Arizona-2011-SB1585-Introduced

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 32, chapter 20, article 1, Arizona Revised Statutes, is amended by adding section 32‑2114.02, to read:

START_STATUTE32-2114.02. Recorded disclosure for land located under a military operations area

A. The commissioner shall execute and record in the office of the county recorder in each county in this state that includes land located under a military operations area as delineated in the military operations area map prepared by the state land department pursuant to section 37‑102 a document, applicable to land located under a military operations area as delineated in the military operations area map, disclosing that the land is located under a military operations area.

B. If a military operations area changes and people who were notified pursuant to subsection A of this section no longer have property located under a military operations area as delineated in the military operations area map, the commissioner shall execute and record in the office of the county recorder in the county in which the property is located a document disclosing that the land is not located under a military operations area.

C. The attorney general shall prepare in recordable form the documents that are executed and recorded by the commissioner pursuant to this section.

D. The documents that are executed and recorded by the commissioner pursuant to this section shall include a legal description of the military operations area as delineated in the military operations area map. END_STATUTE

Sec. 2. Section 32-2183.05, Arizona Revised Statutes, is amended to read:

START_STATUTE32-2183.05. Military training route disclosure; military electronics range disclosure; military operations area disclosure; residential property

A. Any public report that is issued after December 31, 2004 pursuant to section 32‑2183 or 32‑2195.03 and that is applicable to property located under a military training route, as delineated in the military training route map prepared by the state land department pursuant to section 37‑102, and any public report that is issued after December 31, 2008 and that is applicable to property located in a military electronics range as delineated in the military electronics range map prepared by the state land department pursuant to section 37‑102, AND ANY PUBLIC REPORT ISSUED AFTER DECEMBER 31, 2011 THAT IS APPLICABLE TO PROPERTY LOCATED under A MILITARY OPERATIONS AREA AS DELINEATED IN THE MILITARY OPERATIONS area MAP PREPARED BY THE STATE LAND DEPARTMENT PURSUANT TO SECTION 37-102 shall include the following statements:

1. The property is located under a military training route, military operations area or in a military electronics range.

2. The state land department and the state real estate department maintain military training route maps, military operations area maps and military electronics range maps available to the public.

3. The military training route map, military operations area map and military electronics range map are posted on the state real estate department's website.

B. The public report prescribed by subsection A of this section may contain a disclaimer that the subdivider has no control over any of the following:

1. The military training routes as delineated in the military training route map.� or

2. The military operations areas as delineated in the military operations area map.

3. The timing or frequency of flights and associated levels of noise. and has no control over

4. The military electronics range and its testing and training operations.

C. For any lot reservation or conditional sale that occurs before the issuance of a public report, the disclosure statements listed in subsection A of this section shall be included within the reservation document or conditional sales contract.

D. This section does not require the amendment or reissuance of any public report issued or any reservation document or conditional sales contract accepted as follows:

1. On or before December 31, 2004, that if the report, document or contract is applicable to property located under a military training route, as delineated in the military training route map prepared by the state land department pursuant to section 37-102.� or

2. On or before December 31, 2008, that if the report, document or contract is applicable to property located in a military electronics range, as delineated in the military electronics range map prepared by the state land department pursuant to section 37-102.� or the amendment or reissuance of any reservation document or conditional sales contract accepted on or before December 31, 2004 or on or before December 31, 2008.

3. On or before December 31, 2011, if the report, document or contract is applicable to property located under a military operations area, as delineated in the military operations area map prepared by the state land department pursuant to section 37-102.

E. Notwithstanding any other law, if the public report complies with subsection A of this section, a subdivider is not liable to any person or governmental entity for any act or failure to act in connection with the disclosure of any of the following:

1. A military training route as delineated in the military training route map.� or

2. A military electronics range as delineated in the military electronics range map.

3. A military operations area as delineated in the military operations area map.

F. This section shall not be construed to require a public report issued sixty or fewer days prior to the filing of the military electronics range map prepared pursuant to section 37-102 to meet the military electronics range notification requirements of this section.

