In the Wizard of Oz, Dorothy is tasked with overcoming numerous obstacles on the Yellow Brick Road on her quest to return home. New York homeowners and/or purchasers may find themselves in a similar situation when addressing environmental issues. In this article we address three common culprits found in New York, namely oil tanks, radon and mold. Just as Dorothy used her brain, courage, and heart to eventually find her way home, we hope the reader similarly prevails. Please note that this article is for informational purposes only. Readers are encouraged to call our office to speak with an attorney if they are seeking legal advice.
Many older homes in New York still have underground oil tanks. Most savvy real estate agents will advise the seller to remove the underground tank and install above-ground tanks before marketing the property. Notwithstanding the foregoing, we still encounter optimistic sellers who hope to avoid the cost of removing the tank. Most buyers will condition their offer on the removal of the tank prior to closing. Most buyers’ attorneys will request language in the Contract of Sale (“Contract”) requiring the Seller to remove the underground oil tank and remediate any soil or groundwater contamination. Most Sellers’ attorneys will clarify the precise nature of the documentation to be provided to the Purchaser, and in some cases, the cleanup standard.
Radon is a naturally occurring radioactive, carcinogenic gas. Educated buyers test indoor air for radon as part of their home inspection before signing the contract. According to the United States Environmental Protection Agency (“EPA”), radon should be remediated if the levels exceed 4.0 picocuries per liter. According to the EPA, in most cases a system with a vent pipe(s) and fan(s) is used to reduce radon. These “sub-slab depressurization” systems do not require major changes to the home. EPA recommends that the mitigation contractor review the radon measurement results before beginning any radon-reduction work and test again after the radon mitigation work has been completed to confirm that previous elevated levels have been reduced.
In many cases, the Contract will include a radon contingency. This allows the parties to finalize the Contract before the radon test results are returned. If radon exceeds the EPA limit, then the Seller will typically have a radon remediation system installed. However, it should be noted that in some cases Sellers will reserve the right to cancel the Contract in lieu of performing any repairs. The attorneys will negotiate the terms of the radon contingency in accordance with the parties’ wishes.
Any homeowner will tell you that water is the most pernicious enemy. Not only does it cause structural damage and destroy personal property, but water can lead to mold which can adversely impact air quality.
Contracts can address mold in several ways. Known mold can be addressed in a repair rider whereby the Seller may agree (or not, as the case may be) to certain remediation. The scope of remediation and even the contractor to be used may be specified in the rider. Mold that grows after contract signing is more problematic. This can delay closing, as an investigation and preparation of a remediation proposal are necessary.
We have also encountered mold in the context of residential leases. The lease agreement may dictate the landlord’s responsibility and depending on the cause of the mold growth and the extent of the damage, the parties may submit insurance claims for reimbursement.
Oil tanks, radon and mold are common culprits in New York. By accumulating knowledge, communicating openly with clients and brokers, and drafting contracts in clear, concise terms, we have successfully resolved many of these issues in the past.
For more information on environmental issues, please contact us at (914) 338-8050 or send an e-mail to firstname.lastname@example.org. We look forward to hearing from you.
Betensky Law PLLC
118 N. Bedford Road, Suite 302
Mount Kisco, New York 10549
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