Fair Disclosure and Airport Impact Statements in Real Estate Transfers (2012)

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60 APPENDIX F TYPICAL AIRPORT FAIR DISCLOSURE ACT PROVISIONS376 1. Statement of Purpose The purpose of the Typical Airport Fair Disclosure Act (Act) is to provide prospective purchasers of residential real property with notice of the location of any airport, as defined in section 2, that affects residential real property offered for sale or otherwise transferred unless a transfer is exempt under Section 3. 2. Definitions (a) The term Air Installation Compatible Use Zone means any military air installation affecting land in its vicinity as shown on a map that plots contours for military aircraft noise and compatible land uses based on a study conducted in accordance with 32 C.F.R. § 256.1, et. seq. (b) The term airport means an area of land or other hard surface, excluding water, that is used or intended to be used for the landing and takeoff of aircraft, including any buildings and facilities, and includes an airport area as defined or described in Sections 2(a), 2(e), 2(i), 2(o), and 4(b) of this Act. (c) The term airport authority means the state or any political subdivision thereof or any corporation, entity, or other organization created by law for the establishment, operation, or control of an airport. (d) The term Airport Disclosure Statement means a written statement that identifies an airport as defined in Sections 2 and 4 and is delivered by a seller or a seller’s broker or agent to a buyer or a buyer’s broker or agent as required by Sections 4, 5, and 6 of this Act. (e) The term Airport Influence Area means all property in the vicinity of an airport that is exposed to aircraft noise and overflight and that has a day-night average sound level of sixty- five decibels or higher as determined by the responsible airport or airport authority and shown on a map recorded in each county having property within the Airport Influence Area. (f) The term buyer means an individual or trustee or a corporation, partnership or any other entity, either directly or indirectly through a broker or agent, who is attempting to acquire or is acquiring legal or equitable title or a possessory interest in residential real property and includes a transferee as defined in Section 2(r). (g) The term dwelling unit means any building, structure, or portion thereof which is occupied or that is designed or intended to be occupied as a residence by one or more persons. (h) The term final settlement means when a seller delivers a deed of conveyance to a 376 See Section VI of this digest for comments and citations that were omitted for the Appendix.

61 buyer or transferee of residential real property. (i) The term Noise Exposure Map means a map submitted by or on behalf of an airport to the Federal Aviation Administration in accordance with its Regulations appearing at 14 C.F.R. Part 150, Airport Noise Compatibility Planning or any successor regulation. (j) The term offer to purchase means a buyer’s written offer to purchase residential real property in any form including but not limited to a real estate contract signed by a buyer and presented for a seller’s acceptance, a lease with an option to purchase, the exercise of an option to purchase, or an offer to exchange property for residential real property. (k) The term real estate contract means any of the following: (1) an executed agreement for the purchase and sale of residential real property; (2) an executed lease with an option to purchase residential real property; (3) an executed lease-with-obligation-to-purchase agreement for residential real property (4) an executed installment land sale contract for residential real property; or (5) an exercise of an option to purchase residential real property. (l) The term residential real property means: (1) any land in this state to which is affixed not less than one or more than four dwelling units; (2) any estate or interest in an unimproved housing lot or lots to be improved by not less than one or more than four dwelling units; and (3) any land or tract of land that is divided or proposed to be divided over any period into one or more lots, parcels, units, or interests, which are offered, known, designated or advertised as a common unit by a common name or as part of a common promotional plan of advertising and sale. (m) The term sale means an acquisition of residential real property whether by purchase, at an auction, an exchange, an installment contract, a lease with an option to purchase, an exercise of an option, or any other method by which residential real property together with any improvements is sold and includes a transfer as defined in Section 2(p) of this Act. (n) The term seller means an individual or a trustee or a corporation, partnership, or other entity having legal or equitable title who is attempting to sell or transfer or is selling or transferring residential real property either directly or indirectly through a broker or an agent and includes a transferor as defined in Section 2(s). (o) The term traffic pattern means the traffic flow that is prescribed for aircraft landing at, taxiing on, or taking off from, an airfield and includes the actual radar flight paths used by landing and departing aircraft. (p) The term transfer means any form of transfer of title to residential real property by a seller or transferor to a buyer or transferee. (q) The term transfer of title means the delivery of a properly executed deed of conveyance to real property to a buyer or transferee. (r) The term transferee means anyone acquiring title to residential real property