G. A public report issued sixty-one or more days after the filing of the military electronics range map prepared pursuant to section 37‑102 shall meet all of the requirements of subsection A of this section. END_STATUTE

Sec. 3. Section 33-422, Arizona Revised Statutes, as amended by Laws, 2010, chapter 244, section 22, is amended to read:

START_STATUTE33-422. Land divisions; recording; disclosure affidavit

A. A seller of five or fewer parcels of land, other than subdivided land, in an unincorporated area of a county and any subsequent seller of such a parcel shall furnish a written affidavit of disclosure to the buyer, at least seven days before the transfer of the property, and the buyer shall acknowledge receipt of the affidavit.

B. The affidavit must be written in twelve point type.

C. No release or waiver of a seller's liability arising out of any omission or misrepresentation contained in an affidavit of disclosure is valid or binding on the buyer.

D. The buyer has the right to rescind the sales transaction for a period of five days after the affidavit of disclosure is furnished to the buyer.

E. The seller shall record the executed affidavit of disclosure at the same time that the deed is recorded.� The county recorder is not required to verify the accuracy of any statement in the affidavit of disclosure.� A subsequently recorded affidavit supersedes any previous affidavit.

F. The affidavit of disclosure shall meet the requirements of section 11‑480 and follow substantially the following form:

When recorded mail to:

__________________________

Affidavit of Disclosure

Pursuant to A.R.S. �33‑422

I, ______________________________________________ (seller(s)) being duly sworn, hereby make this affidavit of disclosure relating to the real property situated in the unincorporated area of:

_______________________, County, State of Arizona, located at:

______________________________________________________________

and legally described as:

(Legal description attached hereto as exhibit "A")

(property).

1. There�� is�� is not . . . . legal access to the property, as defined in A.R.S. �� 11-831 . . . . � unknown

Explain:� ____________________________________________________

______________________________________________________________

2. There�� is�� is not . . . . physical access to the property. � unknown

Explain:� ____________________________________________________

______________________________________________________________

3. There� � is�� is not . . . . a statement from a licensed surveyor or engineer available stating whether the property has physical access that is traversable by a two‑wheel drive passenger motor vehicle.

4. The legal and physical access to the property�� is�� is not . . . . the same....� unknown�� not applicable.

Explain:� ____________________________________________________

______________________________________________________________

If access to the parcel is not traversable by emergency vehicles, the county and emergency service providers may not be held liable for any damages resulting from the inability to traverse the access to provide needed services.

5. The road(s) is/are�� publicly maintained� � privately maintained� � not maintained�� not applicable.� If applicable, there� � is� � is not . . . . a recorded road maintenance agreement.

If the roads are not publicly maintained, it is the responsibility of the property owner(s) to maintain the roads and roads that are not improved to county standards and accepted for maintenance are not the county's responsibility.

6. A portion or all of the property� � is� � is not located in a FEMA designated regulatory floodplain.� If the property is in a floodplain, it may be subject to floodplain regulation.

7. The property� � is� � is not subject to� � fissures or� � expansive soils.� � unknown

Explain:� ____________________________________________________

______________________________________________________________

8. The following services are currently provided to the property: � water�� sewer�� electric�� natural gas�� single party telephone�� cable television services.

9. The property� � is� � is not . . . . served by a water supply that requires the transportation of water to the property.

10. The property is served by� � a private water company� � a municipal water provider� � a private well� � a shared well � no well.� If served by a shared well, the shared well� � is � is not . . . . a public water system, as defined by the safe drinking water act (42 United States Code � 300f).

Notice to buyer:� If the property is served by a well, a private water company or a municipal water provider the Arizona department of water resources may not have made a water supply determination.� For more information about water supply, contact the water provider.

11. The property� � does have� � does not have . . . . an on‑site wastewater treatment facility (i.e., standard septic or alternative system to treat and dispose of wastewater). � unknown.� If applicable:� a) The property� �� will� �� will not . . . . require installation of an on‑site wastewater treatment facility; b) The on‑site wastewater treatment facility� � has � has not been inspected.

12. The property� � has been� � has not been . . . . subject to a percolation test.� � unknown.

13. The property� � does� � does not . . . . meet the minimum applicable county zoning requirements of the applicable zoning designation.

14. The sale of the property� �� does� �� does not . . . meet the requirements of A.R.S. � 11-831 regarding land divisions.� If those requirements are not met, the property owner may not be able to obtain a building permit. The seller or property owner shall disclose each of the deficiencies to the buyer.

