[The following is an excerpted from “Environmental Liability: Managing Environmental Risks in Corporate, Real Estate and Brownfield Transactions” written by Larry Schnapf and published by Juris Law Publishing]

State Disclosure Statutes

In addition to the state transfer statutes discussed above, a number of states have enacted disclosure statutes that require sellers to notify purchasers of certain environmental conditions on the property prior to the transfer. Failure to comply with these statutory notice requirements may subject the vendors to liability for cleanup costs and/or damages for diminution in market value as well as for common law fraud or misrepresentation.

Readers should also be aware that CERCLA and many state superfund laws provide that if an owner fails to disclose the presence of contamination to a prospective purchaser or operator of the property, the owner may forfeit any liability relief it may have obtained when it acquired the property such as the innocent purchaser’s defense, the third party defense or a covenant not to sue.

The states listed below have disclosure requirements for releases of hazardous substances. State laws requiring disclosure for asbestos or lead-based are discussed in Chapter 8. 

Many states have adopted voluntary cleanup (VCP) or brownfield programs that allow property owners to leave residual contamination at a site provided the land use is restricted and the owners establish engineering or institutional controls. Most of those states require that the sellers of properties that have not been remediated to residential cleanup standards notify purchasers of that the property contains residual contamination. The list below does not specifically address notice requirements for the state VCP or brownfield programs. Readers should refer to section 8.22 for more information on state VCP and brownfield programs.

Alaska-

A seller of residential property is required to file a disclosure statement of property defects including environmental conditions.  

California

California has a number of disclosure requirements for environmental matters. Owners of non-residential property who know or have reason to believe that a release of hazardous substances has occurred on or beneath the property to give written notice to a purchaser or lessee before the property may be sold or leased. If the owner fails to provide the required notice, the buyer or lessee may rescind the transaction and may hold the seller liable for any cleanup costs. Moreover, if the seller has actual knowledge of the release and willfully fails to provide the requisite notice, the seller can be subject to civil penalties of up to $5,000.

Lessees of any real property are also required to notify the owners or sublessor within a reasonable amount of time when the lessee knows or has reason to believe that there has been a release of hazardous substances or the presence of hazardous substance in any quantity. If the lessee who has knowledge of the release of a reportable quantity or material amount of hazardous substance and willfully fails to provide the required written notice, the lessee shall be subject to civil penalties of up to $5,000. In addition, the failure to provide the written notice shall constitute a default of the lease. However, the tenant may cure the default by promptly implementing a remedial action that is acceptable to the property owner. This corrective action will not prevent the lessee from becoming liable for civil penalties associated with the release.

Owners of property who know or have probable cause to believe that their property is located within 2,000 feet of a release of hazardous substances and who plan to redevelop the site for residential purposes must notify the state Department of Toxic Substance Control to determine if the property is to be identified as a “border zone property”. If so, a written instrument would have to be prepared (see below).  

California also requires that sellers of real property containing one to four dwelling units provide a “Real Estate Transfer Disclosure Statement” when transferring these properties. The seller must indicate any information it may know about the presence of hazardous substances, asbestos, formaldehyde, radon gas, lead-based paints, fuel or chemical tanks as well as the presence of contaminated soils or groundwater.

Under the Environmental Responsibility Acceptance Act, owners of commercial, industrial or agricultural real property who discover a release of hazardous substances may identify and notify the parties responsible for the release if they would like to take advantage of the litigation and liability relief provisions of the law.

Colorado-
 
A person may not transfer or assign or substantially change the use of a hazardous waste disposal facility without prior approval from the board of commissioners or municipality.

Iowa- 

A person may not transfer, lease or substantially change the use of a hazardous waste or hazardous substance disposal site without the prior approval of the state. 

Maine

Owners of property containing USTs used to store hazardous substances are required to notify prospective purchasers or tenants prior to the transfer of title or possession of the presence of the USTs 

An environmental professional who obtains analytical information indicating a release of petroleum or hazardous substances in concentrations that the consultant believes in its best professional judgment requires remediation to prevent a significant threat must provide the information to the client. The client must, in turn, advise the owners or operators of the property. The owner or operator is required to notify the state within a reasonable time unless some other disclosure requirement applies or the owner or operator can assert a privilege. 

The Maine Real Estate Commission has also promulgated regulations that impose upon a listing broker, or the buyer's broker where there is no listing broker, a duty to ask the seller if it has any knowledge of any current or prior presence of hazardous materials on the property being sold. The brokers are specifically required to ask about asbestos, lead-based paints, radon and USTs. The broker is required to convey the results of this inquiry to the buyer in writing prior to or during the preparation of an offer and advise the buyer to make its own appropriate inquiry. 

Maryland-

Builders of new homes and sellers of existing single-family homes must disclose any actual information they might have regarding hazardous materials.  

