The following information is from Helping Handbook, a Resource for Individuals, Families and Small Businesses put together by Morrison & Foerster LLP for the 2017 Wildfires in Northern California. It provides an overview of some issues that individuals, families and small businesses may face as a result of the recent wildfires. This information is current through October 20, 2017. This is for general information purposes only. It does not constitute legal advice and should not be relied on as legal advice. Myers, Widders, Gibson, Jones & Feingold LLP renders legal advice only after compliance with certain procedures and when it is legally and ethically permissible to do so. Readers acting on any information on this website are urged to seek tailored legal advice from their legal counsel.

REPLACEMENT OF POSSESSIONS

 

When the wildfires destroyed my residence, I lost almost all of my personal possessions. Can anyone help me obtain replacement clothes and necessities? What about replacing my television, computer, etc.?

 

You should be able to replace personal property that was destroyed with insurance proceeds and grants or loans from several federal or state programs.

 

First, if you have homeowners insurance or renters insurance, the policies typically include provisions for the replacement of personal property subject to various conditions and policy limitations. If you were renting your primary residence, you should find out if your landlord named you as an additional insured on the landlord’s policy, in which event it may provide benefits for you.

 

Second, the SBA may provide a Home and Personal Property Loan for possessions (up to $40,000) to both homeowners and renters. The amount of an SBA loan depends on the actual cost of repairing or replacing the damaged items less insurance recovery, grants, etc. The loan can be used to repair or replace personal property such as clothes, furniture, automobiles, and consumer electronics — but an SBA loan cannot be used to replace luxury or extraordinarily expensive items such as personal pleasure boats, airplanes, RVs, and fur coats, or to pay for upgrades or make additions to the home unless required by building codes. Property such as antiques or collections of rare goods that may have market values in excess of their functional value are covered only for the amount of their functional value. (For example, reimbursement for a collection of four rare quarters would be $1.00, not the potential price at a coin show.)

 

Third, to the extent your personal property losses exceed the amount of your insurance coverage and SBA loans, and assuming other conditions are met, FEMA will sometimes provide disaster victims with assistance in replacing furniture lost when their primary residence was destroyed. If you need such assistance, you should specifically request assistance for furniture costs from FEMA and show that you have a need. 

 

DEMOLITION AND CLEAN UP

 

Do I need a permit to demolish a partially-destroyed residence or to clean up debris caused by the fire?

 

Homeowners are advised not to conduct their own demolition of partially burned structures or perform debris or ash removal. These activities may present serious health risks due to the presence of asbestos, lead, and other hazardous materials. Homeowners may be eligible for programs sponsored by CalRecycle or other agencies to complete demolition and debris removal at no cost. If you move or spread the fire debris, you may lose your eligibility or become liable to others. We recommend that you wait until state assistance is in place to sign up for these programs. You will then need to sign a “Right of Entry” form granting permission to the responsible agency to access and clean up the property.

 

Additionally, if you have homeowners’ insurance that covers debris removal, you should inform the agency in charge of the cleanup and you likely will be required to pass that specific portion of the insurance proceeds through to state or federal agencies. Contact your county to determine the appropriate process in your area, or visit http://wildfirerecovery.org/debris-removal/ for updates.

 

If you nevertheless undertake demolition, note that, in general, demolition permits are required from city or (for unincorporated areas) county government before removing major structures. These permitting requirements may be relaxed or expedited for structures affected by the wildfires. Check with your local permitting jurisdiction for requirements before conducting any structural demolition work.

 

If you nevertheless undertake debris removal, be sure to wear appropriate protective clothing including face masks, gloves, and eye protection. You may be required to submit plans and obtain a permit from your local permitting jurisdiction for removal of building debris and ash and soil sampling may be required to test for hazardous substances. The California Department of Toxic Substances Control (DTSC) has stated that immediate efforts to clean up ash, charred debris, and other contaminated materials from burned residential structures are exempt from hazardous waste permit requirements. This exemption does not apply to long-term restoration activities. Check with the DTSC for more information and advice regarding your specific situation. You can contact DTSC at http://www.dtsc.ca.gov/ or (916) 255- 6504.