Explain:� ____________________________________________________

______________________________________________________________

15. The property� � is� � is not located in the clear zone of a military airport or ancillary military facility, as defined in A.R.S. � 28-8461.� (Maps are available at the state real estate department's website.)

16. The property� �� is� �� is not located in the high noise or accident potential zone of a military airport or ancillary military facility, as defined in A.R.S. � 28‑8461.� (Maps are available at the state real estate department's website.)

17. Notice:� If the property is located within the territory in the vicinity of a military airport or ancillary military facility, the property is required to comply with sound attenuation standards as prescribed by A.R.S. � 28-8482.� (Maps are available at the state real estate department's website.)

18. The property� � is� � is not located under military restricted airspace.� � unknown.� (Maps are available at the state real estate department's website.)

19. The property� � is� �� is not located in a military electronics range as defined in A.R.S. sections 9‑500.28 and 11‑818. � unknown. (Maps are available at the state real estate department's website.)

20. The property � is � is not located under a military operations area.� � unknown. (maps are available at the state real estate department's website).

20. 21. Use of the property� � is� � is not limited in any way relating to an encumbrance of title due to a lis pendens, a court order or a state real estate department order or a pending legal action. If the use of the property is limited due to an encumbrance of title, the seller or property owner shall disclose the limitations to the buyer.

Explain:� ____________________________________________________

______________________________________________________________

This affidavit of disclosure supersedes any previously recorded affidavit of disclosure.

I certify under penalty of perjury that the information contained in this affidavit is true, complete and correct according to my best belief and knowledge.

Dated this (date) __ day of (year) by:

Seller's name (print): ______________ Signature: _____________

State of Arizona�� )

�� )�� ss.

County of ___________)

Subscribed and sworn before me this _ (date) __ day of (year) , by ____________________________________________.

__________________________

Notary public

My commission expires:

(date)

Buyer(s) hereby acknowledges receipt of a copy of this affidavit of disclosure this (date) day of (year)

Buyer's name (print): _______________ Signature: _____________

G. For the purposes of this section, seller and subsequent seller do not include a trustee of a deed of trust who is selling property by a trustee's sale pursuant to title 33, chapter 6.1 or any officer who is selling property by execution sale pursuant to title 12, chapter 9 and title 33, chapter 6.� If the seller is a trustee of a subdivision trust as defined in section 6‑801, the disclosure affidavit required by this section shall be provided by the beneficiary of the subdivision trust. END_STATUTE

Sec. 4. Section 33-423, Arizona Revised Statutes, is amended to read:

START_STATUTE33-423. Disclosure; reports; indemnity; applicability; violation; classification

A. A disclosure report pursuant to this section may be provided to the buyer or seller of real property by a third party as authorized by the buyer or seller and shall be based on officially adopted and electronically posted or otherwise readily available governmental maps or information that discloses whether the real property is subject to one or more of the following:

1. Special flood hazard areas designated by the federal emergency management agency pursuant to 42 United States Code chapter 50.

2. Military airports and ancillary military facilities as defined in section 28‑8461 or as disclosed pursuant to section 28‑8484 or 32‑2113.

3. Military training routes as shown in the map produced pursuant to section 37‑102, military operations areas as shown in the map produced pursuant to section 37‑102 and military restricted airspace as shown in the map produced pursuant to section 37‑102.

4. Public and private airports that are approved by the federal aviation administration.

5. Expansive soils as shown on maps issued by the natural resource conservation service or on other officially adopted and readily available governmental maps.

6. Fissures as shown on earth fissure maps issued by the Arizona geological survey or pursuant to section 27‑152.01, paragraph 3.

7. Special tax assessment areas or taxing authority and amount of special assessments in addition to ad valorem taxes as shown in the current tax records of the applicable county assessor.

8. Radon gas potential zones as shown on current maps issued by the United States environmental protection agency.

9. Environmental hazard superfund sites including the sites listed in the Arizona superfund program list and the water quality assurance revolving fund registry, or listed by the United States environmental protection agency including the national priorities list, the comprehensive environmental response compensation and liability information system database or on maps issued by the department of environmental quality or equivalent databases of those sites.

