Affidavit regarding smoke and monoxide detectors

In 2013, the Connecticut Legislature passed a public act which required, with some exceptions, a home seller to provide an affidavit to his or her buyer regarding smoke and carbon monoxide detectors in the home. Failure to provide the affidavit requires giving the buyer a $250 credit at closing.

The new law was further amended in 2014 to clarify that any affidavit provided at closing under the law would not be a warranty beyond the closing. It also changed the requirement that the carbon monoxide detecting equipment be capable of showing the monoxide reading to requiring it to be able to sense the odorless gas.

The law applies to one or two family residences but not to homes built after October 1, 2005. Those homes should have certificates of occupancy compliant with building code. There is a partial exemption for smoke detectors if the residence had the certificate of occupancy issued on or after October 1, 1985 but in general, a homeowner who signs the affidavit is certifying that the residence has working smoke and carbon monoxide detection equipment. The law is unclear if it applies to homes built prior to issuance of building permits for new occupancy.

Cramer & Anderson attorneys are in support of the public policy reasons behind the public act. Working smoke and carbon monoxide detectors in residences save lives. We encourage everyone to have such detectors installed and working in his or her residence.

Unfortunately the language of the act and affidavit, even with the 2014 amendment, create an unacceptable risk of liability for the seller. The seller’s affidavit contains detailed information about detection equipment on which the buyer will rely.

Specifically the homeowner must represent that:

  1. The house is equipped with smoke detection equipment in working order that is capable of sensing visible or invisible smoke particles;
  2. The house is equipped with carbon monoxide detention equipment capable of sensing carbon monoxide present as a reading in parts per million;
  3. The equipment is installed in accordance with the manufacturer’s instructions and in the immediate vicinity of each bedroom; and
  4. The equipment is capable of providing an alarm suitable to warn occupants when such equipment is activated.

Most of us who have detectors in our homes, either wired or battery operated, are not familiar enough with the detectors and how they were installed to know if they meet these standards. We probably purchased them and plugged them in or had a contractor install them. Hopefully, we follow a regular schedule to change the batteries and test the detectors for our own safety, but that is the extent of our personal knowledge. Most of us have no idea whether the equipment exceeds the standards under which it was tested and approved.

If a seller signs such an affidavit and a fire occurs at some future date or if someone is incapacitated or dies from carbon monoxide poisoning a lawsuit is likely to be filed against the person who signed the affidavit attesting to the presence and functionality of the smoke and/or carbon monoxide detectors. We do not believe our clients should take such a risk and we do not believe the disclaimer on the affidavit would provide protection against such a lawsuit.

The law provides that the seller shall give the buyer a $250 credit at closing if the affidavit is required and not provided. Our recommendation is that a seller not sign the affidavit and credit the buyer with $250. The buyer can use the credit to purchase and install new smoke and monoxide detectors in the home. If a seller provides a credit his or her liability under the new act clearly ends at the closing of title.