Selling a Used Car in California – Smog Tests

If you’re shopping for a used car in California, something you might be wondering about — and if you’re not wondering about it, you should for the reasons I’ll describe — is whether or not a smog check needs to be done. If you’re looking on a website like Craigslist where anyone can post a vehicle for sale, for example, you might see a lot of ads where the seller says:

  • The smog test is the buyer’s responsibility,
  • The vehicle passed smog “6 months ago”, or
  • The vehicle is “smog ready”

I’ve always assumed that “smog ready” means the vehicle can pass a smog test which, if you think about it, could have two possible meanings: (1) the vehicle will pass smog and the seller agrees to do that as a condition of the sale, or (2) the vehicle will allegedly pass smog, but the buyer has to buy the car first and bear the risk of it not actually passing smog.

So the question for this blog post is this: what is the rule about smog tests when you’re buying a new car in California?

Two things before we dive in to the answer:

  • First, if you’re not in California and don’t know what a smog test is, it’s an emissions test that your car has to pass in order to get registered in California. Smog tests are, thus, an air pollution control measure. If your car can’t pass a smog test and you can’t fix it, then you cannot register it in California. Depending on your situation, you may be able to sell your car to your local air quality management district. The rules for what vehicles have to be smogged are very involved so there’s no way for me to go over all of them in this post. To whet your appetite, though, two very common rules are: (1) motorcycles are exempt from smog testing, and (b) vehicles from before 1975 are also exempt from smog testing. If you buy a new vehicle in California, it is generally exempt from a smog test for the first six years of ownership, although it may be four years in some cases. Again, there are many different possible permutations for when a smog test is and is not required so you’ll need to check what particular rules apply to your situation.
  • Second, buying and selling vehicles falls in to many different categories that, again, I cannot possibly go over in this post. Some examples are: (1) vehicles that are sold for scrap or dismantling, (2) car dealers selling to one another, (3) vehicles being sold between family members, (4) vehicles that were leased, and (5) vehicles meant for off-road use. Special rules may apply in those situations as to whether a smog test is required when those vehicles are sold as used.

In my opinion — which, as always, is not comprehensive or necessarily representative of your life — the most common “used car purchasing” situation is where a private individual buys a used car (e.g. off their local Craigslist) from another private individual for the buyer’s own personal use. This post will answer the question: is the seller in such a situation required to do a smog check prior to finalizing the sale? Phrased alternatively, is the buyer in such a situation entitled to a passing smog test as part of the sale?

The Answer:
To both questions: Yes, assuming that a passing smog test was not performed in the 90 calendar days before the sale.

The Explanation:
I read statutes all the time and even I admit that California could make the law here less confusing. To understand where the general rule of “seller of a used car must provide a passing smog test result as part of the sale” comes from, a good place to start would be California Vehicle Code section 24007(b)(1) and (b)(2) which state:

(b)(1) Except as provided in Section 24007.5, no person shall sell, or offer or deliver for sale, to the ultimate purchaser, or to any subsequent purchaser a new or used motor vehicle, as those terms are defined in Chapter 2 (commencing with Section 39010) of Part 1 of Division 26 of the Health and Safety Code, subject to Part 5 (commencing with Section 43000) of that Division 26 which is not in compliance with that part and the rules and regulations of the State Air Resources Board, unless the vehicle is sold to a dealer or sold for the purpose of being legally wrecked or dismantled.

(2) Prior to or at the time of delivery for sale, the seller shall provide the purchaser a valid certificate of compliance or certificate of noncompliance, as appropriate, issued in accordance with Section 44015 of the Health and Safety Code.

The part I’ve bolded and underlined above about certificates of compliance and noncompliance basically refer to smog tests. If you want to delve in to that, you can look up California Health and Safety Code section 44015. If you do, the rule that smog tests on used cars are only good for 90 days is in section 44015(e). You can also take a look at California Vehicle Code section 4000.1(d)(1) to see that a passing smog certificate is only good for 90 days.

If you’re looking for the law that says you have to have a passing smog test in order to register your car in California, that’s also in Vehicle Code section 4000.1, although this time it’s subsection (a).

What Does All of This Mean?
The confusing aspect I described earlier is that you have to read all three of these statutes together. If you do, you get:

  • Vehicle Code 24007(b) for the requirement that, in most cases, the seller has to provide a passing smog test with the sale,
  • Health and Safety Code section 44015 for the requirement of how the smog test has to be done and that it has to be from within the 90 days preceding the sale, and
  • Vehicle Code section 4000.1(a) for the requirement that a passing smog test within the last 90 days is required in order to register the vehicle in California.

As you can probably guess, the idea behind requiring the seller to produce a valid smog test is so that the buyer isn’t stuck in the situation of having paid a bunch of money for a car that they can’t register.

If you’re in a situation where you bought a car in California and can’t register it, there are a few things you could do:

  • Obviously, if you bought the car and knowingly waived the right to receive a smog test from the seller, then I would say it’s your own fault that you can’t register the car now. You took the gamble and you lost.
  • If you had no idea it was your right to get the seller to provide a smog test, you have at least two paths I can think of: (1) sue the seller and demand he or she refund your money and take the car back, or (2) deem it a lesson learned and just let it go. (2) is probably not real palatable for most people. (1), however, may not be realistic for most people either.

The best way, I think, to avoid this dilemma is to nip it in the proverbial bud before it ever arises: if you’re buying a used car from an individual, check to see if the seller is required to provide you a valid smog test and, if so, then insist on getting it. If you buy the car without the smog test, then you run the risk of not being able to register the car in California.

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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2 Comments

  1. Really no mattеr if someone doeѕn’t know afteгward its up
    to other viewers thаt they will help, so here it happens.

    Reply
  2. If it’s the Law or is posted on the DMV website that the seller is responsible to make repairs necessary for the smog test even after the sale (which is what the DMV states http://www.dmv.org/ca-california/buy-sell/state-regulations.php), then why is small claims court not listed as an option to get repaid for the repairs needed for Title?

    Reply

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