January 12, 2016

In the State of New York, environmental issues often arise in the context of residential real estate transactions. A home inspection report may indicate the presence of mold or asbestos. A municipal search in a title report may indicate that an oil tank removal permit remains open. An experienced attorney can help identify these issues early, provide clients with sound legal advice, work with consultants to understand and develop remediation plans and negotiate a solution with the other party that allows the deal to close while protecting the rights of both parties.

Below are some examples of environmental issues that can arise in the context of residential transactions.

Potable Water.
Under Chapter 707 of the Westchester County Administrative Code, Sellers of residential properties with well water are obligated to perform a water quality test within ten (10) days of contract signing. To the extent that the well test reveals bacteria or other contaminants in excess of acceptable limits, a water purification system may be necessary to resolve the problem.

Septic.
Septic systems often require routine pumping and maintenance. In some cases the Seller may need to perform certain repairs as a condition of closing.

Mold.
A common misperception is that mold is bad. In fact, mold spores are everywhere. However, when moisture creates a condition conducive to mold growth within a residence, it can adversely impact air quality and create a health concern. Qualified professionals can test the air, identify the source of the moisture and develop a customized remediation plan that may involve removing porous materials containing mold, air scrubbing, encapsulating certain areas with water proof materials and insulation, and dehumidification.

Asbestos.
Older homes may have asbestos containing materials (ACMs) in certain areas such as boiler room or pipe insulation. Depending on the nature, location and scope of the suspected ACMs, testing and removal by a licensed contractor may be warranted. Asbestos removal is governed by the New York Labor Law.

Lead-Based Paint.
Older homes often have lead-based paint (LBP). The LBP Disclosure Form typically executed simultaneously with the conrtact of sale advises purchasers of the opportunity to conduct a risk assessment. Most buyers will waive this right and work under the assumption that the property has LBP if it was constructed before 1980.

Radon.
Some purchasers choose to perform a radon test in conjunction with the home inspection. The contract may contain language obligating the seller to cooperate during the radon test (e.g. maintaining a closed environment). In the event that radon is detected in excess of acceptable limits, the parties may negotiate to either have a ventilation system installed as a condition of closing or a credit to cover the cost.

Oil Tank Removal.
An old survey may show the presence of an underground storage tank. A municipal records search may reveal an oil tank removal permit that remains open. In certain cases, a purchaser may require that an underground tank be removed and replaced with an above-ground tank. A purchaser may request that any open permits be closed out and that the contractor provide documentation that he/she observed no evidence of leaks or spills during the tank removal project.

Wetlands and Critical Environmental Areas.
In New York, wetlands are regulated by the State and local municipalities. The size of the wetland buffer may differ depending on the jurisdiction. For example, the Town of Pound Ridge may have a 150 foot wetland buffer whereas the Town of Bedford may have a 100 foot buffer. Most local codes require a homeowner to obtain a wetland permit for any work (other than routine landscaping or maintenance) inside a wetland buffer. Local jurisdictions may also designated Critical Environmental Areas (CEAs) such as wetlands, hilltops, open spaces, and other environmentally sensitive areas. The presence of wetlands or CEAs may limit the ability of a private property owner to construct improvements.

Based on the foregoing, an experienced real estate attorney in New York can help identify environmental issues early in the process, interpret and advise clients on potential solutions, coordinate with consultants, and craft language in a contract to memorialize the understanding between the parties, thereby allowing the deal to proceed expeditiously to closing while minimizing the risk of potential disputes.

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The Law Offices of Keith R. Betensky, Esq.
The Empire Building
26 Village Green, Suite 4
P.O. Box 22
Bedford, New York 10506-0022
(914) 338-8050
keith@betenskylaw.com
www.betenskylaw.com