An issue that comes up from time to time for us is the question of who is responsible for radon mitigation in the event radon is detected in a condominium community. The short answer is, “It depends.”
This firm believes that the detection of radon is not a casualty event governed by § 11-114 of the Maryland Condominium Act, Title 11 of the Real Property Article of the Annotated Code of Maryland (the “Condominium Act”), a provision relative to insurance property and casualty losses.
Rather, this firm believes that radon detection and the remediation of radon is a maintenance issue governed by § 11-108.1 of the Condominium Act, which generally states that except as otherwise provided by the declaration or bylaws of the condominium and subject to § 11-114, the council of unit owners is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of his unit. Therefore, unless the declaration or bylaws state otherwise, we are of the opinion that the council is responsible for any radon found present in the common elements and a unit owner is responsible for radon detected in a unit.
The majority of commentators agree with the position taken by this firm as outlined above—that generally, the council of unit owners is obligated to remediate radon found in the common elements whereas the unit owner is responsible with respect to his unit. This majority view is partially based on the fact that radon is a naturally occurring gas that can be trapped in the indoor air of a home. As stated by the United States Environmental Protection Agency (“EPA”), “radon is a naturally occurring radioactive gas released in rock, soil and water that can build up to dangerous levels inside any home; this means new and old homes, well sealed and drafty homes, and homes with or without a basement. Radon gas is odorless and invisible and the only way to know if your home has a radon problem is to test for it… Homes with high levels of radon have been found in every state. In fact, radon levels can vary greatly from home to home--even levels next door can be very different.” United States Environmental Protection Agency, “Basic Radon Facts,” EPA 402/F-16/002, July 2016. Because all air comes from the exterior to the interior or from the ground up to a unit, certainly the radon travels through the common areas in most instances to a condominium unit. Nonetheless, an owner would have a hard time proving that the origination of the radon gas is from the common areas rather than from nature itself. Further, we believe that a unit owner would have a hard time proving that the presence of radon is a casualty event rather than a maintenance event. In fact, because the presence of radon is not a sudden event or the result of an accident, homeowners insurance policies normally do not pay for damages or for mitigation costs. In fact, most insurance policies have specific exclusions for radon.
Nonetheless, even if the council of unit owners believes that radon remediation is the responsibility of the council with respect to common elements and for unit owners in their own units, we recommend that the council adopt a policy or “rule and regulation” outlining how the council will respond to radon found in the condominium. The rule and regulation could include the following:
1. The council of unit owners (the “council”) is responsible for mitigation of radon in any common elements of the condominium.
2. The unit owner is responsible for mitigation of radon in his/her unit.
3. The council has no duty to conduct any radon testing in the common elements but the council’s board of directors has the right to conduct such testing, provided that such testing is announced at a meeting of the council prior to such testing.
4. The council has no duty to mitigate any radon levels in common elements between 2.0 and 4.0 pCi/L, at which levels the EPA strongly recommends consideration of radon mitigation, but shall have a duty to mitigate for any radon levels found in common elements to be in excess of 4.0 pCi/L, which is the EPA’s maximum acceptable level of radon, if such common elements are located indoors. United States Environmental Protection Agency, “Home Buyer’s Guide to Radon,” EPA 402/K-13/002, March 2018 (revised).
5. If notified about a level of radon within the condominium in excess of the EPA’s maximum acceptable level, the council has the right, but not the obligation, to inform other unit owners about the findings.
6. For any unit owner who requests an architectural modification/alteration request in order to address radon levels in excess of the maximum acceptable level according to the EPA, the council will be liberal in its grant of the modification request even if such modification/alteration request requires modifications to the common elements; provided, however, in such case the unit owner shall be liable for all the costs thereof and shall be required to execute an indemnification in favor of the council for any and all damages resulting from such modifications/alterations necessary to remediate the radon.
Any adoption of rules and regulations concerning radon must follow the requirements of your declaration and bylaws, as well as the requirements of § 11-111 of the Condominium Act.
The foregoing article is not intended to provide specific legal advice. Should you have any questions or concerns regarding a particular radon issue within your condominium community, please feel free to contact us for assistance.