November 2013 Article - MINNESOTA 

Overview of the New Minnesota Radon Awareness Act – Part 1

If you sell or transfer single-family residential real estate in Minnesota on—or any time after—January 1, 2014, then you and your buyer and seller clients will need to understand and comply with the new Minnesota Radon Awareness Act. 


Responsibilities
 
Because your residential buyer and seller clients will also be affected by this law, you will have to inform them about their responsibilities, duties, and choices, and you are responsible for providing your buyer clients with a radon disclosure given to you by the seller. This course will cover the details of those responsibilities.
 
 
Disclosure Requirements

1. Radon disclosure
Sellers will need to disclose whether there is a known presence of radon in their homes before signing an agreement to sell or transfer residential real property. The seller must make this disclosure in writing to the buyer, including any knowledge the seller has of radon concentrations in the dwelling.
 
The radon disclosure must include:
 
(1) whether a radon test or tests have occurred on the real property;
 
(2) the most current records and reports pertaining to radon concentrations within
the dwelling;
 
(3) a description of any radon concentrations, mitigation, or remediation;
 
(4) information regarding the radon mitigation system, including system description
and documentation, if such system has been installed in the dwelling; and
 
(5) a radon warning statement [the required text will follow shortly].
 
Your disclosure duties as a real estate licensee - The seller may instruct you, as their agent, to provide this disclosure to potential buyers. This is stipulated in the Act as follows:
 
“A seller may provide the written disclosure required under this section to a real estate licensee representing or assisting a prospective buyer. The written disclosure provided to the real estate licensee representing or assisting a prospective buyer is considered to have been provided to the prospective buyer. If the written disclosure is provided to the real estate licensee representing or assisting the prospective buyer, the real estate licensee must provide a copy to the prospective buyer.”

Notice that the law says “…licensee representing or assisting the prospective buyer…” If you have an agency relationship with the prospective buyer, you are representing that buyer. If you are helping buyers negotiate or offer to purchase property, and you are not representing those buyers, you are probably assisting them.

2. Radon warning statement
The radon warning statement must include the following language:

"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."

3. MDH Publication
Sellers must provide the buyer with a Minnesota Department of Health (MDH) publication entitled “Radon in Real Estate Transactions.” 
  

Free online course: “Understanding the Minnesota Radon Awareness Act.” You may take a free 1-hour online Minnesota CE course in that will review the requirements of the Minnesota Radon Awareness Act in more depth, plus information about where radon comes from, its dangers, how to test for it, and how to mitigate it.   Because you will likely be faced with radon issues in your real estate transactions after January 1, 2014, this CE course is highly recommended for Minnesota licensees.   To enroll in this free course, go to our Minnesota Continuing Ed Course List page. You may enroll now, and take the course any time later.

By Jim Luger, CDEI
Certified Distance Education Instructor

---

Overview of the New Minnesota Radon Awareness Act – Part 2

Your Duties as a Real Estate Licensee
 
You are your sellers’ advisor
The law requires sellers to make these disclosures and documents, but as their listing agent, you should direct them to the required disclosure text and the MDH publication, entitled “Radon in Real Estate Transactions.” (NOTE: This publication will be available from the Minnesota Department of Health on or before January 1, 2014.)
 
You are your buyers’ advisor
Make sure your buyers receive all the required radon documents for properties they are interested in, including the MDH radon publication. If the seller, or seller’s agent, gives you these documents, you are required to give them to buyers who want to make an offer and/or negotiate to purchase the property, whether you are representing or assisting the buyers.

When Radon Disclosures Are Required
(And When They're Not)
 
The seller's radon disclosure requirements apply to the transfer of any interest in [single family] residential real estate, whether by:

• Sale
• Exchange
• Deed
• Contract for deed
• Lease with an option to purchase, or any other option

  
The seller's radon disclosure requirements do not apply to any of the following:

• Real property that is not residential real property
• A gratuitous transfer
• A transfer made pursuant to a court order
• A transfer to a government or governmental agency
• A transfer by foreclosure or deed in lieu of foreclosure
• A transfer to heirs or devisees of a decedent
• A transfer from a cotenant to one or more other cotenants
• A transfer made to a spouse, parent, grandparent, child, or grandchild of the seller
• A transfer between spouses resulting from a decree of marriage dissolution or
• from a property settlement agreement incidental to that decree
• An option to purchase a unit in a common interest community, until exercised
• A transfer to a person who controls or is controlled by the grantor as those terms
• are defined with respect to a declarant under section 515B.1-103, clause (2);
• A transfer to a tenant who is in possession of the residential real property
• A transfer of special declarant rights under section 515B.3-104. [For more information about this section (515B.3-104 Transfer of special declarant rights), see www.revisor.mn.gov.]

The radon disclosure exemptions might require legal advice If you think your sellers might not have to make required radon disclosures because of one or more of the above exemptions, you should consider recommending that they receive competent legal advice.

Liability
 
According the Minnesota Radon Awareness Act:

1. A seller who fails to make a radon disclosure as required by this section, and is aware of material facts pertaining to radon concentrations in the dwelling, is liable to the buyer.
2. A buyer who is injured by a violation of this section may bring a civil action and recover damages and receive other equitable relief as determined by the court. An action under this subdivision must be commenced within two years after the date on which the buyer closed the purchase or transfer of the real property.
3. This section does not invalidate a transfer solely because of the failure of any person to comply with a provision of this section. This section does not prevent a court from ordering a rescission of the transfer.

By Jim Luger, CDEI
Certified Distance Education Instructor

---