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Chapter Ten

Additional Property Issues

 

Private Septic Systems

What is Title V?

     Title V regulations, Massachusetts State Environmental Code 310 CMR 15.000, went into effect on March 31, 1995.  The rule pertains to any residence that has a private septic system (or on-site wastewater disposal system) and was implemented to protect our drinking water supplies, shellfish beds and to prevent pollution of the environment.   

     Older septic systems, which were sometimes cesspools, consisted of a pit in the ground which acted as a settling chamber for solids and a leaching systems for liquids.   The soil system could be overloaded in  its capacity to remove bacteria, viruses and phosphorous and to break down ammonia and organic nitrogen compounds.  The newer septic systems have a tank in which solids can settle and begin to degrade.  They also have a distribution box and soil absorption system that provides a treatment for removing bacteria, viruses, phosphorous and nitrogen. 

    Title V regulations state that a seller of a home with a private septic system must have it inspected by a certified Title V inspector and it must pass inspection to be certified.  The certification is then valid for two years.  

     There is an an exception to this rule.  If you think you may want to resell within three years from your purchase date, have your septic pumped annually and keep the records.  Under these conditions, the Title V certification will be valid for three years.

 

Title V and Older Homes

     A word of caution when buying an older property;  even if it has passed the Title V inspection, you should do a little more checking.  According to the Department of Environmental Protection, you, as a buyer, are entitled to a copy of the Title V inspection report.  Carefully review the report, checking to see that the system passed all of the tests.  If you have any questions about the results call the Title V inspector and ask for more details on the inspection that was done. 

    If you have reason to believe that the report has been altered or contains false information, contact the Massachusetts Environmental Strike Force at 617-556-1000 or 1-888-846-5283.  

   The reason for the scrutiny is that an older system may have barely passed the Title V requirements. If that is the case, you don't want to buy a house that may not pass when it's time for you to resell the property.    A new septic system can cost between $10,000 - $30,000 so this is something to be very careful about.

     Often with older septic systems, the property will fail the Title V inspection.  In this case, the seller is forced to install a new system before the sale can be completed.  This can be a fortunate occurrence for you, since you will be getting a new septic system without any money out of your pocket.

     Information regarding the installation of the new system to be installed at the seller's expense should be put into your purchase and sale agreement.  Additionally, it should state that the seller must comply with the procedure for abandoning the old system according to State Environmental Code 310 CMR 15.354.

 

When Can the Closing Take Place?

     If the sale is taking place in the winter the ground may be too frozen to have a septic system installed or, sometimes the contractors who install them will have a full schedule and be unable to meet your closing date.  If either of these situations apply, the closing may take place prior to the completion of the system with your attorney holding back (from the proceeds of the sale) an amount that is equal to one and one half times the cost of the new septic.   The seller will have the additional funds returned once the system has been installed and inspected by the town.

    An exception to the above solution is that some banks will not allow a closing to take place if the septic has failed until the new one is completely in place and working.   If your bank has this restriction, the closing will have to be delayed until the new system is fully installed.

 

Pressure-Treated Wood

    Those of us who have decks attached to our homes know that most decks are made of pressure-treated wood.  The reason for this is that wood that has been pressure-treated resists rot, mold, fungi and insects enough to make it last ten times longer than untreated wood. Some manufacturers will offer a twenty-year guaranty or, in some cases, a lifetime.

    Pressure-treated wood is made by placing the wood in a pressurized chamber and adding liquid preservative (various pesticides) into its pores. This is how the chemical barrier against insects and damage is formed. Arsenic is usually part of the mixture.

    Until recently, this practice was not thought to cause any health risks.  However, as of  November, 2003, a study conducted by the University of Massachusetts and Wellesley College researchers determined that at least 10 Boston playgrounds contained high levels of  arsenic from the pressure-treated wood used on their playground equipment.   The researchers took soil samples from parks in city neighborhoods in Boston.  They found that even where the playground structures had been removed, there were still pieces of the pressure-treated lumber present around sandboxes and in borders.   These pieces of wood were still contributing to the level of arsenic in the soil.  

    Many of the outdoor playground structures that people currently have in their yards are made with this wood and could possibly be a danger to children if the arsenic from the structures contaminates the soil.   Currently, the scientific community has not stated to the public that this is a problem; however, I feel that in time we will be hearing more about this potentially harmful situation.

