Talkin' Toilets

By Dave Fratello | November 19th, 2013

Today is World Toilet Day (we are not making this up), and therefore a good time to check in on Manhattan Beach's Toilet Retrofit Ordinance.

As any buyer or seller of Manhattan Beach real estate has experienced over the past 3 years, the city requires a report on current toilets in each home at the time of sale. Toilets are supposed to meet the new standard for ultra-low-flow flushes (1.28 gallons per flush).

Buyer and seller sign the "Toilet Retrofit Declaration" and/or "Toilet Retrofit Transfer of Responsibility" forms, stating whether the existing toilets in the home are compliant, or not, with the 1.28gpf standard.

In theory, the buyer is promising to dump any noncompliant toilets within 6 months after taking title. (Somewhat newer, "lower flow" toilets with a 1.6gpf rating are "grandfathered" in through Jan. 1, 2014, and don't have to be switched out currently.)

But, really, experience shows that no toilets have to be changed at all. The city does not enforce the ordinance as originally intended.

True, generally speaking, buyers sign a form saying:

I, the Buyer accept the responsibility for retrofitting the above mentioned property as provided for in Ordinance No. 2138. I understand that I will be required to retrofit the property or apply for a demolition permit within 180 days following the change of ownership...

What's missing there? The buyer is "required to retrofit," or else what?

Or else... they'll have to talk about it again later.

The city's first idea was to require upgrades to be completed before close of escrow. It would be a seller responsibility. The ordinance still contains this presumption: "All existing residential buildings shall, at the time of sale before change of ownership, be retrofitted..."

After howls of protest, this became a responsibility that sellers could ask require buyers to take on – as reflected in the form quoted above. This has become standard practice in Manhattan Beach real estate transactions. The work is basically never done by sellers, and it's not even a point of negotiation when buyers take on the job and associated (hypothetical) cost.

For enforcement, the city's plan was to pinch buyers for a deposit, refundable only after the retrofit was done.

So you would put, say, $200 per toilet into the city's hands, go spend a like amount switching the toilets, then go back to the city for your refund.

But now the city does not collect deposits. Tracking all of that money in the pipeline would have been a new hassle. And no one wanted there to be "toilet police" in Manhattan Beach. So the one shred of paper enforcement turned out to be a dead letter.

Going forward, the city might enforce the requirement to change noncompliant toilets at the time a homeowner seeks a permit for remodeling work. Then, during the permit process, any noncompliant toilets can become an open issue that has to be remedied for the permit to go through. (This appears to be a requirement of the state building codes beginning next year.) Obviously, new construction will always include the newly required 1.28gpf toilets across the board.

It's nice to say that the current non-enforcement policy works in buyers' favor, at least, but it's also necessary to say that the original intent of the city ordinance has been flushed because the policy was watered down.

There will be a next act.

Unlike the plastic-bag ban, which MB pioneered among California cities in 2008, the toilet retrofit requirement is not an example of a "green" policy that MB chartered on its own. There's a state law, and state building codes, driving this. Cities need to comply.

On Jan. 1 next year, that exception for 1.6gpf toilets goes away.

Every home will have to get 1.28gpf toilets at the time of sale. Or within 6 months. Or else?

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Bonus Fact 1: World Toilet Day, the real thing, was declared by the U.N. and exists to promote safe sanitation as a "human right." They say 2.5 billion people worldwide do not have access to a "clean and safe toilet." So if you want a little perspective to go with any gripes you may have about MB toilet policies, why not ponder that a bit?

Bonus Fact 2: This is an actual quote from Mahatma Gandhi: "Sanitation is more important than independence."

Bonus Fact 3: Actor Matt Damon is a renowned supporter of World Toilet Day. He has declared, tongue in cheek apparently, that he simply won't go to the bathroom until the whole world has access to clean and safe toilets. You think Lent is long? He made the pledge in February.

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