Disclosures affect all properties including commercial and industrial.
Specifics of the scope of the disclosures left unresolved.
On December 21, 2023, the Department of Community Affairs (DCA) published forms applying to:
- Sales of any property in New Jersey after March 20, 2024.
- New leases and lease renewals for any leased property, including commercial and industrial leaseholds.
The forms were published by DCA pursuant to P.L. 2023, c.93, which imposed sweeping new notice requirements affecting properties that are or have been subject to flooding.
All owners of land in New Jersey, including commercial and industrial property owners, who lease their sites or are considering a transfer of improved or unimproved land must use the forms.
A copy of the language for leases can be found here.
A copy of the revised Property Condition Disclosure Form, which includes the new “Flood Risk” section at the end, can be found here. Historically, the Property Condition Disclosure Form was only used in residential settings, but now must be used for the sale of all land.
The language of both forms includes disclosures as to whether the property “ever experienced” impacts from flooding. The scope of the inquiry needed is left unresolved. No guidance or direction was provided by DCA regarding how far back in time the language applies or the level of investigation or inquiry the party making the disclosure must undertake.
A mapping tool was also developed which can be found here. It is unclear whether the tool is up to date and reflects recent site-specific flood mapping revisions.
Additional detail was included in our earlier postings Landlords and Sellers of Property Beware: New Law Requires Disclosure of Flood Risks for Commercial, Industrial and Multi-Family Sites and DEP Adopts New Inland Flood and Stormwater Rules That Will Require Many Projects to Be Redesigned or Abandoned.
The newly released notices did little to address unresolved issues we raised in our prior posts and unfortunately raised additional questions. We will provide additional analysis and updates in the future.