Whenever a real estate property is transferred, a Transfer Disclosure Statement (TDS) must be filled by the seller, the listing agent, and signed by all parties. Although the seller’s agent is likely to help the seller in filling out her section of this document, it is not the agent’s job to do it.
The TDS asks for an answer by the seller on all the following questions. Note that other disclosure documents exist, some that are precision of the TDS questions. For example the Environmental Hazards require the use of other documents such as the Flood Disclosure.
Items Included with the Property
- Required Inspection Reports where done
- The owner is still occupying the premises
- List of personal property items sold with the property1:
- Trash Compactor
- Washer / Dryer
- Evaporation Coolers
- The kitchen sink includes a Garbage Disposal
- Washer / Dryer Hookups are available
- Rain Gutters are installed
- Burglar Alarms are installed and working
- Carbon Monoxide Devices are installed and in compliance
- Smoke Detectors are installed and in compliance
- Fire Alarm is installed and in compliance
- TV Antenna is available
- Satellite Dish is available
- Intercom is installed and working
- Central Heating is available and working (not including portable units)
- Central Air Conditioning is available and working (not including portable units)
- Wall/Window Air Conditioning is available and working (note that such units are not considered personal property because removing them leave a hole in the wall/window.)
- Sprinklers are installed and are working; there may be an automatic controller or not
- Waste water goes to the Public Sewer System or a Septic Tank
- Permanent Sump Pump is installed (most often in a basement)
- Permanent Water Softener available and in working order
- The house comes with a Patio/Decking
- Built-in Barbecue is available and in working order
- Gazebo is installed
- Security Gates are installed and in working order
- Garage is available and whether it is attached, has an automatic garage door with a door opener and the codes if required
- Carport is available
- Sauna is available and works
- Hot Tub / Spa is available and working and whether it has a Locking Safety Cover (required for families with young children)
- Pool is available and functional and whether a Child Resistant Barrier is available
- Pool/Spa Heater is available and functional and whether it uses Gas, Solar, or Electric
- Water Heater is available and working and whether it uses Gas, Solar, or Electric
- How Water Supply comes to the premises: City, Well, Private Utility, or some other means
- Whether and How Gas is Supplied: Utility Company or Bottled (Tank)
- Windows are provided with mosquito (and other insects) protection Screens
- Windows have Security Bars (i.e. outside bars, think jail-like window bars) and whether those bars can quickly be released from Bedroom Windows
- Water-Conserving Plumbing Fixtures on all faucets (kitchen, sinks, bathrooms, showers)
- List of Exhaust Fans (i.e. bathrooms, laundry room, gas water heater)
- Whether the house uses 220 Volts and if so, where such wiring is
- List of Fireplaces
- List of Gas Starters (fireplaces, water heater, range, barbecue)
- List of roofs and their approximate age
This list is not exhaustive. Anything else that is part of the sale needs to be listed.
Significant Defects or Malfunction
If anything is known to not be in working condition, then the Seller must disclose the current condition clearly. Specifically, the Seller must disclose problems with the following items:
- Interior Walls
- Exterior Walls
- Exterior Walls/Fences
- Electrical Systems
- Other Structural Components
A description is expected for any defect disclosed so it is clear.
Note that certain items may make the house non-compliant (for example a missing carbon monoxide device or no children proof barrier around the swimming pool.) This does not prevent the transfer of the property, but it has to be clear to the buyer at the time the transfer takes place. Actually, even a home that is not currently habitable can still be transferred, something that happens often since many investors like such homes.
Property and Land Concerns
Further, the Seller must disclose whether any one of the following is known:
- The property is affected by hazardous materials such as:
- Radon gas
- Lead-based paint
- Chemical tanks
- Contaminated water or soil
- Parts of the property is in common with a neighbor when maintenance has an impact on the property
- Drive ways
- Encroachments, when a neighbor is using part of the property without consent; this is particularly important as a long encroachment (5+ years) entitles the current user to property right over that part of the real property
- Easement, when one neighbor gives right of way over his property to another owner; this is by contract so the easement will not allow the beneficiary the right of ownership for usage
- Whether room additions or structural changes where made without a permit or non-compliant to existing building codes
- Fill on the property
- Whether the soil experienced settling, slippage, or sliding
- Flooding, draining, or grading problems
- Major damage from:
- Zoning problems:
- Zoning violation; built a residential house in an industrial park
- Nonconforming use; opening a restaurant in your residence
- Setback requirements; space between your buildings and property limits
- Neighborhood noises or similar nuisances (i.e. close to airport, trucking company, nightclub)
- CC&R or other deed restrictions or obligations
- Homeowners’ Association (HOA)
- Whether common areas exist (i.e. laundry room, parking, etc.)
- Notice of abandonment or citation against the property
- Any type of lawsuit that involves the property in any way and thus may affect the buyer’s right over the property
Property in Compliance
As the seller you also have to sign on the fact that the existing smoke detectors are in compliance with the Health and Safety Code.
Further the water heater tank is expected to be isolated and well strapped.
Listing Agent Section
The Listing Agent attaches his Agent Visual Inspection Disclosure (AVID) which is a separate form. The TDS often includes the main items with a potential problem.
The buyer’s section includes the buyer’s signature. This ensures that the document was indeed transmitted to the Buyer for peruse. The Buyer should review each point and understand them before signing. Also, the buyer is given the choice of rescinding her offer if so they choose within a few days at no fault of the buyer or seller.
Note that the buyer is expected to sign the TDS and then officially rescind her offer with a different form if so inclined.
“AS IS” Sale
There is only one legal type of “AS IS” sale: a Foreclosure. All other sales, even if the seller says it is “AS IS” and the buyer accepts it, require the Transfer Disclosure Statement.
Sellers of Manufactured and Mobile homes and their agents also have to provide the buyer with a transfer disclosure statement. However, in this case the name of the statement is:
Manufactured Home/Mobilehome Transfer Disclosure Statement
The statement is similar. It includes specifics of such homes.
Source: CAL. CIV. § 1102.6d
1 Personal Property, items that can be moved out easily, are generally viewed as items that the owner will take along when moving out. This is why the Real Estate contracts are so verbose about such items because if they are missing at the time the buyer takes over the property, the price paid for the estate was not the right one.
Sources: CAL. CIV. § 1102, CAL. CIV. § 1102.1, CAL. CIV. § 1102.3, CAL. CIV. § 1102.4, CAL. CIV. § 1102.5, CAL. CIV. § 1102.6, CAL. CIV. § 1102.7, CAL. CIV. § 1102.8, CAL. CIV. § 1102.9, CAL. CIV. § 1102.10, CAL. CIV. § 1102.11, CAL. CIV. § 1102.12, CAL. CIV. § 1102.13, CAL. CIV. § 1102.14, CAL. CIV. § 1102.16, CAL. CIV. § 1102.17
For the Transfer Disclosure Statement of 2014, download the PDF from Sec. 15, Chapter 71 (pp. 18–22), Statutes of 2014 (link at the top) and read pages 18 to 22.