HindmanSanchez

Clearing the Air on Questions Related to Radon Mitigation

Question: A condominium unit tests high for radon. The radon report shows that the radon has entered into the unit through the concrete floor; therefore, the owner asks the association to mitigate it. Is the association responsible for mitigating radon found in the unit?

Answer: Typically, the association would not be responsible for mitigating radon found inside the unit boundaries. The party responsible for removing radon depends on: (i) where the radon is found, and (ii) who is required, under the declaration, to maintain the area in which the radon is found.

Most condominium declarations require the owner to maintain the unit, which would include the air space within the unit boundaries.  If, therefore, radon is found in the airspace of the unit, the owner would be responsible for mitigating it.  On the other hand, if radon is found inside the common elements such as the crawlspace, for example, the association would be required to mitigate the radon if it is in excess of acceptable levels.

Often, however, associations are faced with requests to mitigate radon inside the unit because the radon originates from the exterior of the unit. The request is usually based on the assumption that any interior “damage” caused by an exterior source is the association’s responsibility. This is not the case.

Radon comes from the natural breakdown of uranium found in nearly all soils, and typically moves up through the ground and into any unit through cracks in the foundation or concrete slab. It is a naturally occurring element that can seep into a unit. The mere fact that water or air contaminated with radon may have become trapped in the unit does not mean the association is responsible for mitigating it. The association cannot prevent the natural breakdown of radon in the soil, nor would it be liable for radon seeping into the unit because of this breakdown.

The association’s responsibility for mitigating radon extends to the common elements only, unless the declaration states otherwise, or the association’s own negligence causes the need for radon mitigation.

Question: Does the owner have a right to modify the common elements in order to install a radon mitigation system? 

Answer: No, not without prior approval from the association.

Mitigating radon from the unit will require some form of radon mitigation system, which will likely require modification to the common elements of the condominium building (e.g., construction of ventilation ducts through the common elements and to the exterior of the condominium building). Most condominium declarations prohibit any modification to the common elements without first obtaining approval from the association.  To the extent the owner’s radon mitigation plan would affect or require modification of the common elements, the association should require owners to submit plans of the proposed mitigation system for its review.

Because modification to the common elements could cause additional maintenance, risk, and liability for the association, the board of directors may condition its approval of the radon mitigation system on a variety of criteria.  Some sample criteria are as follows:

  • Requiring a professional radon mitigation contractor to perform the work in conformity with applicable federal and state guidelines;
  • Prohibiting roof penetrations (where there is an alternative);
  • Requiring the unit owner to be responsible for the maintenance, repair, and replacement of the radon mitigation system;
  • Requiring camouflaging of the vent pipe so as to blend in with the exterior materials of the building.

Question: Now that the board is on notice that at least one unit has tested high for radon gas, does the board have a duty to disclose this information to the rest of the community?

Answer:  Although the owner would have the duty to disclose the presence of radon to potential purchasers, the association does not have the duty to notify the membership of the presence of radon in a unit.  That being said, more than likely, the information will spread anyway. Therefore, it may be prudent for the association to control this flow of information in order to: (i) prevent the dissemination of incorrect information, (ii) minimize alarm, and (iii) remind owners of their duties with respect to radon mitigation from inside the unit.

To that end, the board may want to send a community-wide letter providing the following information:

  • It has come to the attention of the board that a unit has tested high for radon;
  • Explain what radon is and that its presence is not necessarily unusual or cause for alarm;
  • Recommend that concerned owners first educate themselves about radon before taking additional steps;
  • Provide resources such as the following link to radon publications of the United States Environmental Protection Agency (EPA);
  • Remind owners that it is their responsibility to maintain their unit, and that any costs for testing or remediation of radon will be at their expense; and
  • Remind them that prior written association approval must be obtained before making any modifications to the common elements that are necessary to remediate the radon.

Although generally the owner is responsible for mitigating radon from the unit, and the association is responsible for mitigating radon from the common elements, obligations for radon mitigation are both document-specific and fact-specific.  Please contact our office at: 303-432-9999 if you are uncertain of the association’s responsibilities.

Author
Melissa M. Garcia
http://www.hindmansanchez.com/resources/newsletter/clearing-air-questions-related-radon-mitigation/

Lakewood, Colorado

555 Zang Street, Suite 100

Lakewood, Colorado 80228-1011

Phone: (303) 432-9999

Toll Free Number: 1(800) 809-5242

Loveland, Colorado

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Loveland, Colorado 80538

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Colorado Springs, Colorado

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Colorado Springs, Colorado 80920

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