Radon is a radioactive gas that enters structures from the surrounding soil. It is a naturally occurring gas that is colorless, odorless, and tasteless. Radon is the second leading cause of lung cancer in the United States, second only to smoking, and causes more than 21,000 deaths annually in the United States.
Radon is an increasingly greater concern facing Minnesota homeowners. According to state records, since 2000 more than 40 percent of tests conducted in Minnesota homes have shown unsafe levels of radon. The Minnesota Department of Health suspects that one-in-three existing homes present a large health risk to their occupants if they are exposed to radon over several years.
Despite its prevalence in Minnesota, the state has not passed legislation requiring homeowners to test for radon before selling a house. In addition, no federal regulations address the presence of radon in residential real estate. However, sellers cannot willfully hide or mislead potential purchasers of the existence of radon. Sellers should disclose the results of a previous test to avoid potential costly litigation.
The Minnesota Radon Awareness Act
Effective January 1, 2014, all residential home sales (including: existing homes, new construction and high rises) in Minnesota will be required to conform to the MN Radon Awareness Act. See these links:
Under the Radon Awareness Act (“RAA”), sellers must now disclose in writing to the buyer any knowledge the seller has of radon concentrations in the home. The disclosure must include each of the following matters:
- whether a radon test or tests have occurred on the real property;
- the most current records and reports pertaining to radon concentrations within the dwelling;
- a description of any radon concentrations, mitigation, or remediation;
- information regarding the radon mitigation system, including system description and documentation, if such system has been installed in the dwelling; and
- a radon warning statement in this format:
Radon Warning Statement
The Minnesota Department of Health strongly recommends that ALL homebuyers have an indoor radon test performed prior to purchase or taking occupancy, and recommends having the radon levels mitigated if elevated radon concentrations are found. Elevated radon concentrations can easily be reduced by a qualified, certified, or licensed, if applicable, radon mitigator. Every buyer of any interest in residential real property is notified that the property may present exposure to dangerous levels of indoor radon gas that may place the occupants at risk of developing radon-induced lung cancer. Radon, a Class A human carcinogen, is the leading cause of lung cancer in nonsmokers and the second leading cause overall. The seller of any interest in residential real property is required to provide the buyer with any information on radon test results of the dwelling.
The RAA also requires sellers to provide the buyer with a copy of the Minnesota Department of Health publication entitled “Radon in Real Estate Transactions.” (To Be Developed, but hiring certified professionals will be “highly recommended” or otherwise worded).
These new disclosure and notice requirements apply to the transfer of any interest in residential real estate, whether by sale, exchange, deed, contract for deed, lease with an option to purchase, or any other option or conveyance. I believe the law will also apply to transfers of other limited interests in residential real estate, such as life estates.
Finally, the disclosure and notice requirements must be satisfied before the buyer signs the purchase agreement. If not, I presume the contract is voidable by the buyer, at his/her election.
Advice for Homeowners
Because real estate sales can happen quickly, homeowners may have little time to deal with radon and other issues. The best thing to do is to test for radon now and save the results in case the buyer is interested in them. Fix a problem if it exists so it won’t complicate your home sale. If your test results determine unhealthy levels of radon, several solutions that are reasonably priced have been developed to mitigate the presence of the gas and reduce it below unsafe levels. Information about radon mitigation is available at the Minnesota Department of Health’s website: http://www.health.state.mn.us/divs/eh/indoorair/radon/index.html
Advice for Potential Purchasers
If you are purchasing a home, ask if the home has any radon-resistant construction features and if the home has been tested for the presence of radon. Prospective buyers should keep in mind that it is inexpensive and easy to measure radon, and radon levels can be lowered at a fairly reasonable cost, as noted above.
If the Home Has Been Tested
The purchaser must decide if the results of past tests are acceptable. In making this decision, the purchaser should consider:
- Test duration. Long-term tests should span both heating and non-heating seasons.
- Timing of test. Short-term tests performed during the heating season are more likely to overestimate the year-round average. Short-term tests performed during the non-heating season are more likely to underestimate the year-round average.
- Tested Area. Determine if the location tested reflects your anticipated use of the home.
- Tester. Although not a requirement in Minnesota, using a radon measurement professional certified by either NEHA or NRSB is recommended if you hire a third-party to do the testing.
- Level of radon. Are you comfortable with the level of radon listed on the test results?
If the Home Has Not Been Tested or if Past Testing is Not Satisfactory
The buyer should decide if they wish to request radon testing. If a request is made, it is best to bring it up as early as possible. If a buyer asks for radon testing prior to a home purchase, Minnesota Department of Health recommends specifying the conditions.
Some points are noted below, and may be included in the sales contract:
- Who will perform the test.
- Type of test: short-term, long-term and/or continuous monitor.
- Area of the home to be tested.
- When the test will be done.
- How results will be shared between parties.
- Who will pay for testing.
- How the results will be used.
- At what radon level will mitigation be required and who will pay for it.