Ask the Attorney by
This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin.com/groups?gid=1769135
A unit in our condominium association is being sold and the seller wants the association to mitigate radon that was found in the unit. Do we have to do that? Do we need to notify the other units about the radon? This is a question that is coming up more frequently for associations. Effective January 1, 2014, the Minnesota Radon Awareness Act requires that sellers of real property provide disclosures that had not been required previously. As you can discern from the name of the act, the disclosures relate to the topic of radon. Radon is an odorless and tasteless radioactive gas that has been linked to the causation of cancer (most often lung cancer). According to the Environmental Protection Agency, radon comes from the natural breakdown of uranium in soil, rock and water. Radon typically moves up through the ground to the air above and into a home through cracks and other holes in the foundation, areas around service pipes, and even through the water supply. The entering radon becomes trapped inside the property where it can build up to unsafe levels. The Minnesota Radon Awareness Act requires that all sellers provide, prior to signing a purchase agreement: 1) the results of any radon tests that have occurred on the property; 2) the most current records and reports pertaining to radon concentrations in the dwelling; 29
Minnesota Communit y Living
3) a description of any radon concentrations, mitigation or remediation; 4) information regarding any radon mitigation system; 5) a radon warning statement; and 6) a copy of the Minnesota Dept. of Health “Radon in Real Estate Transactions” guide. While radon testing is not required when selling a property in Minnesota, many buyers are making it a condition of the sale. If radon is found to be at an elevated level, buyers will often require mitigation prior to purchasing the property, or a reduction in the purchase price to allow for a system to be installed by the new owner. Mitigation systems can vary in style, but the result intended is the same — prevent radon gases from accumulating in the living spaces. While this can be fairly straightforward in single family homes, it becomes more complex when the subject property is a condominium or townhouse unit due to issues of ownership and control over the building and architectural restrictions.
Condominiums In a condominium, the association owns and maintains everything outside of the individual units. The units are usually defined as the the interior, unfinished surfaces of the perimeter walls, floors, ceilings and doors. In order for an owner to install a radon mitigation system, it may be necessary for a change to be made to the common elements. As condominium declarations generally prohibit modification of the common elements without approval of the Board, a unit owner should have a proposal prepared detailing the system that they wish to install and how it will affect the common elements. The association should be sure that the installation will be done by a professional who is licensed and insured, that the aesthetics of the outside vent fit in with the building characteristics, that the plan avoids roof penetrations where possible, and that it is clear who will be responsible for the maintenance of the system after installation. The cost for the system, including the
Nigel H. Mendez, Esq., Carlson & Associates, Ltd.
changes to the common elements, should be borne by the unit owner.
Townhomes For a townhome, the process will usually be similar, provided that your association has architectural restrictions in place that require approval of the board or an architectural committee prior to making changes to the outside of the structure. As with a condominium, the unit owner will be responsible for the cost of purchasing and installing the abatement system.
Alert the Neighbors? The association does not have any obligation to notify other unit owners that radon gas has been found in a unit. However, it may be wise to do so. If neighboring units test and discover radon, it may be possible to install a mitigation system that can span multiple units. This will likely result in a less expensive installation, on a per unit basis, and only one exterior vent may be needed.
Common Areas? If the association discovers radon gases at an elevated level in the common area, the cost of the necessary mitigation would be a common expense paid by the association. This situation is more likely to arise in an association with a party room, exercise room or guest suite. There is no legal requirement for an association to test for the existence of radon, but if neighboring units are discovering elevated levels, it would be wise for associations to investigate. To have a question answered in a future article, please email it to me at nmendez@carlsonassoc.com with the subject line “Ask the Attorney.” While I can’t promise that all questions will be answered, I will do my best to include questions that have a broad appeal. Questions will also be answered by other attorneys practicing in this area of law. The answers are intended to give the reader a good understanding of the issue raised by the question but are not a substitute for acquiring an opinion from your legal counsel.