62 pursuant to an instrument that includes the power to transfer an estate or interest in real property. (s) The term transferor means a person who is transferring title to residential real property to a buyer or transferee. 3. Exempt Transfers This Act shall not apply to the following transfers of residential real property: (a) Transfers pursuant to court order such as transfers ordered by a court in the administration of an estate, trust or guardianship or pursuant to a writ of execution, by eminent domain, and transfers resulting from a decree for specific performance. (b) Transfers to a mortgagee by a mortgagor in default by a deed in lieu of foreclosure. (c) Transfers by any sheriff's sale for default on an obligation secured by a mortgage, judgment, tax or other lien. (d) Transfers by a fiduciary in the course of the administration of a decedent's estate, guardianship or trust. (e) Transfers from one co-owner to one or more other co-owners. (f) Transfers made to a spouse or to a person or persons in the lineal line of consanguinity of one or more of the transferors. (g) Transfers between spouses resulting from a property settlement incident to a divorce. (h) Transfers to any government entity. 4. Seller’s Duty to Disclose an Airport (a) When residential real property is offered for sale or otherwise transferred, a seller or other transferor shall disclose to a buyer whether the property is located within the boundaries: (1) of an airport Noise Exposure Map or an Airport Influence Area or (2) of a military Air Installation Compatible Use Zone. (b) If neither Section 4(a) (1) or (2) applies, then a seller must disclose whether the residential real property is within 2 miles of an airport and its traffic pattern, as defined in Sections 2(b) and 2(o), including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or the airport or airport authority, as well as actual radar flight paths used by landing and departing aircraft. 5. Airport Disclosure Statement (a) An Airport Disclosure Statement (1) shall identify the property being offered for sale or otherwise being transferred by its legal description (as shown in the land or tax records for the property) and its street address; (2) shall state whether the property is within the boundaries of an airport Noise Exposure Map or Airport Influence Area or a military Air Installation Compatible Use Zone; and (3) if Section 5(a)(2) does not apply, shall state whether the property is within 2 miles of an airport and its traffic pattern as described in Section 4(b) of this Act.

63 (b) A seller shall be deemed to be in compliance with this Act when the seller discloses an airport by using the following form and thereafter performing the requirements set forth therein and in Section 6 of this Act: Airport Disclosure Statement Pursuant to the Airport Fair Disclosure Act (Act) enacted by this State, [citation], which defines the terms used in this Statement, and (Seller), the owner of residential real property as defined in the Act, situated in the City/County of known as [Legal Description, such as Subdivision, Block, Square, Lot] located at [Street Address], (Property), hereby discloses to and (Buyer), that the aforesaid Property is affected by an airport as described below in that the Property is located within the boundaries of: [COMPLETE ENTRIES THAT APPLY TO THE PROPERTY] ❏ a Noise Exposure Map for the ______ [Name of Airport] submitted by the [Name of Airport or Airport Authority] to the Federal Aviation Administration; ❏ an Airport Influence Area for the ______ [Name of Airport] designated by the [Name of Airport or Airport Authority]; ❏ a military Air Installation Compatible Use Zone, which is also known as the ______ [Name of Military Airport or Air Installation]; or ❏ the property is located within 2 miles of an airport known as the ______ [Name of Airport] and its traffic pattern as defined in the Act, including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or by the ______ [Name of Airport or Airport Authority], as well as the actual radar flights paths used by landing and departing aircraft. This Airport Disclosure Statement shall be attached to and made a part of any real estate contract between the Seller and the Buyer and shall survive the delivery of a deed of conveyance by the Seller to the Buyer at final settlement. Pursuant to the Section 6(d) of the Act, (1) the Seller’s (or other Transferor’s) Airport Disclosure Statement shall be incorporated by reference in the Deed and recorded with the Deed in the land records of the [City/County] in which the aforesaid Property is situated, or (2) the Seller’s (or other Transferor’s) Deed shall include the Notification prescribed by Section 6(d)(2) of the Act prior to its recording in the aforesaid land records.

64 The Buyer is hereby notified that, prior to signing a real estate contract for the purchase of the aforesaid Property, the Buyer should conduct any investigation that the Buyer deems prudent and necessary to assess the impact, if any, of the airport, including but not limited to airport-related noise, that may affect the Buyer’s use and enjoyment of the Property. Date Seller Seller I (We) acknowledge receipt of the foregoing Airport Disclosure Statement: ____________ Date _____________________ Buyer _____________________ Buyer