10. Any other condition that affects the real property that the buyer or seller authorizes and the third party provider agrees to provide in a third party provider disclosure report.

B. For any third party provider of information as prescribed by this section, the following apply:

1. A seller or buyer shall not be required to provide the written disclosure provided by this section to an insurance company, a lender or a governmental agency.

2. The third party provider shall carry errors and omissions insurance coverage with limits of at least one million dollars per occurrence and in an aggregate of at least ten million dollars.� A person who violates this paragraph is guilty of a class 1 misdemeanor.

C. If an action is brought as a result of an error, inaccuracy or omission in the disclosure made only by a third party provider who provides information pursuant to subsection A of this section, the third party provider shall provide a defense against the action, shall indemnify the buyer or seller who authorized the disclosure report and persons licensed pursuant to title 32, chapter 20 who represent the buyer or seller for any judgment rendered and shall reimburse reasonable attorney fees and costs incurred in defending the action, unless the buyer, seller or agent for the buyer or seller had knowledge of the error, inaccuracy or omission or the buyer, seller or agent for the buyer or seller modified the disclosure and the modification resulted in the error, inaccuracy or omission.� Nothing in this section shall be construed to prohibit a third party provider of information from agreeing by contract that the third party provider shall indemnify a person to a greater extent than is required by this section.

D. If information that is disclosed pursuant to this section is subsequently rendered inaccurate as a result of any governmental action, map revision, changed information or other act or occurrence after the delivery of the disclosure, no person is liable for the information that was disclosed unless the person had knowledge of the error, inaccuracy or omission.

E. This section shall not be construed to create a cause of action for the use of maps or other information pursuant to this section.� This section does not apply to the sale of real property by any person pursuant to section 32‑2183 or section 32‑2195.03, or any affiliate of that person.

F. This section does not obligate any person to provide or purchase a disclosure report that is the subject of this section.

G. The listing of a condition in subsection A of this section or in a third party provider disclosure report does not by itself make that condition material or immaterial to a particular real estate transaction. The materiality of any disclosure is governed as otherwise provided by law. END_STATUTE

Sec. 5. Section 37-102, Arizona Revised Statutes, is amended to read:

START_STATUTE37-102. State land department; powers and duties

A. The state land department shall administer all laws relating to lands owned by, belonging to and under the control of the state.

B. The department shall have charge and control of all lands owned by the state, and timber, stone, gravel and other products of such lands, except lands under the specific use and control of state institutions and the products of such lands.

C. The department, in the name of the state, may commence, prosecute and defend all actions and proceedings to protect the interest of the state in lands within the state or the proceeds thereof. Actions shall be commenced and prosecuted at the request of the department by the attorney general, a county attorney or a special counsel under the direction of the attorney general.

D. The department shall be the official representative of the state in any communication between the state and the United States government in all matters respecting state lands or any interest of the state in or to the public lands within the state.

E. The summons in any action against the state respecting any lands of the state or the products of such lands and all notices concerning such lands or products shall be served on the commissioner.� Summonses, warrants or legal notices served on behalf of the department may be served by the commissioner or the commissioner's deputy, or by the sheriff or a constable of any county of the state.

F. The department shall maintain as a public record in each of its offices a public docket and index of all matters before the department that may be subject to appeal to the board of appeals or to the courts and all sale, exchange and lease transactions subject to bidding by the public.� The department shall list a matter on the public docket immediately after an application or other request for department action is received by the department.� The department shall include in the public docket every formal action and decision affecting each matter in question. The department shall establish by rule a means by which any person may obtain a copy of the public docket at the current copying cost.

G. The department shall reappraise or update its original appraisal of property to be leased, exchanged or sold if the board of appeals' approval of the lease or sale occurred more than one hundred eighty days before the auction.

H. To the extent possible, the state land department shall:

1. Prepare maps of the ancillary military facilities described in section 28‑8461, paragraph 7, subdivisions (b) and (c).

2. Make a map of the ancillary military facility described in section 28‑8461, paragraph 7, subdivision (a) available to the public in printed or electronic format and provide the map in printed or electronic format to the state real estate department.

