Radon Law in Montgomery County has Changed20
On October 1st, 2016 a new radon law in Montgomery County went into effect and it is important that homeowners are aware of the implications of this law. As of that date a single family home or townhouse (with some exceptions) that is under contract cannot go to settlement until there is a radon test done on the home. It has always been possible for purchaser to do the radon test by including a radon test addendum in their offer. However, now if the purchaser does not have a test done then it is the seller’s responsibility to provide the test before closing.
Maryland is considered to be a “high” radon state and Montgomery County is listed as a zone 1 threat on the state’s radon map. Zone 1 includes the counties that have the highest risk of radon. Radon is an odorless gas found everywhere in our atmosphere. In an outdoor environment the gas disperses quickly and is not consider to be a threat to humans. However, in the closed confines of a typical home there can be higher levels of radon that pose a serious health threat to the occupants. It is estimated the the second most common cause of lung cancer in the US is due to the presence of radon in residential dwellings. Where high levels of radon is present in the soil, the gas can seep into homes through cracks and holes in the foundation floor and walls.
In the eyes of many the new radon law is poorly written and confusing in its present form. There is hope that it will be modified for clarity in the coming year. However the law is now a fact and we must deal with what we have when conducting a real estate transaction. It is not uncommon for a home purchase contract to have a radon test addendum attached. That addendum follows the lines of the standard home inspection addendum where is spells out in clear language what steps can be taken if radon is found to be in a home at levels higher than the Environmental Protection Agency’s standard. If this addendum is used then the seller need not worry about testing (it is done at the buyer’s expense) and the buyer is protected. However, it the buyer does not submit this addendum with the offer, this is when the problems can occur. The seller then has to provide a test that has been done within the past year. The problem is that without a radon addendum in the contract the seller is under no obligation to mitigate any radon issue and the buyer has no recourse and can not void the contract if the seller refuses. In fact if the seller has a negative radon test they can simply wait until right before settlement to present it to the buyer.
The other issue with the new law is that without an addendum in the contract the seller has a lot of leeway in how the testing can be done. There is no requirement in the new radon law that a certified testing company be used. The seller can do the testing as long as they use one of the many certified methods. This can potentially lead to some quality control issues if not outright fraud. It also places real estate agents in a more exposed position.
It is my policy that any buyer client of mine should now always use a radon inspection contingency in any offer in Montgomery County. This not only protects the buyers but may also in the long run protect the seller and the agents involved in the transaction. Many buyers opt to wave all inspection contingencies in a competitive bidding situation. This is OK but it is the real estate agent’s responsibility to fully educate the buyer about the new radon law before they opt to do this. I also now urge my seller clients to have the test done before the house is put on the market. The test is not very expensive and it will make the sale go smoother. However, if there is a failed test then the seller and the seller’s agent are required to make it known to any potential buyers. In most cases it is then wise for sellers to mitigate before the home goes on the market. The good news is that in almost all cases where high levels of radon are found in a home, remediation is not overly expensive. Usually a home can be made safe from radon for around $1,000 dollars or less. It is not a disastrous expense but can be a serious problems for purchasers who are buying a home and do not have a large reserve of cash.
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