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Mandatory Radon Testing?

October 23, 2015

It's odorless, colorless, tasteless, resides in your basement and kills 21,000 homeowners a year. 

 

Yes, we are talking about Radon.  Radon is a radioactive gas that occurs naturally in decaying rocks, water and soil and enters your home through cracks or other openings in your foundation. While Radon gas is found naturally both indoors and outdoors, its characteristics cause it to be found in higher concentration in the home’s lowest level.  The EPA has determined that a high Radon concentration, meaning 4 or more picocurries per liter of air, increases the risk of lung cancer among homeowners who have never smoked. According to the American Association of Radon Scientists and Professionals, the EPA’s 21,000 annual death figure comes from a 20 year-old study of underground miners exposed to Radon.

Radon has been a known carcinogen for decades.  In Maryland, home sellers who have actual knowledge that their homes have elevated Radon levels, are required to disclose that fact to all prospective buyers. However, at present, a home seller had no duty to discover the Radon levels in their homes.  That could all change if the Montgomery County, MD Council approves a controversial mandatory Radon testing bill. That bill 31-15, sponsored by councilmembers Craig Rice and Sidney Katz, would impose a mandatory duty on all home sellers to test their home for Radon and deliver those test results to prospective home buyer BEFORE entering any sales contract.  If enacted by Montgomery County, it would become the only jurisdiction in the country to mandate Radon testing.

 

Specifically, the bill creates an affirmative duty on every home seller to purchase a state mandated testing kit, use a state certified testing company, and deliver those results to all prospective buyers before signing any purchase contract.  In addition, if the results reveal a high Radon level, the home seller has the affirmative duty to obtain a written estimate from a state licensed remediation company estimating the costs to reduce the Radon level to the 2 picocurrie level.  The tests cannot be conducted more than 1 year prior to the sales contract.  According to the National Radon Proficiency Program there are only approximately 23 remediation providers in Maryland.

 

While it is beyond debate that Radon is a serious concern for the public, writ large, the solution proposed by the Montgomery County Council members is but another in a long line of “nanny state” regulations that do very little to solve the problem, shift the economic burden to the property owner by significantly increasing the cost of selling their homes, but has precious little practical effect.  The law does not mandate remediation. The law does not identify the penalty for failing to comply. The law does not cover common ownership communities such as condominiums, apartments, or cooperatives. The law does not address the 100s of thousands of occupied homes that may have dangerously high levels Radon, but are not for sale, and thus the homeowners/occupants living there now are at continued lung cancer risk.  The law similarly mandates that the tests must be less than 1 year old.  Begging the question, that if there is Radon today, but a year from now the Radon levels change, is this much ado about nothing? There were no speakers on this bill at a July 14, 2015 public hearing. 

 

The Greater Capital Area Association of Realtors has submitted written testimony opposing this bill. Their opposition explains that their members already go to great lengths to educate the public about Radon, and their official Radon Testing Notice and/or Addendum refers their clients to visit the EPAs website at www.gov/radon to learn about the Radon dangers and the steps that can be taken to remediate this danger. The Realtors opposition also cited the increased costs, added complexity and confusion likely to ensue if this bill becomes law. While the test kits themselves cost approximately forty dollars, locating a state certified testing laboratory, arranging for ideal testing conditions (rain, snow, excessive drafts can all impact the test results) and if necessary, locating and obtaining a written estimate for remediation and completing that remediation, can increase transaction costs by several thousand dollars. Realtors are also concerned that with only 23 qualified, licensed remediation companies statewide, the bill, if enacted, will likely delay closings while buyers, sellers and lenders wait for remediation to be completed. Finally, the Realtors cite the inevitable costly lawsuits that will arise from conflicting test results, allegations of easily manipulated testing conditions and/or other failures to strictly comply with the vague law. According to Meredith R. Weisel, GCAAR Government Relations Consultant “a more prudent approach would be to require an educational disclosure that would help buyers make a more educated decision and then leave the negotiation up to the buyer and seller in the private real estate transaction whether a Radon test and remediation should be done.”

 

Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and associate real estate broker. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at 301-300-6252, jacobs@jacobs-associates.com or ask@thehouselawyer.com.

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