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Shawn D. Batten
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Staying Out of Hot Water - What Developers Need to Know About 
California Civil Code Section 1101 

By: Shawn Batten

Owners of shopping centers in California, take note: Except in certain circumstances, you have until January 1, 2019, to equip your properties with water-conserving plumbing fixtures.

California Civil Code Section 1101 requires that all noncompliant plumbing fixtures located in commercial structures built and available for use on or before January 1, 1994, be replaced with water-conserving plumbing fixtures.  It defines “noncompliant plumbing fixtures” as (a) any toilet manufactured to use more than 1.6 gallons of water per flush, (b) any urinal manufactured to use more than one gallon of water per flush, (c) any showerhead manufactured to have a flow capacity of more than 2.5 gallons of water per minute, and/or (d) any interior faucet that emits more than 2.2 gallons of water per minute.  Section 1101 defines “water-conserving plumbing fixtures” as any fixture that is in compliance with current building standards applicable to newly-constructed commercial or residential buildings.

Section 1101 gives an owner or its agent the right to enter premises, upon notice to a tenant, in order to remove noncompliant fixtures and install, repair, test and maintain required water-conserving plumbing fixtures.  Once a water-conserving plumbing fixture has been installed, Section 1101 makes a tenant responsible for notifying the owner or its agent if the tenant becomes aware that a water-conserving plumbing fixture within the tenant’s unit is not operating at the manufacturer’s rated water consumption level.  The owner or its agent is then responsible for correcting the problem.

Section 1101 is silent as to whether the owner or tenant is ultimately responsible for replacing noncompliant fixtures.  A building owner that wishes to pass this obligation on to its tenant should review its lease to determine if it requires the tenant to bear the costs of compliance with laws of this nature.

Generally, an owner is not subject to penalties under Section 1101 if it fails to comply with its terms.  However, as of January 1, 2014, local building departments will not issue a certificate of occupancy or a building permit for alterations or improvements unless the noncompliant fixtures have been replaced as follows: (a) for a building addition or additions which would cumulatively increase the floor area of the space in the building by more than 10%, all noncompliant fixtures in the building would need to be replaced, and (b) for building alterations or improvements in which the total construction cost of the improvements for which the building permit is sought amounts to $150,000 or more, all noncompliant fixtures that service the specific area of the alterations or improvements (as opposed to the entire building) would need to be replaced.

Section 1101 also requires that as of January 1, 2019, any seller of all or a portion of a shopping center built and available for use on or before January 1, 1994, must disclose to a potential purchaser the Section 1101 water-conserving fixture requirement described above as well as whether or not the property is in compliance.  However, this disclosure requirement does not apply if the owner is merely leasing the property to a tenant.  Additionally, Section 1101 does not require that the necessary fixtures be installed before the closing of a sale of such non-compliant property.

Section 1101 does not apply to (a) registered historical sites, (b) real property for which a licensed plumber certifies that, due to the age or configuration of the property or its plumbing, installation of water-conserving plumbing fixtures is not technically feasible, or (c) a building to which water service is permanently disconnected.  Additionally, if a demolition permit is issued with respect to a shopping center, the owner will be exempt from complying with Section 1101 so long as the shopping center is demolished within one year of the date such permit was issued.

Owners should also be aware that Section 1101 gives local municipalities or retail water suppliers the right to enact ordinances or establish policies that may be more restrictive than the ones described above.  Owners should check with their city and county to determine the requirements applicable to a project.

If you have further questions regarding Section 1101, please contact us.

Cox, Castle & Nicholson LLP is a full service law firm offering comprehensive legal services to the business community and specialized services for the real estate and construction industries.  Reproduction is prohibited without written permission from the publisher.  The publisher is not engaged in rendering legal, investment, business or insurance counseling through this publication.  No statement is to be construed as legal, investment, business or insurance advice.

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