H. B. 4685
(By Delegates DeLong, Morgan,
Brown, Duke and Caputo)
[Introduced February 18, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §36-12-1, §36-12-2,
§36-12-3, §36-12-4, §36-12-5, §36-12-6, §36-12-7, §36-12-8,
§36-12-9 and §36-12-10, all relating to creating the West
Virginia Smoke Detector Act; requiring evidence that the
residential property has an operational smoke detector
installed in the immediate vicinity of each sleeping area
within all one- to four-family dwellings; creating smoke
detector disclosure form; requiring parties to acknowledge
form; specifying time for disclosure; specifying liability of
seller or seller's agent; providing remedies; and providing
exemptions.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §36-12-1, §36-12-2,
§36-12-3, §36-12-4, §36-12-5, §36-12-6, §36-12-7, §36-12-8, §36-12-9 and §36-12-10, all to read as follows:
ARTICLE 12. WEST VIRGINIA SMOKE DETECTOR ACT.
§36-12-1. Short title.
This article may be cited as the "West Virginia Smoke Detector
Act."
§36-12-2. Application of article.
The provisions of this article apply to transfers of
residential real property, improved with dwelling units for one to
four families, by sale, exchange, auction, an installment land
contract or a lease with an option to buy.
§36-12-3. Definitions.
As used in this article, unless the context clearly requires
otherwise:
(a) "Agent" means any individual, partnership, corporation or
trustee defined as a "broker," "associate broker" or "salesperson"
in section four, article forty, chapter thirty of this code, who
acts on behalf of a seller or buyer of residential real property.
"Agent" includes a subagent who acts on behalf of an agent;
(b) "Buyer" means any individual, partnership, corporation or
trustee purchasing any estate or interest in residential real
property;
(c) "Closing" means the occasion when the parties sign and
deliver the documents, including the deed, necessary to convey
title to the residential real property to the buyer to complete the contract.
(d) "Offer to purchase" means the oral or written offer by the
buyer to the seller to purchase residential real property,
including a lease with an option to buy.
(e) "Residential real property" means any estate or interest
in a manufactured housing lot or real property improved with
dwelling units for one to four families; and
(f) "Seller" means any individual, partnership, corporation or
trustee leasing, selling or otherwise transferring an estate or
interest in residential real property.
§36-12-4. Required form.
(a) Except for transfers specifically exempted from the
provisions of this article, a seller transferring residential real
property shall provide to the buyer proof that the residential
property has an operational smoke detector installed in the
immediate vicinity of each sleeping area within all one- to
four-family dwellings, including any "manufactured home" as that
term is defined in subsection (j), section two, article nine,
chapter twenty-one of this code. The smoke detector shall be
capable of sensing visible or invisible particles of combustion and
shall meet the specifications and be installed as provided in the
national fire protection association standard 72, "Standard for the
Installation, Maintenance and Use of Household Fire Warning
Equipment," 2002 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable
to warn the occupants of the danger of fire.
(b) The seller may be required to undertake or provide any
independent investigation or inspection by a certified home
inspector of the property in order to provide proof required by
this article.
§36-12-5. Seller's smoke detector form.
(a) A standard form shall be developed and called the
"seller's smoke detector form." The form shall include:
(1) A section for the parties to acknowledge that evidence has
been provided pursuant to this article;
(2) Notice to the buyer that he or she may obtain professional
advice or inspection of the property;
(3) Notice to the buyer that the seller's smoke detector form
is the representation of the seller, not the representation of his
or her agent; and
(4) Notice to the buyer that the seller's disclosure does not
constitute a warranty of any kind by the seller nor does it
substitute for an inspection or warranties of title, which the
parties may obtain or provide in their agreement.
(b) The form shall be developed by the head of the State Fire
Commission by the first day of October, two thousand eight.
Standard forms shall be provided online to download.
§36-12-6. Time for disclosure; acknowledgment of disclosure; effective date.
(a) The seller's smoke detector form shall be completed by the
seller when the seller offers the residential real property for
sale.
(b) The seller shall present the form to the buyer prior to
the time the buyer offers to purchase the property.
(c) The parties shall acknowledge on the form that the seller
has provided the evidence as required by this article to the buyer
prior to the closing.
(d) This section shall become effective on the first day of
November, two thousand eight, at which time all sellers shall
provide the form required by this article to all buyer.
§36-12-7. No invalidation of transfer.
No transfer of residential real property may be invalidated
solely because of the failure of any person to comply with the
provisions of this article.
§36-12-8. Remedies.
(a) The seller may be liable in a civil suit for actual
damages suffered by the buyer for failure to provide the form as
required by section four of this article.
(b) The remedy created by subsection (a) of this section is
not exclusive and is not intended to abrogate any remedy otherwise
available at law.
§36-12-9. Liability of the seller or seller's agent.
(a) A cause of action against a seller or seller's agent does
not arise under this article for smoke detectors which fail to
operate after the closing.
(b) Notwithstanding any other provision of this code to the
contrary, neither a seller nor a seller's agent is liable for any
error, inaccuracy or omission in the disclosure required by this
article if:
(1) The error, inaccuracy or omission was based on information
provided by public agencies and the seller and his or her agent
reasonably believe the information to be correct and had no actual
knowledge to contrary; or
(2) The error, inaccuracy or omission was based on information
provided in a report or opinion of a licensed home inspector,
building code official, or volunteer or municipal fire department
dealing with matters within the scope of his or her expertise and
the seller and his or her agent reasonably believe the information
to be correct, without actual knowledge to the contrary, having
used due care in obtaining the information for the third party and
in transmitting it to the buyer.
§36-12-10. Exemptions.
This article does not apply to the following transfers of
residential real property:
(1) Transfers by court order including, but not limited to,
transfers ordered by a court in administration of an estate, transfers ordered pursuant to a writ of execution, transfers by
foreclosure sale, transfers by a trustee in bankruptcy, transfers
by eminent domain, transfers pursuant to a condemnation proceeding
and transfers resulting from a decree of specific performance or
partition;
(2) Transfers to a trustee or other creditor pursuant to a
deed of trust or a credit line deed of trust as provided in
sections one-a and fourteen, article one, chapter thirty-eight of
this code;
(3) Transfers to a beneficiary of a deed of trust by a trustor
or successor in interest who is default;
(4) Transfers by quitclaim or corrective deed without
consideration;
(5) Transfers by a fiduciary administering a decedent's
estate, guardianship, conservatorship or trust when a residential
property defect disclosure form is provided by a beneficiary with
knowledge of property;
(6) Transfers from one or more coowners solely to one or more
other coowners;
(7) Transfers without consideration between family members;
(8) Transfers by will or intestacy;
(9) Transfers by testamentary or inter vivos trust;
(10) Transfers without consideration to charitable or
educational associations or trusts and like nonprofit corporations;
(11) Transfers between spouses or former spouses resulting
from a decree of divorce, separate maintenance or a property
settlement stipulation;
(12) Transfers as a result of the record owner's failure to
pay any federal, state or local taxes;
(13) Transfers pursuant to mergers or corporations or
transfers by a subsidiary corporation to its parent corporation for
no consideration other than the cancellation or surrender of the
subsidiary's stock;
(14) Transfer of new dwelling units not previously occupied
when the seller warrants that the unit was constructed in
accordance with county and municipal building codes in the
jurisdiction, with the state building code; and
(15) Transfers without consideration between a principal and
straw party for any purpose.
NOTE: The purpose of this bill is to create the West Virginia
Smoke Detector Act which requires evidence that residential
property being transferred has an operational smoke detector
installed in the immediate vicinity or each sleeping area within
all one- to four-family dwellings.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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