In December 2008, a new law in New York will go into effect requiring property owners and landlords to disclose the results of environmental testing to current and prospective tenants. While New York is the first state to enact legislation of this type, we wanted to pass along this interesting development and share some possible ramifications with you.
While the New York law seems to be focused on indoor air contamination and vapor intrusion, "test results" is broadly defined to include any tests conducted on indoor air, outdoor air, groundwater and soils beneath homes and buildings. Owners and landlords of both residential and commercial properties must disclose test results that exceed federal or state air guidelines. Furthermore, certain properties in New York for which an engineering control is in place to address contamination and properties that are subject to ongoing monitoring under a remediation program must provide written notice of the testing in bold on the first page of any lease agreement. The New York statute requires owners of such properties or their agents to give tenants a fact sheet and timely notice of any public meetings where the test results will be discussed, or face monetary fines.
We do not believe that any other state statute or regulation presently requires information of this type to be disclosed to tenants. It would be surprising, however, if other states do not at least begin to consider similar legislation or regulations now that New York has taken this highly-publicized step.
Because the legislation is novel and has not yet gone into effect, there are still several unanswered questions: Does every new owner of a building have to disclose the results of a Phase I and/or Phase II inspection to current tenants? New tenants? Does the law apply to previous testing done before a new owner gains possession? How often must a building be retested? Is a building owner responsible for unknown substances or areas that are not tested at first but later found to exceed a standard?
Our environmental and real estate groups are keeping a close eye on this legislative development. In the event you have any questions about this or any other similar pending legislation in your state or local jurisdiction, please check with your local Bracewell & Giuliani office or any of the attorneys listed below.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.