Home Environmental Hazards

Home environmental hazards is the working name for the substances and site conditions that can make a house unhealthy to live in: lead-based paint and the dust and soil it contaminates, radon, asbestos, mold, formaldehyde and other indoor air contaminants, underground fuel and chemical storage tanks, contaminated soil or well water, and residues left by illegal drug manufacture. The grouping is not a federal category, but it is a real one that legislatures use. California directs its Department of Real Estate to develop a booklet educating consumers about "[c]ommon environmental hazards that are located on, and affect, real property", and specifies that the types "shall include, but not be limited to, asbestos, radon gas, lead-based paint, formaldehyde, fuel and chemical storage tanks, and water and soil contamination".

The single most useful thing to understand about the whole category is how unevenly it is regulated. One hazard, lead-based paint in older housing, carries a federal duty at every sale and lease. Everything else on the list is a matter of state disclosure law, of what the purchase contract requires, or of the buyer's own initiative, which usually means it is the buyer's problem to go and find.

What the federal lead rule actually requires of a seller. Under 24 CFR 35.88, before a purchaser or lessee is obligated under a contract for pre-1978 housing, the seller or lessor must do four things. Provide an EPA-approved lead hazard information pamphlet. Disclose the presence of any known lead-based paint or known hazards, together with the basis for knowing, the location, and the condition of the painted surfaces. Disclose the same information separately to each agent involved. And provide any records or reports available, a requirement that extends to common areas and, in multifamily housing, to reports on other units where they are part of an evaluation of the building as a whole. The regulation defines "available" as "in the possession of or reasonably obtainable by the seller or lessor at the time of the disclosure", which is broader than a filing cabinet.

The sentence that defines the shape of the duty sits in the same paragraph: "Nothing in this section implies a positive obligation on the seller or lessor to conduct any evaluation or reduction activities." The rule compels honesty about what is known and hands over what exists. It does not compel anyone to find out. That distinction runs through this entire subject, and a buyer who reads a disclosure saying "no knowledge" has learned that the seller has no reports, not that the house is clean.

A sale and a lease get different warnings. Section 35.92 requires an attachment to every contract to sell target housing containing a Lead Warning Statement in prescribed words, the seller's statement disclosing known lead-based paint or indicating no knowledge, a list of records provided, the purchaser's acknowledgment, a statement that the purchaser received or waived the evaluation opportunity, a statement that any agent has informed the seller of their obligations, and signatures certifying accuracy. A lease attachment under the same section requires a shorter and differently worded warning statement, and it has no evaluation-opportunity line, because that opportunity runs to purchasers. Both sides have to keep the completed attachment for at least three years.

The agent is not a bystander. Section 35.94 requires each agent to ensure compliance with the subpart, by informing the seller or lessor of their obligations and either confirming that the seller performed them or performing them personally. It also gives the agent a defined shelter: an agent who has informed the seller "shall not be liable for the failure to disclose to a purchaser or lessee the presence of lead-based paint and/or lead-based paint hazards known by a seller or lessor but not disclosed to the agent". A seller who conceals from their own agent is the one exposed.

The federal rule is a floor, and it says so. Section 35.98 provides that "[n]othing in this subpart shall relieve a seller, lessor, or agent from any responsibility for compliance with State or local laws, ordinances, codes, or regulations governing notice or disclosure of known lead-based paint and/or lead-based paint hazards", and adds that neither HUD nor EPA "assumes any responsibility for ensuring compliance with such State or local requirements". State and local requirements sit on top, and they are where most of the variation lives. One more federal provision is worth knowing because of what it forecloses: 42 U.S.C. 4852d(c) says that nothing in the lead disclosure statute affects the validity of a sale or a mortgage, "nor shall anything in this section create a defect in title". A disclosure failure is a claim between the parties, not a cloud on the property.

Radon: strong guidance, no federal sale duty. Congress declared a national long-term goal in 15 U.S.C. 2661 that "the air within buildings in the United States should be as free of radon as the ambient air outside of buildings", and EPA publishes the numbers everyone works from. EPA recommends that homes "be fixed if the radon level is 4 pCi/L (picocuries per liter) ... or more", and because "there is no known safe level of exposure to radon", it "also recommends that Americans consider fixing their home for radon levels between 2 pCi/L and 4 pCi/L". For scale, EPA puts the average indoor concentration in American homes at about 1.3 pCi/L and the average outdoor concentration at 0.4 pCi/L, and it is on that national average indoor level that EPA bases its estimate of 21,000 radon-related lung cancers a year. None of that is a regulation, and none of it obliges a seller to test or to disclose under federal law. Radon testing on a home purchase happens because the buyer asks for it in the contract, or because a state requires something, or not at all.

Everything else is contract and state law. Mold, asbestos in older flooring and insulation, an abandoned heating-oil tank in the yard, a private well with nitrate or arsenic, formaldehyde in manufactured wood products, contamination from a former dry cleaner two doors down: none of these carries a federal duty at sale. They are picked up, if at all, by the state's disclosure regime, by a specialist test the buyer pays for during whatever inspection period the contract allows, or by a neighbor mentioning it after closing.

For a house built before 1978, the federal sequence is short and precise.

1. The seller assembles what they have. Any lead evaluation report or record in their possession or reasonably obtainable, plus what they know about painted surfaces.

2. The seller discloses to the buyer and to each agent, and hands over the EPA pamphlet and the records.

3. The prescribed attachment goes onto the contract, with the Lead Warning Statement, the seller's disclosure or statement of no knowledge, the list of records supplied, the buyer's acknowledgment, and everybody's signatures.

4. The agent verifies compliance or performs the steps personally, and the completed attachment is kept for at least three years.

5. State and local rules apply on top, because the subpart expressly does not displace them.

For every other hazard, the sequence is the buyer's rather than the seller's: decide which tests matter for this house, get them scheduled inside the contract's window, and read the results before the window closes.

A hypothetical, on the difference between a disclosure and a test. Ezra is buying a 1958 house. The sellers tick "no knowledge" of lead-based paint, correctly, because they have never tested and hold no reports. Ezra has therefore learned nothing about whether lead is present. He spends $450 on a radon test and a lead-paint risk assessment during the inspection period. The radon result comes back at 5.2 pCi/L, above EPA's 4 pCi/L action level, and a mitigation contractor quotes $1,400 to install a sub-slab depressurization system. Ezra's realistic choices are to ask the sellers for a $1,400 credit, to split it, or to absorb it, and the reason he has any of those choices is that he ordered the test while a contingency was still open. Nothing in the federal disclosure told him the radon level, because the federal disclosure is not about radon at all.

Pros

• The one federal duty that exists is sharply defined, applies at every covered sale and lease, and reaches the agent as well as the seller.
• It requires records to be handed over, not merely summarized, so a buyer who receives a report can read the underlying data.
• It is expressly a floor, so a state that wants to require more is free to.
• EPA publishes an action level and a national average for radon, which gives a buyer a benchmark to interpret a test result against.

Cons

• Disclosure is not detection. A truthful "no knowledge" answer is entirely consistent with a serious hazard nobody has looked for.
• The federal rule covers one hazard in one class of housing. Radon, mold, asbestos, tanks and well water are outside it.
• Testing costs fall on the buyer, arrive during the busiest part of the transaction, and each hazard is usually a separate engagement.
• What a seller must volunteer varies by state, so a buyer's expectations from a previous purchase somewhere else can be badly wrong.
• Several of these hazards are cheap to find and expensive to fix, which is a combination that rewards testing early and punishes waiting.