     Even with the verdict still out on the soil issue, it is important to note that if you do any repair work to a deck or playground equipment made with pressure-treated wood, such as sawing, drilling or anything that may release dust particles into the air, you should take care to not have any small children nearby and also wear a protective mask so that you do not ingest any of the particles.

    Never burn any pressure-treated wood, especially in an indoor fireplace or stove. And, if the property you are purchasing has extra pieces of this wood laying around, ask the seller to remove and dispose of it before the closing.

 

Underground Heating Oil Tanks

    Until the late 1970's, many homes were built with underground oil storage tanks. This was a space saver and sometimes used as an additional tank for back-up. During the oil embargo in the 1970's many underground tanks were used to store oil as a hedge against rising prices.   Because of the inflated oil costs, numerous homes were converted to gas or electric leaving some oil tanks buried in the ground.

    Since an oil tank's life is usually around fifteen years,  tanks that are older can leak oil and pose a threat to nearby drinking water supplies as well as to the environment in general.  Aside from the possibility of poisoning the water supply, oil fumes can cause other health problems if they migrate into homes, usually into basements.

    The EPA has no current regulatory control over residential underground oil tanks and has left this matter up to the individual states.  A number of states, including Massachusetts, have made it mandatory that no oil tank be kept underground, even one that is not currently being used for oil storage.   If a property has an underground oil tank or has had an underground oil tank in the past, this fact must be disclosed to any real estate agent or any potential buyer of the property.   If there was an oil tank on the premises, it has to have been not only removed, but certified by a DEP inspector that the area is free from any potential oil spill.

    If you purchase a property that has had an underground oil tank, be sure to get documents from the seller stating that the area where the tank was has been inspected and certified. 

 

Asbestos

    Prior to the 1970's,  asbestos was widely used in a number of construction materials due to the fact that it was strong, a fire retardant and a good insulator.  In certain circumstances,  it can be an unsafe substance to have in a home.  The potential health risks associated with asbestos are dangers arising from the material being in an airborne state.  Crumbled fibers in the air can be inhaled and cause lung cancer.  They can also cause asbestosis, which is a scarring of the lungs.

    Stable asbestos in vinyl flooring is not a threat, as long as it remains intact and undisturbed   It is the presence of  asbestos which has been disrupted through renovation or aging which can be quite dangerous.

    A typical area where asbestos may have been used is around pipes in a basement for insulation purposes.  It can also be found as siding material on older structures, often on older multi-family buildings.   If the asbestos containing material is in good condition and is in an area where it can remain undisturbed,  you should probably leave it alone.  However, if it is friable or old and likely to become airborne, you should ask the seller to have these areas encapsulated or enclosed.

     If precautions are used, asbestos can be removed.  The pieces or fragments should be as large as possible.  This can be done in the event of blocks of pipe insulation which are molded to fit pipes snugly.  They should be removed without breaking them so that no dust or fibers get into the air.  This should only be done by someone who knows how to handle asbestos and is properly suited with gloves, mask and other protection.

    A standard home inspection does not include an inspection for asbestos. If the house is an older one, ask your home inspector if he suspects any areas in it to have asbestos. If there is a reason for concern, you should bring in an actual asbestos inspector.

 

Carbon Monoxide 

      According to the Journal of the American Medical Association, carbon monoxide is the leading cause of accidental poisoning deaths in America.   Carbon Monoxide is a colorless, odorless, tasteless  gas that is produced during incomplete combustion of fuel.  This fuel includes gas, oil, coal, wood and kerosene.

     The most important places to install the detectors are in or near bedrooms.   Most carbon monoxide fatalities occur when people are sleeping.  In these cases,  the victims simply never wake up. 

            Effective March 31, 2006 new carbon monoxide compliance law went into effect.  Every residential dwelling that presently contains fossil fuel burning equipment or has enclosed parking must be equipped with working carbon monoxide alarm protection.  Every habitable level of a home, including a finished basement must have one carbon monoxide detector in it.  Detectors must also be installed no more than 10 feet away from any sleeping areas.

    EMF radiation emanates from a number of sources in the home such as hair dryers, microwave ovens, electric blankets and television sets.  The levels of EMFs are measured in "milligauss" and they rapidly decrease as you move away from the source. The EMF  generated from a hair dryer ranges from 60 to 2,000 milligauss one inch away and from a microwave oven, 40 to 80 milligauss one foot away.

