Published on: July 10, 2013
When anyone mentions the presence of gas in a residential setting, alarm bells begin to ring. Many people think first of carbon monoxide – appropriately nicknamed the silent killer ─ or imagine natural gas lines exploding and destroying buildings or whole neighborhoods.
So when board members or managers call us to report that radon gas has been found in a unit, there is almost always a sense of urgency and some managed fear resonating from the other end of the line when they ask, “What, if anything, is the association required to do?”
My answer is always the same: “Don’t panic.” The association’s obligations to deal with radon, if any, are generally limited and the worst case for boards and owners will almost certainly be far less problematic and less costly than they initially fear.
Lack of information about radon is usually the biggest problem and the best place to start this discussion. Radon is an odorless, colorless radioactive gas that forms naturally underground as the uranium found in rocks, water and soil decays. The gas can seep into buildings through the foundation; if concentrated at high enough levels, it can become a serious health hazard. Radon is, in fact, the second leading cause of lung cancer (behind smoking) and the leading cause of lung cancer in non-smokers.
There is no federal or state requirement to remove radon, as there is for lead paint in residences occupied by young children; but guidelines issued by the Environmental Protection Agency (EPA) recommend mitigation measures if radon concentration levels exceed 4.0 picocuries per liter. Many consumers have added radon testing to the due diligence they perform before buying a home.
The discovery of high radon levels in a condominium community typically conjures nightmare images of a multi-million-dollar envelope reconstruction project to prevent radon seepage. But radon mitigation is usually a simple process involving the installation of a small ventilation system in the affected unit(s), requiring minimal drilling through common elements, and typically costing no more than $2,000 for a single unit.
Perhaps most important, mitigation of a radon problem within a unit is in most cases the responsibility of the owner, not the condominium association. This often requires some explanation to owners, as it can seem rather counterintuitive.
If water seeps into a unit because of a common area defect such as flaws in the roof or the foundation, the association is responsible for making the necessary repairs to prevent the water infiltration. Although radon similarly seeps into a building through a common element (the foundation), assuming there are no cracks or other defects in the foundation, there is nothing the association can do to prevent the underground process that naturally produces the gas and nothing it can do to prevent its intrusion into the building through the foundation. An analogy would be high humidity levels in a basement unit. If the problem isn’t the result of a defect in the common area foundation the unit owner and not the association would be responsible for installing a dehumidifier to mitigate the moisture. The same is true with radon.
The association would have to bear the cost of mitigating high radon concentrations in common areas such as meeting rooms, clubhouses, and exercise rooms. But if the problem is within individual units, unless the condominium declaration specifies otherwise or it is shown that the radon is entering through a defect in the foundation, the association has no obligation to cover mitigation costs.
Don’t Say No
However, boards do have every reason to cooperate with owners by approving the common area modifications that will usually be required to install ventilation equipment. Liability is one obvious concern for the association. Most condominium documents require owners to obtain board approval to modify common elements. If boards reject mitigation requests and residents of the unit subsequently suffer adverse health effects attributable to radon, the association could be held responsible. Additionally, a high radon level may make it more difficult, if not impossible, to sell a unit, so it is in everyone’s interests to allow owners to mitigate the problem without having to jump through arduous hoops in order to do so.
That said, boards should establish reasonable guidelines for the mitigation process, as they would for any modifications affecting common areas. As a condition of approving radon-related modification requests, boards should require owners to sign an agreement specifying among other criteria, the owner’s obligation to:
- Retain a professional radon mitigation contractor to perform the work;
- Ensure that the work confirms with applicable federal and state guidelines for radon mediation; and
- Assume responsibility for the maintenance, repair and replacement of the radon mitigation system.
This agreement should also specifically prohibit roof penetrations when there are other reasonable venting alternatives and it should require that vent pipes be camouflaged so they blend in with the building’s exterior.
Some states require home owners to disclose the presence of radon or the results of a radon test to prospective buyers, but Massachusetts isn’t among them. Although sellers must respond honestly if asked about radon, they don’t have to provide the information voluntarily.
For condominium boards, awareness of high radon levels in a unit does not necessarily create an obligation to disclose that information to existing owners. But while disclosure to association members may not be legally required in a given circumstance it is definitely a good practice that we advise boards to follow. Owners will almost certainly notice a mitigation project or hear about it; it is best for that information to come directly from the board to ensure its accuracy and to prevent rumors and the myriad of problems rumors can create.
Any notice to owners should inform them that high radon levels have been detected in the community, suggest that they may want to test for radon in their own units, explain that owners are responsible for their own testing and mitigation costs, and remind them that they will need board permission for any work requiring modification of common elements. The notice can also provide basic information about radon and the radon mitigation process with a list of resources owners can consult for more detail.
While boards have no obligation to disclose radon levels (or anything else) to prospective condominium buyers or lenders, many boards do fill out so-called lender questionnaires in order to facilitate sales and refinances at the property. Boards should always manage these questionnaires carefully. Some questions require more than a simple yes or no response and some shouldn’t be answered at all. If the question is vague and open-ended, as these questions often are, we generally advise our association clients not to respond.
For example, “Are there any adverse environmental hazards affecting the common areas or the units?” is one question that boards and managers are asked frequently but can’t possibly answer without stumbling into a bottomless liability pit. Because of the potential liability, if elevated levels of radon have been detected at the property, boards and managers should review questions related to that condition carefully before answering them. Any responses they provide must be truthful and accurate. The safest course is to have the association’s attorney review the completed questionnaire before submitting it to the lender.
That advice applies to handling radon mitigation issues generally. The broad principle I’ve outlined here ―owners are responsible for radon mitigation in their units and associations are responsible for the common areas ― will apply in almost all situations, but there could be exceptions. Radon mitigation obligations are both document- and fact-specific. Your attorney should be able to answer any questions if the association’s responsibilities don’t seem clear.
By Mark Einhorn