 

Am I required to send any debris I clean up to a special collection facility?

 

Much of the debris likely includes materials that must be properly disposed of to avoid soil or water contamination. Solid waste landfill operators may be granted special emergency waivers to accept debris they would not otherwise be allowed to accept. To the extent hazardous materials cannot be separated from other burned materials (as is likely in a burned residential structure), they may be accepted along with other debris at municipal landfills. Household hazardous materials (e.g., paints, fertilizers, automotive fluids, batteries, and electronic waste) that can be separated from other burned materials should be taken to a local household hazardous waste collector. The following website contains a list of household hazardous waste collection facilities: http://www.dtsc.ca.gov/HazardousWaste/UniversalWaste/HHW.cfm.

 

REPAIR AND REBUILDING

 

My primary residence, which I own, was destroyed by the wildfires. Who can help me have it rebuilt? If my residence was not insured, or the insurance is insufficient, are there any programs that might help me rebuild?

 

As with other types of assistance, you should first look to insurance proceeds and charitable donations to cover the costs of rebuilding and repair. To the extent you were uninsured or underinsured, the SBA, FEMA or the state may be able to help.

 

My primary residence, which I own, was destroyed by the wildfires. Will I need a permit to rebuild it?

 

As a general rule, a building permit is required whenever structural work is involved or when the basic living area of a home is to be changed. This could include separate permits for roofing, electrical, heating, and plumbing. Typically, the contractor overseeing the rebuilding/repair will obtain the necessary building permits from the city or county building or planning department. See rebuilding and repair contact information for fire-affected areas below. In addition to building permits, depending on the zoning requirements in place for your residence, you may need to obtain zoning approval as well.

 

Following natural disasters, various cities and counties may contemplate special treatment for building permit and zoning applications submitted by wildfire victims (for instance, providing plan review and issuing building permits on an expedited basis, and at no cost for anyone whose home has been destroyed by fire). Make sure to ask or have your contractor ask about any special building permit programs available for wildfire victims.

What happens if I do not get a building permit?

 

If the authorities learn you have undertaken repairs or rebuilding without obtaining a necessary permit, you will generally pay a fine and may be ordered to tear down any construction that was done without authorization. The amount of the fine varies by jurisdiction. If you sell your property, you are required by law to disclose work that has been done without the required permits and that could lower the sale price or jeopardize the sale of your property altogether.

 

My house was built before the current building codes were in place. When rebuilding, do I have to conform to the new building codes?

 

Houses must generally be constructed according to the codes in effect at the time the reconstruction permit is issued. Some cities and counties may not require conformance to new building codes for repairs are considered “minor.” You should check your insurance policy or call your insurance carrier to determine whether your homeowner's policy provides for upgrades to the current building code. Some policies do not pay for building code upgrades. If the local government’s zoning requirements have changed for your property since the house was built, you will generally be required to conform to the new zoning rules. This could affect the size or design of the house and in some cases may affect the allowable uses of the property. Be sure to check with your local planning department.

 

Is it a good idea to be my own general contractor?

 

Unless you are very experienced in the construction business, no. As an owner/builder, you assume responsibility for the overall job, which may include responsibility for state and federal taxes, workers’ compensation insurance, and other requirements and liabilities.

 

If I’m not my own contractor, how will I know which contractor to hire?

 

If possible, use only contractors referred to you by someone you know and trust. Unscrupulous contractors may try to solicit work from you, offering to repair or rebuild your home for a low price. Remember, if something seems “too good to be true” it probably is. Although you may be anxious to get things back to normal, avoid acting too quickly. Take time to determine exactly what you want done and make sure the contractor is licensed and reputable and can address all of your concerns. If possible, get at least three competitive bids based on the same set of specifications before making your decision. Beware of door-to-door offers of repair services and never provide the contractor with a cash deposit on a handshake. You should get a written contract that details every aspect of the work to be done and a performance and payment schedule. Before signing a contract with a contractor, be sure to check his or her license status and references.

