New Statutory Requirements for Property Owners: Water Conserving Fixtures

October 27, 2014

All of us who live in or own property in California are well aware of the drought conditions that have been plaguing our state. Recently a new state regulation went into effect that was actually passed before the most recent drought, but that is likely to be strongly enforced due to our current drought conditions. These new regulations have to do with water-conserving plumbing fixtures and will affect all property owners, including those who own single family homes and those who rent out their properties.

The new regulations are a part of California's Civil Code. It is somewhat abnormal that the law is in the civil code, rather than being a regulation of the health and community development department which covers building codes. This unfortunate placement means that some people who are trying to comply with all of the appropriate regulations may not initially find the new rules. The Woodland Daily Democrat reported on the changes last year. Their report quotes Gregory Mahoney, the chief building official for the City of Davis, who told them that, "The new code did not go through the typical code development process, this was legislated by State lawmakers…We had no opportunity for input as we do in the normal code development process."

Even before these new regulations were passed, any toilet or urinal sold or installed in California since January 1, 1994 had to be "low-flow." Low-flow toilets use a maximum of 1.6 gallons of water per flush, and low-flow urinals use a maximum of one gallon of water per flush. Then, these new regulations were enacted in 2009. They were designed to update the plumbing fixtures in pre-1994 buildings up to the same standards required in new buildings. These regulations apply to both residential and commercial properties. While the law was passed in 2009, it did not go immediately into effect. Instead it went into effect on January 1 of this year. In addition to the low-flow requirements for toilets and urinals, shower heads and interior faucets are also affected. Shower heads cannot have a flow capacity of more than 2.5 gallons of water per minute under the regulations, and interior faucets cannot have a flow capacity of more than 2.2 gallons per minute.

Some properties are already affected by these regulations. If you apply for a building permit for any commercial or multifamily residential property, you will have to install these sorts of features if:

• Your total building addition (from all concurrent permits) increases the floor area of the building by more than 10% (all non-compliant fixtures in the building need to be replaced);
• Your building alteration or improvement's estimated cost is over $150,000 (only the fixtures servicing the altered or improved area need to be replaced; or
• Your alteration or improvement to a room requires a building permit (in which case the fixtures in that room must be compliant).

Single-family residences are also covered by the new regulations, and if there is any building alteration or improvement requiring a permit, all of the non-compliant fixtures need to be replaced.

Even if you are not seeking a building permit, your property will still ultimately be covered by these regulations. All single-family residence owners are required to replace all non-compliant fixtures by 2017, and all multifamily and commercial properties must be retrofitted by 2019. The obligation for commercial and multifamily properties is not specifically placed on the owner by the statute, but any tenant is required to notify the landlord of non-compliant fixtures and the landlord is entitled to enter the unit to replace them with compliant fixtures.

Anyone who sells or transfers property during or after 2017 for single-family homes and after during or after 2019 for multifamily or commercial properties will be required to disclose in writing whether the property is in compliance with these regulations. It is unclear whether disclosure will be required in order to lease a property, as it is unclear whether a tenant will be considered a "transferee."