Legal


7/31/2015

Notes from the MAR Legal Hotline

 

Michael McDonagh, MAR General Counsel

Ashley Stolba, MAR Associate Counsel  

Justin Davidson, MAR Legislative & Regulatory Counsel

 

August 2015

 

Q.        My seller has a home with a septic system that was inspected eighteen months ago and they would like to resell the property. Do they have to have it inspected again?

 

A.         Most likely, no. If an inspection was conducted within the applicable time frame, it may fulfill the inspection requirement for more than one transfer of title. For most properties, inspection must have occurred within two years prior to the transfer. Alternatively, if the system has been pumped on an annual basis and the records are available, then typically the inspection must have occurred within the past three years.

 

Q.        Who must obtain a Title 5 inspection when a property is being sold and who receives the results?

 

A.         Pursuant to Title 5, the property owner or facility operator is generally responsible for obtaining an inspection of the system by an approved system inspector. 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 timeframe. If an inspection is required, the inspection results must be recorded on a state Department of Environmental Protection (DEP)-approved inspection form and submitted within 30 days of the inspection to the approving authority, which is typically the local Board of Health.

 

            If an inspection is not required, a system owner may perform a voluntary assessment of the condition and operability of the system, in which case the results of the inspection are not required to be submitted to the approving authority.

 

            For more information on Title 5, visit: http://www.mass.gov/eea/agencies/massdep/water/wastewater/septic-systems-title-5.html#6

 

Q.        Is the seller required to allow buyers to test for radon in Massachusetts?

 

A.         No. Unlike lead paint, the seller is not required to allow the buyer to conduct a radon test. Unless the parties have otherwise agreed, 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.

            Buyers wishing to add a radon contingency should be sure to include that contingency in the agreement to purchase, and be agreed upon by the seller.

 

Q.        If a buyer backs out of a transaction because of elevated radon levels, is the listing agent required to disclose this to future prospective buyers?

 

A.         Yes. Attorney General regulations explaining Chapter 93A provide that it is a violation when an agent, “fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.”  It requires that a real estate agent volunteer these facts, even if not asked, preferably in writing. Elevated radon levels in a home would be considered a fact under Chapter 93A, and therefore must be disclosed if known.

 

For more information on radon, please visit:

http://www.mass.gov/eohhs/gov/departments/dph/programs/environmental-health/exposure-topics/radiation/radon/public-health-fact-sheet-on-radon.html