3. On or before December 25, 2008 and on receipt of proper information from the military installation commander with responsibility for the military electronics range, prepare a map of the military electronics range as defined in section 9-500.28 and make that map available to the public in printed or electronic format and provide the map in printed or electronic format to the state real estate department.� Within ninety days of receipt of notice of any change in the boundaries of the military electronics range from the military installation commander, the state land department shall revise its map and provide the map to the public and to the state real estate department.

I. The state land department shall provide each map and the legal description of the boundaries of each ancillary military facility described in section 28‑8461, paragraph 7 in electronic format to the state real estate department.� Each map prepared by the state land department pursuant to this section shall:

1. Describe the ancillary military facility, the territory in the vicinity of the ancillary military facility and the high noise and accident potential zone, accident potential zone one and accident potential zone two associated with the ancillary military facility.

2. Be submitted to the county in which the ancillary military facility is located.

3. Be made available to the public.

J. The state land department shall prepare a military training route map.� The map shall contain military training route numbers in this state that are used by various United States armed forces.� The map shall be dated.

K. When preparing the military training route map, the state land department shall use information contained in the most current department of defense publication that is entitled "area planning military training routes for North and South America".

L. The military training route map shall be made available to the public.

M. Within ninety days after the department is notified of a change of a military training route in this state, the department shall prepare a revised military training route map.� The map shall be dated and contain a statement that the map supersedes all previously dated maps.� The state land department shall send the revised map to the state real estate department electronically and shall also send an accompanying letter specifying the military training route changes.� The state land department shall send the revised map and an accompanying letter specifying the military training route changes to the municipalities affected by the changes and to all counties.

N. The department shall submit the military training route map prepared pursuant to this section to the counties in either an electronic or a printed format.� The format shall be determined by the receiving county.

O. The state land department shall provide the legal description of the boundaries of the military training routes as delineated in the military training route map to the state real estate department in electronic format.

P. The state land department shall prepare a military restricted airspace map.� The map shall contain military restricted airspace in this state that is used by various United States armed forces.� The map shall be dated.

Q. When preparing the military restricted airspace map, the state land department shall use information contained in the most current department of transportation publication that is entitled "aeronautical chart".�

R. The military restricted airspace map shall be made available in printed or electronic format to the public at the state land department and at the state real estate department.

S. Within ninety days after the department is notified of a change of military restricted airspace in this state, the department shall prepare a revised military restricted airspace map.� The map shall be dated and contain a statement that the map supersedes all previously dated maps.� The state land department shall send the revised map to the state real estate department electronically and shall also send an accompanying letter specifying the military restricted airspace changes. The state land department shall send the revised map and an accompanying letter specifying the military restricted airspace changes to the municipalities affected by the changes and to all counties.

T. The department shall submit the military restricted airspace map prepared pursuant to this section to the counties in either an electronic or a printed format.� The format shall be determined by the receiving county.

U. The state land department shall provide the legal description of the boundaries of the military restricted airspace as delineated in the military restricted airspace map to the state real estate department in electronic format.

V. The state land department shall request from the United States department of defense mapping information for military operations areas.� The state land department shall use the information to prepare a military operations area map. The military operations area map shall be made available in printed or electronic format to the public at the state land department and at the state real estate department.� Within ninety days after the state land department is notified of a change of military operations areas in this state, the state land department shall prepare a revised military operations map.� The state land department may request information from the United States department of defense to assist the state land department with map revisions. The map shall be dated and contain a statement that the map supersedes all previously dated maps.� The state land department shall send the revised map to the state real estate department electronically and shall also send an accompanying letter specifying the military operations area changes.� The state land department shall send the revised map and an accompanying letter specifying the military operations area changes to the municipalities affected by the changes and to all counties.� The state land department shall provide the legal description of the boundaries of the military operations area as delineated in the military restricted airspace map to the state real estate department in electronic format.� For the purposes of this subsection, "military operations area" means an area of airspace established outside class a airspace to separate or segregate certain nonhazardous military activities from instrument flight rules traffic and to identify visual flight rules traffic where these activities are conducted.

V. W. The department may accept title to and manage real estate, property rights and related infrastructure acquired pursuant to section 26‑262, subsection K for preserving or enhancing military installations in this state. END_STATUTE

Sec. 6. Effective date

This act is effective from and after September 30, 2011.