Michigan

A person who transfers an interest in real property and who has actual or constructive knowledge of a release must provide written notice to the transferee prior to the transaction. The notice must be a separate instrument and the transferor must record the notice with the registry of deeds if the instrument of conveyance must be recorded. An owner must also disclose the results of any baseline environmental assessment (“BEA”) to a subsequent purchaser or transferee. Failure to provide the BEA will cause the owner to lose its exemption from liability.

Mississippi-

Transferors of property are required to provide a pre-transfer statement which discloses defects known to the seller including the presence of asbestos, hazardous substances and underground storage tanks including the presence of asbestos, lead-based paint, underground storage tanks, past industrial uses or hazardous or toxic waste.

Nebraska-

The state Real Estate Commission requires sellers to complete and deliver a “Seller Property Condition Disclosure Statement” for residential real property. The form requires the seller to disclose the presence of asbestos, contaminate soil or groundwater, lead-based paint, radon, underground storage tanks, asbestos, toxic materials, buried materials and hazardous substances. The seller is also required to provide any tests that have been conducted at the property. 

Nevada-

Sellers of residential property containing must provide the purchaser with a statement that discloses defects known to the seller at least 10 days before the conveyance including underground oil tanks. If a seller subsequently discovers a new defect or determines that a defect is worse than disclosed, the seller must notify the buyer as soon as practicable. If the seller does not agree to repair or replace the defect, the buyer may rescind the contract. If the seller conveys the property without knowingly disclosing a defect, the buyer may be entitled to treble the damages necessary to repair or replace the defect. The buyer must bring such an action within one year of discovery of the defect or within two years of the conveyance whichever is later. However, a buyer cannot recover damages for an error or omission in the disclosure statement if the seller relied on information provided by a state officer or certified consultant.

New Hampshire-

A seller of property must certify that USTs located on the property are in compliance with state UST requirements and to provide disclosure of environmental conditions including lead-based paint. 

New York-

A person may not transfer, lease or substantially change the use of a site that is listed on the state Registry of Inactive Hazardous Waste Sites without providing the state Department of Environmental Conservation with 60 days advance notice of the proposed conveyance or substantial change in use. For purposes of the notice requirement, a “substantial change” includes constructing a facility, paving a parking lot, creating a park or other recreational facility as well as transferring title or leasing the property.  

Ohio-

Sellers of residential property are required to disclose the existence of hazardous materials including asbestos, lead-based paint and radon gas. A licensee is also required to make such a disclosure of known material defects such as environmental contamination to a purchaser if the purchaser could not discover the existence of these conditions through “reasonably diligent” inspection. 
 
Rhode Island

The Rhode Island real estate sales disclosure law requires sellers to deliver a written statement “as soon as practicable” but no later than the execution of the sales agreement. The statement must disclose all known deficient conditions known to the seller. The list of deficient conditions includes the presence of hazardous wastes on the property.

If the buyer subsequently discovers the existence of a “materially deficient condition" prior to the execution of the contract that was not disclosed by the seller, the buyer may reject the seller's offer. If the buyer discovers the material deficient condition after the execution of the contract but before the closing, the buyer may terminate the agreement or provide the seller with an opportunity to cure. If the buyer requests the seller to correct the condition, the buyer must provide the seller with an environmental site assessment report within seven days of the receipt of the report and the seller then has seven days to decide whether to correct the condition at its expense. If the seller declines to do so, the buyer may terminate the contract and the seller must refund the buyer's deposit.

In addition, every contract for the transfer of residential property must contain an acknowledgement in which the seller states that it has made a complete disclosure to the buyer. While a buyer may not void the transaction if the seller fails to comply with this requirement, a seller or agent who fails to comply may be subject to civil penalties of $100.

South Dakota-

Transferors of residential property are requires to complete a disclosure statement which addresses material facts affecting the property. The list of disclosable conditions includes methane gas, asbestos, radon gas, underground storage tanks and lead-based paint. The seller is also required to disclose the results of any environmental tests performed on the property.

Texas-

Sellers of residential property have to file a disclosure statement where the seller informs the purchaser of a number of conditions known to the seller. The form includes the presence of hazardous and toxic wastes. Persons are also prohibited from leasing land that was formerly used as a municipal solid waste landfill unless notice of the closed landfill is provided to the prospective lessee as well as any use restrictions established for the property. 

Virginia-

Sellers of residential property containing from one to four dwelling unit must provide the purchaser with a disclosure statement that will reveal defects actually known to the seller. The presence of asbestos, lead-based paint, radon and underground storage tanks are among the matters that may be addressed by the form.

Washington- 

Transferors of residential property are required to provide a disclosure statement which address a number of physical conditions of the property including environmental conditions such as the presence of asbestos, lead-based paint and underground storage tanks. 

Wisconsin-

Owners of residential property containing one to four dwelling units must provide a “Real Estate Condition Report” to the prospective purchaser within ten days of execution of a sales contract which discloses defects known to the seller including the presence of asbestos, hazardous substances and underground storage tanks. A buyer may rescind the contract within two days of receipt of the report if a defect is disclosed or the report is incomplete. 

(c) Copyright 2000 Lawrence Schnapf