Assembly Bill 455, effective January 1, 2026, is the first-in-the-nation law requiring disclosure of thirdhand smoke contamination in a residential real estate sale. It places sole responsibility on the seller of a single-family residential property who has actual knowledge of residue from smoking tobacco or nicotine products, or of a history of occupants smoking tobacco or nicotine products, including electronic cigarettes and vape devices, to disclose that knowledge to the buyer in writing. The disclosure obligation attaches to the Transfer Disclosure Statement, the mandatory form on which sellers detail known material facts, defects, and history of a residential property. Certain transfers, including those made through probate, foreclosure, bankruptcy, REO sales, and specific trusts, are exempt.

The disclosure obligation is tied to actual knowledge, not an affirmative duty to investigate. In practice, several categories of evidence tend to establish actual knowledge: prior tenant complaints about smoke or odor, maintenance records reflecting smoke damage remediation, property management records documenting smoking activity, HOA or neighbor communications referencing smoke, the seller's own prior residency or ownership involvement, and lease provisions prohibiting smoking, particularly when those provisions were adopted in response to a specific prior incident.

Concrete example: A Los Gatos homeowner rented the property for several years to a tenant who smoked indoors, generating repeated complaints from neighbors and a remediation invoice in the seller's own records. When the seller lists the property, that history constitutes actual knowledge under AB 455, and omitting it from the Transfer Disclosure Statement exposes the seller to liability even if the smoke odor has since been masked by renovation.

Assembly Bill 723, also effective January 1, 2026, requires that real estate advertisements using a digitally altered image include a "reasonably conspicuous" disclosure statement placed on or near the image, along with a link, URL, or QR code leading to the unaltered original. The obligation runs to the listing agent and the seller. The law distinguishes between standard, non-material edits (lighting adjustments, color correction, cropping, and exposure changes) which require no disclosure, and material alterations that change how the property actually appears, such as removing utility lines or structures, digitally improving views, altering the condition of landscaping, or staging objects that are not physically present.

Failing to comply with either statute can expose a seller or agent to claims for fraud or intentional misrepresentation, negligent misrepresentation, breach of contract, and claims under the California Consumer Legal Remedies Act. Because a buyer often does not discover an undisclosed smoking history or a materially altered listing photo until well after closing, sometimes only when preparing to resell or renovate, these claims can surface months or years later, and are generally subject to a three-year statute of limitations running from the date of discovery rather than the date of sale.

Buyers should preserve original listing photos and marketing materials, document any missing disclosures, and note the timeline of when concerns were discovered relative to closing. Sellers and agents should establish a photo review protocol that distinguishes routine corrective edits from material alterations, maintain original pre-edit image files, and ensure the Transfer Disclosure Statement reflects everything the seller actually knows about the property's smoking history. McLellan Law Group advises buyers, sellers, and agents throughout Saratoga, San Jose, and Silicon Valley on real estate disclosure compliance and disputes.