By Harvey S. Jacobs October 30, 2015
In Maryland, home sellers who know that their homes have elevated radon levels are required to disclose that information to prospective buyers. However, at present, home sellers have no duty to measure the radon levels in their homes.
That could change in Montgomery County if the County Council approves a controversial bill that would mandate radon testing.
Bill 31-15, sponsored by Council members Craig Rice (D-Upcounty) and Sidney Katz (D-Gaithersburg-Rockville), would require home sellers to test their homes for radon and provide the results to prospective home buyers before entering a sales contract. If the bill is enacted, Montgomery County would become the only jurisdiction in the country to mandate radon testing.
Radon has been a known carcinogen for decades.
It is odorless, colorless, tasteless, resides in your basement and kills 21,000 homeowners a year.
Radon is a radioactive gas that occurs naturally in decaying rocks, water and soil, and it enters your home through cracks or other openings in the foundation. Although radon is found naturally indoors and outdoors, its characteristics cause it to be found in higher concentrations in a home’s lowest level.
The Environmental Protection Agency has determined that a high concentration of radon, meaning four or more picocuries per liter of air (pCi/L), 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 figure of 21,000 annual deaths from radon comes from a 20-year-old study of miners exposed to radon.
The bill would require every home seller to purchase a state-mandated testing kit, use a state-certified testing company and provide test results to prospective buyers before signing a sales contract. In addition, if tests reveal a high radon level, the seller would be required to get a written estimate from a state-licensed remediation company detailing the costs to reduce the radon level to 2 pCi/L. The tests cannot be conducted more than one year before a sales contract is signed. According to the National Radon Proficiency Program, there are 23 remediation providers in Maryland.
It is beyond debate that radon is a serious concern for the public. But the solution proposed by the Montgomery County Council members will increase sellers’ costs while having precious little practical effect. The bill neither mandates remediation nor identifies the penalty for failing to comply. The bill does not cover common-ownership communities such as condominiums, apartments or cooperatives. And it does not address the hundreds of thousands of occupied homes that may have dangerously high levels of radon but are not for sale and thus the homeowners/occupants are at continued lung cancer risk.
The Greater Capital Area Association of Realtors has submitted written testimony opposing the bill. The association asserts that its members already go to great lengths to educate the public about radon, and its official Radon Testing Notice and/or Addendum refers clients to the EPA’s Web site, atwww.epa.gov/radon , for information.
The Realtors also cited the increased costs, added complexity and confusion likely to ensue if this bill becomes law. The test kits cost approximately $40, but locating a state-certified testing laboratory, arranging for ideal testing conditions (rain, snow and excessive drafts can all affect 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 also are concerned that the bill, if enacted, would be likely to delay closings while buyers, sellers and lenders wait for remediation to be completed because there are only 23 qualified licensed remediation companies statewide.
Finally, the Realtors cite the inevitable costly lawsuits that would arise from conflicting test results, allegations of easily manipulated testing conditions and/or other failures to strictly comply with the vague law. 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, said Meredith R. Weisel, GCAAR government relations consultant.
The bill is to go before the council for a vote Tuesday, Nov. 3.
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 Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, jacobs@jacobs-associates.com or ask@thehouselawyer.com.