allowed to clarify the limits of your knowledge. For example, you could say something along the lines of: “As a condominium owner, I do not own or control the roof, eaves, or surrounding landscaping. I requested information from the HOA regarding the property’s fire-hardened features and defensible space, but have not yet received a response. Accordingly, I am unable to verify the presence or absence of such features.”
  • If your HOA doesn’t act appropriately, explain things to them. If, for whatever reason, you’ve given the HOA sufficient time to respond to your written demand, and you still haven’t received the required information, make sure you notify them (and the management company) of the consequences of their non-cooperation. Make it clear that you face loss of the deal and that their conduct exposes them to monetary damages, along with your attorneys’ fees and costs.
  • Attach All Relevant forms and communications. If the HOA does respond, include their information with your disclosure package. Even if they only provide partial answers, it’s better than nothing. This helps prove that your disclosure was based on the best available information, not guesswork. You should also ensure that your disclosure packet includes:
    • The statutory fire zone disclosure form.
    • The Home Fire Hardening Disclosure (if your agent requires it).
    • The Defensible Space Addendum (if applicable under your county’s rules).
  • Never leave required items blank. You’re required by law to make the requisite disclosures, so never leave anything blank. Always say something. Just make it the truth. Ino other words, if you don’t know the answer, say so. If you requested information and didn’t get it, explain that. But don’t leave anything blank.
  • Contact a qualified attorney to advise you. This article isn’t legal advice. It’s general education for California condo owners. If you’re in escrow, facing disclosure deadlines, or feeling overwhelmed by the process, it’s worth having an attorney review your documents. For example, you can call us at MBK CHAPMAN. We have tremendous experience in these matters.

CONCLUDING THOUGHT

Civil Code section 1102.19 aims to improve transparency and reduce wildfire-related risk for California homebuyers. But when applied to condominiums, it creates a dangerous mismatch between legal obligation and practical control because it forces condo owners to make disclosures about roofing, siding, vents, and landscaping they don’t own, can’t inspect, and had no role in installing (or even selecting).

The Legislature should have carved out an exception for common interest developments, or at the very least, shifted responsibility to the HOA for common area features. But they didn’t. So if you own a condo in a high fire zone, this duty still falls on you.

Get ahead of the risk. Demand the necessary information from your HOA. Keep written records of every request and response. And above all, never guess on a disclosure form because the consequences won’t fall on your agent or your board. They’ll fall on you.

If your HOA refuses to help, or if you’re already in escrow and unsure what to say, call us at MBK CHAPMAN, and we’ll help you navigate this legal minefield.