 

Must a contractor be licensed?

 

State law requires that contractors working on any job requiring $500 or more of work be licensed by the California Contractors State License Board (CSLB). Ask to see the contractor’s license (called a “pocket license”) that has the CSLB’s license number on it (state contractors’ licenses are solely numeric; no alphabetic characters are included in them), as well as an additional form of identification for verification (the contractor’s license should be in the contractor’s own name). You can verify a contractor’s license status at the CSLB website, http://www.cslb.ca.gov/ or by calling CSLB’s toll-free automated telephone system (800) 321-2752. The CSLB has a hotline for disaster victims, (800) 962- 1125 (weekdays only).

 

Do I need a written contract?

 

State law requires that home improvement contracts for $500 or more in labor or materials must be in writing. Anything you sign can be considered a contract or otherwise used by a contractor as authorization to go forward with a project — so do not sign anything until you completely understand what it is.

 

Can I change my mind after I sign the contract?

 

If your residence is within a federally, state, or locally declared emergency area, California law allows you to cancel a contract for repair of a residence damaged by the disaster within seven business days of signing the contract. For other contracts, you may cancel within three business days of signing, provided the contract was solicited some place other than the contractor’s place of business (such as in your own home). By law, the contractor must give you written notice of this right to cancel.

 

How much can a contractor require as a down payment?

 

California law limits the amount of the down payment for any home improvement contract (including debris removal) to the lesser of $1,000 or 10% of the contract price, excluding finance charges. Except for this down payment, California law prohibits a contractor from collecting payment for work that has not been performed or materials that have not been delivered. As a general rule, you should not make cash payments to contractors.

 

How can I make sure the work progresses as scheduled in the contract?

 

The contract should provide a description of the work to be done, the time period which it is to be done (including the date on which “substantial commencement of work” should occur), the materials to be used, and the equipment to be used or installed. Contractors often ask for progress payments as the work progresses. California law requires that the contract must specify all of the work that is to be completed before a progress payment is due, and that the progress payment cannot exceed the value of the work performed and materials purchased up to that point. It is customary to make the last payment a “retention” payment, ordinarily 10%, which you retain until the job is completed and the city and county has approved all work.

 

What happens when the contractor uses subcontractors or suppliers?

 

You should protect yourself from liens against your property in the event the contractor does not pay the subcontractors or suppliers. California’s Mechanics’ Lien Law allows those who furnish labor or materials to your home to record a lien against your property if they are not paid even if you have paid your general contractor in accordance with the contract. At its most extreme, a lien may result in the forced sale of your property if you are unable to pay the amount of the lien. At the very least, a lien will make your property more difficult to finance or sell.

 

California law requires the contractor to provide you with a “Mechanics’ Lien Warning.” That warning suggests measures you can take to prevent liens against your home, such as:

     • getting a list from your contractor of all subcontractors and material suppliers and monitoring when they start work or deliver materials;

     • paying close attention to any “Preliminary Notice” received from a subcontractor, which provides notice that the person has a right to record a  

       lien if not paid; and

     • if permitted by your contract with the general contractor, paying with a joint check, payable to both the contractor and the subcontractor or  

       material supplier.

 

The law provides that contractors, on request, must furnish an unconditional release of potential mechanics’ lien claims once you have made payment to the subcontractor for that specific work or materials. Note that the general contractor can also place a lien on your house if you fail to pay for his or her services.

What if my contractor doesn’t perform the work I contracted for, or does a poor job?

 

If you have a dispute with a contractor that you are not able to resolve on your own, you may contact CSLB to file a complaint against the contractor. You can find more information online at http://www.cslb.ca.gov/ or by calling (800) 321- 2752. Depending on the nature and severity of the complaint, and whether the contractor is licensed or unlicensed, CLSB may direct the parties to a dispute resolution program, investigate potential violations of law, or pursue legal action against the contractor.

 

What effect does an arbitration clause have in my contract?

