Questions and issues raised on the Legal Hotline are answered here by our resident legal expert, Stephen Ryan, Esq., MAR General Counsel
Two of the more frequent concerns to arise during the buying and selling process undoubtedly are Title 5 and radon. Below are a few of the more commonly asked questions on these subjects.
Q. My seller has a home with a septic system that was inspected 18 months ago. Do they have to have it inspected again?
A. If an inspection was conducted within the applicable timeframe, it may fulfill the inspection requirement for more than one transfer of title, and need not be repeated. For most properties, inspection must have occurred within two years prior to the transfer (three years when a system has been pumped on an annual basis and pumping records are available).
Q. Who must obtain a Title 5 inspection and the results when a property is being sold?
A. Under Title 5, the property owner or facility operator is generally responsible for obtaining an inspection of the system. Prior to the time of
transfer of title, however, the parties may contractually allocate
responsibility for the inspection provided that such inspection occurs within the specified timeframes. An inspection must be conducted by an approved
system inspector. If an inspection is required, s/he must record the inspection results on a state Department of Environmental Protection (DEP)-approved inspection form and submit the form, within 30 days of the
inspection, to the approving authority. Boards of Health are the approving authorities for most systems. The DEP is the approving authority for state and federal facilities. Also, for large and shared systems, the System Inspector and the owner must submit the inspection form to the DEP.
If an inspection is not required, an owner may perform a voluntary assessment of the condition and operability of the system. The results are not required to be submitted to the approving authority.
Q. Is the buyer entitled to a copy of the inspection report when a home is sold?
A. A copy of the inspection report must be submitted to the buyer or other person acquiring title to the facility served by the system. The inspection is
intended to provide sufficient information to determine whether or not the system is adequate to protect public health and the environment. However, it is not designed to demonstrate that the system adequately will serve the use of the new owner.
Q. What are a seller’s obligations with regard to radon testing?
A. Though it is a common provision in standard real estate agreements, no statute or regulation requires the seller of a residential property to afford the
buyer an opportunity to conduct a radon test. In addition, if a test is conducted and the buyer is concerned about the level of radon detected, the seller is not obligated to abate the problem unless he/she stipulates a
willingness to do so.
Buyers wishing to have a contingency that allows them to withdraw from a transaction based on the results of a radon test should be sure the agreement to purchase signed with the seller includes such a provision. The
U.S. Environmental Protection Agency (EPA) recommends a radon level above four picocuries per liter should be abated. Radon testing should be
performed in accordance with manufactures specifications and EPA guidelines to reduce the risk of inaccurate readings.