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As of October 1, 2016, Montgomery County law requires that prior to settlement on the sale of a single family home (attached or detached, but not a condo or co-op), the home must be tested for radon.  The law applies to all residential settlements after October 1, 2016, regardless of when the buyer and seller signed the contract for sale.

The seller must perform the test or permit the buyer to perform the test.  If the buyer declines the right to perform the test, however, the seller MUST perform the test. The testing requirement CANNOT be waived by the buyer.  The test results must be provided to both the buyer and seller.

It is important to note that the law does not require the seller to remediate if the test indicates the presence of radon, nor does it provide the buyer the right to cancel the transaction based on the test results.  The Greater Capital Area Association of Realtors (“GCAAR”) has revised its form No. 900, the Regulations, Easements and Assessments (REA) Disclosure and Addendum, to add new section numbered 4, which allows the seller to make a radon disclosure compliant with the new law.  However, GCAAR has not yet revised the language of its form Radon Inspection Contingency (found in clause numbered 4 of form No. 1332, the Addendum of Clauses – A).  Since the REA Disclosure and Addendum has been revised but the Radon Inspection Contingency has not, there may be some inconsistency between these two forms with respect to application of the new law.  For example, in the event that the seller discloses in the REA Disclosure and Addendum that the seller has performed or will perform the test, and if the buyer wants to make the contract contingent on the radon test results, or otherwise require the seller to remediate prior to settlement, the language of the Radon Inspection Contingency may be insufficient to meet the buyer’s needs.

The law does not apply to properties in the City of Rockville, the Town of Kensington, the Town of Barnesville and the Town of Poolesville.  Additionally, the following types of property transfers are exempt:

1. Those exempt from transfer tax under MD Tax-Property Code §13-207;
2. A lender or an affiliate or subsidiary of a lender that acquired by foreclosure or deed in lieu;
3. A sheriff’s sale, tax sale, or sale by foreclosure, partition or by court appointed trustee;
4. Transfer by a fiduciary in the course of administering a decedent’s estate, guardianship, conservatorship, or trust; and
5. Transfer of a home to be demolished by buyer or converted to another use.

If you have any questions regarding the radon law, call one of the lawyers listed below.

CONTACT

Matthew D. Alegi Danielle M. Dolch David M. Kochanski Marc D. Lipman

MORE INFORMATION

For more information regarding our Residential Real Estate Settlements Group or our general real estate transactions and litigation practice, please contact the Group Chair at 301-230-6574 or settlements@shulmanrogers.com.

This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.