 

By agreeing to arbitrate, you are agreeing to have a dispute with your contractor decided by a neutral third party (known as the arbitrator) rather than by a judge or jury (unless the arbitration is non-binding). Some consumers prefer arbitration to court proceedings because arbitration is usually less expensive. But if you proceed with binding arbitration, you waive almost all grounds for seeking review of the arbitrator’s decision in court; in almost all circumstances, the arbitrator’s decision will be the final decision, even if you think the arbitrator made a mistake of fact or law.

What is the effect of a clause allowing the contractor to recover attorney’s fees and costs from me if there is a dispute?

 

In California, in a legal dispute about a contract, each side pays its own attorney’s fees and costs, but that arrangement may be overridden in a written contract. An attorney’s fees clause written for the contractor means that, if the contractor prevails in a dispute in arbitration or in court, you will have to pay the contractor’s attorney’s fees and costs. California law provides a reciprocal benefit with regard to attorney’s fee clauses — meaning that if you are the prevailing party, you may recover your attorney’s fees and costs even if the clause does not specifically provide that you are entitled to do so.

 

A man who said he was a contractor offered to clean up my property, assess the damage to it for the purpose of obtaining grants and loans, and rebuild my house for $50,000, with just $5,000 down. Fortunately, I have the money available. Should I hire him?

 

You should pause, not feel pressured, and then proceed only with the utmost caution. Before hiring anyone as a contractor or other service provider in connection with damage to or destruction of your property, you should take care to be an “aware consumer.” As discussed above, if a person represents himself as a contractor, you should ask for references from prior jobs and obtain his contractor’s license number and check that it is valid, including checking for valid photo identification. Most entities and programs that will provide property owners with funds to rebuild or replace damaged property have their own inspection and assessment programs. As a result, unless the funding entity instructs you otherwise, you need not hire a private person or firm to perform an inspection of your property as part of the application process.

 

Although my primary residence, which I own, was not destroyed during the wildfires, it was damaged and is no longer habitable. Can I get any assistance to repair my house or mobile home?

 

Yes. In addition to charitable grants, loans, or insurance proceeds, FEMA and the SBA may be able to help you with repairs.

 

FEMA, through its IHP, provides grants to homeowners to repair damage from the disaster that is not covered by insurance. The goal is to repair the home so it is in a safe and sanitary condition, which may not return a home to its condition before the disaster. These grants are available only when a disaster has been declared and individual assistance has been authorized. As of October 20, 2017, the maximum assistance available to an individual or household under the IHP is $34,000.

 

If you apply for IHP, FEMA will inspect your home and base the amount of its grant on the reasonable cost of repairs to the damaged property. Repairs covered by IHP include:

     • structural parts of a home (foundation, outside walls, and roof);

     • windows, doors, floors, walls, ceilings, and cabinetry;

     • septic or sewage system;

     • well or other water system;

     • heating, ventilating, and air-conditioning systems;

     • utilities (electrical, plumbing, and gas systems); and

     • home entrances and exits, including privately owned access roads.

 

If you own a mobile home and it is your primary residence, IHP will cover repair costs related to blocking, leveling, and anchoring the mobile home.

 

If your home needs more extensive repairs than FEMA will fund, the SBA may be able to help with a Home and Personal Property Loan.

 

PURCHASE AND SALE OF DAMAGED PROPERTY

 

Before the wildfires, I had agreed to purchase a house that was subsequently destroyed by the wildfires. Must I complete the purchase?

 

It depends on the terms of the purchase agreement and whether title to, or possession of, the property passed to you before it was destroyed. If title to the property had already passed and you were the owner at the time of destruction, you may be eligible for assistance from your insurer or from the various sources of aid identified in this handbook. Otherwise, barring contrary language in your purchase and sale agreement, the Uniform Vendor and Purchaser Risk Act, Civil Code section 1662 allows a purchaser to back out of an agreement for the sale of real property if “all or a material part” of the property was destroyed before the transfer of title or possession. If you face this situation, you should obtain the advice of a real estate attorney.

CONTACT

T: (805) 644-7188

F: (805) 644-7390

5425 Everglades St. Ventura, CA 93003

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