65 6. Timing and Delivery of Airport Disclosure Statement (a) A seller or a seller’s broker or agent shall deliver an Airport Disclosure Statement at the time residential real property is being offered for sale and/or listed with a broker or agent for sale and not later than when a buyer makes an offer to purchase the property. (b) The Airport Disclosure Statement shall be included within the real estate contract or shall be incorporated by reference in the contract and made an addendum to the contract. (c) The real estate contract shall state that the Airport Disclosure Statement survives the delivery of the deed of conveyance to the property. (d) A Seller’s deed of conveyance (1) shall incorporate an Airport Disclosure Statement that shall be recorded as an addendum to the deed or (2) shall include the following statement and notification: Airport Disclosure Statement and Notification This Notification is required by the Airport Fair Disclosure Act, [citation] enacted by the State of . The property being conveyed hereby is within the boundaries of an airport Noise Exposure Map for the [Name of Airport], an Airport Influence Area for the [Name of Airport] designated by the [Name of Airport or Airport Authority], and/or a military Air Installation Compatible Use Zone for the [Name of Military Airport or Air Installation], or is within 2 miles of the [Name of Airport] or its traffic pattern, including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or the [Name of Airport or Airport Authority] and the actual radar flight paths used by landing and departing aircraft. The property being conveyed may be affected by airport operations including but not limited to noise, vibration, smoke, odor, and/or traffic. This Notification is binding on the grantee and all future grantees and all other transferees of the herein described real property. 7. Buyer’s Duty to Investigate On receipt of an Airport Disclosure Statement in compliance with this Act, a buyer shall have a duty to investigate the current or future impact of an airport on the property that is the subject of the Airport Disclosure Statement. 8. Buyer’s Right to Withdraw an Offer or Rescind a Contract (a) If an Airport Disclosure Statement is not delivered to a buyer or is not delivered to a buyer until after a buyer makes an offer to purchase, the buyer may withdraw an offer to purchase or rescind any resulting real estate contract at any time between the date of the offer

66 to purchase or the resulting real estate contract and the final settlement on the property. (b) A buyer may withdraw an offer to purchase or rescind a resulting real estate contract by notifying the seller or the seller’s broker or agent: (1) by delivering a letter in person to the seller or the seller’s broker or agent; (2) by mailing a letter to the seller or the seller’s broker or agent by certified mail, return receipt requested; or (3) by sending a letter by any other method, including a courier service or electronic mail or facsimile, as long as there is a record showing the delivery of the letter to the seller or the seller’s broker or agent. (c) If a buyer withdraws an offer to purchase or rescinds a real estate contract in accordance with this section, the withdrawal of the offer or the rescission of the resulting real estate contract is without penalty to the buyer and the seller or the seller’s broker or agent shall return to the buyer (or direct any third party to return to the buyer) within two business days the buyer’s deposit and any other funds paid by the buyer in advance of the final settlement for the purchase of the property. 9. Buyer’s Right to Claim Damages (a) If residential real property has been transferred to a buyer prior to a seller’s disclosure of an airport, as defined in Section 2, the buyer may bring an action within one year of the final settlement on the real property to rescind the purchase and the transfer of title to the buyer and to recover any actual damages directly and proximately caused by the seller’s failure to disclose an airport as required by this Act. (b) In lieu of rescission under Section 9(a), a buyer may elect to retain the property and commence an action for actual damages directly and proximately caused by the seller’s failure to deliver an Airport Disclosure Statement as required by this Act. (c) A buyer’s right to claim damages for a seller’s noncompliance with the Act is not affected by a buyer’s sale or re-conveyance of the subject property within one-year of the final settlement on the residential real property at issue. (d) In any legal or equitable action by a buyer based on or arising out of a seller’s non- compliance with the Act, the buyer may recover attorney’s fees and costs as determined by the court. (e) This section does not limit any other rights or remedies a buyer may have under state law, whether by statute or at common law. 10. Limitation of Seller’s Liability A seller is not liable for any error, inaccuracy or omission of any material information provided by a government or governmental agency or by an airport or airport authority on which a seller relied when complying with Sections 4, 5, and 6 of this Act as long as the error, inaccuracy or omission was not within the actual knowledge of the seller.

67 11. Seller’s Compliance as Precluding Liability for Airport Changes After Final Settlement A seller who complies with Sections 4, 5, and 6 has no liability to a buyer regardless of any change in an airport, including its operations, flight paths, or noise, occurring after final settlement. 12. Waiver Prohibited (a) The requirements of this Act may not be waived, orally or in writing, by a buyer of residential real property subject to this Act. (b) Any waiver signed by or on behalf of a buyer is void ab initio. 13. Statute of Limitations Any legal or equitable action based on non-compliance with the Act must be brought within one year of the date of an executed real estate sales contract if there was no transfer of title to the buyer or transferee, or if there was a transfer of title to the buyer or transferee, within one year of the date of the final settlement on the property.