     With regard to real estate issues, the controversy surrounding EMFs is associated with the proximity of high power utility lines to any given property and the possible health risks involved.   A great deal of research has been conducted to determine the health risks, if any, from high frequency transmission power lines. Some early studies had an indication of  health risks but most of the studies have found no increase in the risks associated with them. 

    In November of 1992, a Swedish study concluded that EMFs from high power lines increased the risk of leukemia in children.  Since that time, more testing has been done by the EPA, OSHA and other industrial and academic groups resulting in no convincing evidence that EMF's from power lines cause any demonstrable health hazards.

    Because of the uncertainty of all of the compiled scientific data, the issue of high voltage power lines remains controversial.   It is important to keep in mind that if you a home with this situation,  it can serve to stigmatize the property to future buyers.  To be certain of your own health and to assist with the potential resale of your home, it is best to avoid properties that have high power lines in close proximity.  

    Under the Wetlands Protection Act (WPA) M.G.L., Chapter 131, section 40 it is designated that certain areas which fall under the heading of wetlands must be regulated and protected due to their environmentally sensitive nature.  Since the rules surrounding this issue are a bit complex,  it is incumbent upon a broker listing a property, which is considered to be on wetlands, to disclose this fact to any potential buyer.

    Definition:  Wetland is a regulatory term for land that is sometimes submerged by water. This could include inland marshes, creeks, rivers, ponds, meadows, swamps, brooks, intermittent streams and drainage ditches. It can also indicate land which may become wet only seasonally.

      Because of the laws protecting these lands, there are a number of rules restricting what can be done on the property. If the wetland is very close to the house you may not be able to expand the home, build a deck or an outbuilding, or install an in-ground pool.  You also will not be able to  subdivide the property.   

     The rules also go further by stating that you cannot disturb the vegetation on wetlands in any way.  As an example, if the property behind the home you are buying is covered in brush or other growth you may feel to be unsightly, you need to know that, if this is designated wetland,  you will not be able to cut or chop the brush in any way.   

      Most people are not deterred from buying property that contains some wetlands as long as the lot is large enough.  It is sometimes looked upon as an advantage if an adjacent lot contains wetlands since this will  provide a degree of privacy due to the fact that no construction can ever take place on it. Whether or not this is your view, you should be aware of any wetlands that are on the property you are buying, their location and how this will affect your use and enjoyment of your home.

Easements

    Having an easement on your property means that someone else has a right to use it for a specific purpose.   An example of this would be:  your neighbors have an easement to walk over your driveway to get to their property or a utility company has an easement to get to a set of nearby meters. There are also easements for profit allowing a neighbor to remove something from your property, such as blueberries.

    An easement is written into the deed.   The seller knows about it and should have revealed it to the listing broker.   The broker should then disclose the information to any potential buyers or their broker.

    If the property you are interested in has an easement, get a copy of the wording on the deed and have your attorney go over it.  An easement, per se, is not necessarily something that should prevent you from purchasing and enjoying a property.  Just be sure you know all of the facts and make the decision as to whether or not it is something you can live with.

    Most often with these cases, the encroachment has been going on for many years with the current owner of the property not objecting. If it has, then, chances are the neighbor has an implied easement on your property to continue using it in this manner.

    Often these encroachments are a minor nuisance, if any, and may or may not influence your purchase of the property. The important thing is that you are aware of it and can make an informed choice.

Smoke Detectors

     Massachusetts law states that all homes must be equipped with smoke detectors.  With regard to the sale of a property, the burden for compliance falls on the seller.  Prior to the closing, the seller of a property must have the fire department come to the property and inspect their detectors to assure that they are all in working order.  The fire department will issue a certificate of compliance that must be brought to the closing.  Without this certificate, the closing cannot take place.

     The law requires that there must be an operable smoke detector on every habitable level, including the basement.  A finished attic must also be equipped.  

     On the first floor, smoke detectors should be placed on the ceiling in a hallway near a stairwell to the second floor.  If there is a bedroom on the first floor there should also be a detector outside the bedroom door.  

     On the second floor, the smoke detector must be placed on the ceiling in the hallway common to all of the bedrooms, normally at the head of the stairs.  This is done so that the smoke will get to the detector before it reaches the bedroom.  

     In the basement, smoke detectors should be placed on the cellar ceiling at the base of the stairs.  In an unfinished basement, it should be on the edge of the joist and never placed at the top of the basement stairs by the cellar door.

     In properties that were built after 1975 it is mandatory to have a hardwired system with battery backups.    

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