Radon Alert

In purchasing a home, buyers hire a home inspector to test for many things including radon. Radon is radioactive gas that inspectors have found in homes across the country. According to the U.S. Environmental Protection Agency (EPA), radon comes from the natural breakdown of uranium in soil, rock and water and gets into the air we breathe. The EPA's consumer guide states, Radon is the second leading cause of lung cancer. The Surgeon General and the EPA recommend testing for radon and reducing radon in homes that have high levels. Fix your home if your radon level is confirmed to be 4 Pico curies per liter (pCi/L) or higher. Radon levels less than 4 pCi/L still pose a risk, and in many cases may be reduced. If you smoke and your home has high radon levels, your risk of lung cancer is especially high.

Generally, a buyer may terminate a sales agreement if the inspection determines that the home has a substantially materially deficient condition that that the buyer did not have knowledge of prior to signing the agreement. Under Rhode Island law sellers are required to disclose known defects in writing, including the existence of radon.

Inspectors normally test for radon by placing canisters in the basement. In a recent case, the local federal court ruled a radon test performed in an unfinished basement that resulted in a level exceeding the legal limit was not a substantially materially deficient condition entitling the buyers to cancel a contract. The buyers had terminated the contract, stating the radon was a health hazard, and thus constituted an undisclosed, substantially materially deficient condition entitling them to cancel the agreement.

The sellers tested for radon on the first floor and the results were below the legal limits. The sellers sued the buyers claiming the radon level in the basement was not a deficient condition. The sellers subsequently sold the property for less money and claimed the difference between the original and subsequent purchase price among their damages.

In ruling for the sellers, the court cited the EPA guidelines for radon testing, which advise buyers to make sure the test is done in the lowest level of the home suitable for occupancy. This means the lowest level that you are going to use as living space which is unfinished or does not require renovations prior to use. The court noted the sellers' inspector performed the test in a basement that had a stonewall foundation, dirt floor, with only a small concrete slab to support the hot water heater. The basement did not have finished walls or a ceiling and rudimentary lighting. The court concluded the basement was unfinished and required substantial renovations to make it livable. Therefore, under the EPA guidelines the test should have been performed on the first floor.

In summary, when testing for radon, parties should refer to the EPA guidelines and ensure the testing is done in the lowest level which a buyer could use for living space without renovations.

This article contains general information and is not intended to give legal advice. If you have specific questions, you are encouraged to contact an attorney. The R.I. Supreme Court licenses all lawyers in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any field of practice.


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