Note: Last month in Part 1, I covered the basic disclosure requirements of the Minnesota Radon Awareness Act. This month, I’ll discuss your duties as a real estate licensee, when radon disclosures are required—and not required—and the liabilities for failing to properly disclose.
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, 1014.)
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.
Print a “disclosure package” for all your single family listings
To make the seller’s required disclosures efficient, staple together all of the above required documents, and leave those packets in the property where prospective buyers easily find them. You could also include them as supplementary pages to Multiple Listing Service property data.
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:
- 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 https://www.revisor.mn.gov/st2005/515B/3-104.html]
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.
According the Minnesota Radon Awareness Act:
- 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.
- 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.
- 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.
Free online course: “Understanding the Minnesota Radon Awareness Act.”
You may take a free 1-hour online CE course 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 free CE course is highly recommended.
To enroll, go to MNRealtor.com, select our Education page, and click on “Online Courses” to go to Continuing Ed Express. You’ll find the course on their Minnesota CE course list page. You may enroll now for free, and take the course any time later.
The Minnesota Association of REALTORS® is the largest professional trade association in the state with more than 17,000 members who are active in all aspects of the real estate industry.