Effective January 1, 2014, Seller(s) of one or two family residential buildings for which a building permit for new occupancy was issued prior to October 1, 2005, must present to the Buyer an affidavit certifying two things:
1) that such building permit for new occupancy was issued on or after October 1, 2005, or that such residential building is equipped with smoke detection and warning equipment complying with the Act.
AND
2) that the residence is equipped with carbon monoxide poisoning detection and warning equipment complying with the Act (or does not pose a risk of carbon monoxide poisoning because the building does not contain a fuel-burning appliance, fireplace or attached garage).If a Seller fails to comply by signing this affidavit, they shall credit the buyer the sum of $250.00 at the closing.
However, Sellers should beware that the affidavit contains the following affirmative representations as to both Smoke Detectors and Carbon Monoxide Detectors:
The equipment is in good working order, and 1) are capable of sensing visible or invisible smoke particles (for smoke detection devises) and are capable of showing the amount of carbon monoxide present as a reading in parts per million (for carbon monoxide devices); 2) are installed in accordance with the manufacturer’s instructions and in the immediate vicinity of each bedroom (for smoke detection devices); 3) do not exceed the standards under which such equipment was tested and approved; and 4) are capable of providing an alarm suitable to warn occupants when such equipment may be operated using batteries. The Seller must also represent whether such devices are hard-wired, battery operated or plug-in with a battery backup.
Notwithstanding the fact that the affidavit also contains additional language that the “affiants possess no special technical knowledge regarding the inner workings of smoke and carbon monoxide detectors and that Buyer(s) have had an opportunity to perform a home inspection and have had the opportunity of assessing whether the installed detectors satisfy the requirements detailed above”, the affidavit required by the Statute could be interpreted to create substantial exposure to the Sellers for post-closing liability in the event of an accident or injury to the Buyers resulting from a defective smoke or carbon monoxide detector that may not be in compliance with the representations sworn to by the Seller in the closing affidavit.
As a result, Sellers may choose to credit the Buyer the $250.00 rather than expose themselves to the potential liabilities which may arise from their sworn statement.