Is the seller of a home legally required to install a mitigation system for elevated radon levels?

Full question:

Is the seller of a home legally required to install a mitigation system for elevated radon levels discovered upon inspection, or is simply disclosing the problem formally/in writing to the buyer allowed?

• Category: Real Property
• Subcategory: Residential Property Disclosure
• Date: 04/07/2025
• State: Maryland

Answer:

The answer will depend on the contracts and facts involved. Whether the seller made representations about such materials or had reason to know of their presence would also be a factor.

The answer will depend on the contracts and facts involved. Whether the seller made representations about such materials or had reason to know of their presence would also be a factor. Any claim you may have relating to the repairs will likely be governed by contract law. The terms of your sales contract will generally determine your rights and obligations as well as those of the seller. You should carefully review the terms of the agreement, if you have a written agreement, to determine your rights and obligations. If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:
Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered. Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity. Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach

Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered. Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of ordinary and average person.

Maryland statutes require a builder to disclose to the owner at the time of the purchase or construction whether he has:

(i) Any actual knowledge that the builder has of any hazardous or
regulated materials, including asbestos, lead-based paint, radon,
methane, underground storage tanks, licensed landfills, unlicensed
landfills, licensed rubble fills, unlicensed rubble fills, or other
environmental hazards, present on the site of the new home; or

(ii) That the builder is making no representations or warranties as to
whether there is any hazardous or regulated material on the site of the new
home.

The following are MD statutes:

§ 10-604 REAL PROP. Terms of warranty under new home warranty
security plan; exclusions; actions required of builders.

(a) Terms of warranty. — (1) Except for coverage excluded under
paragraph (2) of this subsection, a new home warranty provided under a new
home warranty security plan shall warrant at a minimum that:

(i) For 1 year, beginning on the warranty date, the new home is free
from any defects in materials and workmanship;

(ii) For 2 years, beginning on the warranty date, the new home is free
from any defect in the electrical, plumbing, heating, cooling, and
ventilating systems, except that in the case of appliances, fixtures and
items of equipment, the warranty may not exceed the length and scope of
the warranty offered by the manufacturer; and

(iii) For 5 years, beginning on the warranty date, the new home is free
from any structural defect.

(2) A new home warranty provided under a new home warranty security
plan may exclude the following:

(i) Damage to real property that is not part of the home covered by the
warranty or that is not included in the purchase price of the home;

(ii) Bodily injury or damage to personal property;

(iii) Any defect in materials supplied or work performed by anyone
other than the builder or the builder's employees, agents, or
subcontractors;

(iv) Any damage that the owner has not taken timely action to minimize
or for which the owner has failed to provide timely notice to the builder;

(v) Normal wear and tear or normal deterioration;

(vi) Insect damage, except where the builder has failed to use proper
materials or construction methods designed to prevent insect infestation;

(vii) Any loss or damage that arises while the home is being used
primarily for nonresidential purposes;

(viii) Any damage to the extent it is caused or made worse by negligence,
improper maintenance or improper operations by anyone other than the
builder or its employees, agents, or subcontractors;

(ix) Any damage to the extent it is caused or made worse by changes of
the grading of the ground by anyone other than the builder, its employees,
agents, or subcontractors; and

(x) Any loss or damage caused by acts of God.

(b) Actions required of participating builders. — A builder who
has disclosed that the builder participates in a new home warranty
security plan shall:

(1) Furnish to the owner at the time of the purchase or construction
contract:

(i) The name and phone number of the builder's new home warranty
security plan;

(ii) Details of the warranty coverage provided under the plan; and

(iii) In a form to be determined by the Division, evidence that:

1. The builder currently is a participant in good standing with a plan
that satisfies the requirements of § 10-606(a) of this
subtitle; and

2. The new home is eligible for registration or has been registered in
the builder's new home warranty security plan;

(2) Disclose to the owner at the time of the purchase or construction
contract:

(i) Any actual knowledge that the builder has of any hazardous or
regulated materials, including asbestos, lead-based paint, radon,
methane, underground storage tanks, licensed landfills, unlicensed
landfills, licensed rubble fills, unlicensed rubble fills, or other
environmental hazards, present on the site of the new home; or

(ii) That the builder is making no representations or warranties as to
whether there is any hazardous or regulated material on the site of the new
home; and

(3) Either:

(i) Provide the new home with a new home warranty if the builder
belongs to a new home warranty security plan that:

1. Requires the builder to register every new home that the builder
builds; or

2. Does not require the builder to register every new home but the
builder has decided to sell the new home with a new home warranty; or

(ii) If the builder belongs to a new home warranty security plan that
does not require the builder to register every new home and the builder
has not decided whether or not to sell the new home with a new home
warranty, give the owner the option of:

1. Purchasing the new home with the new home warranty provided
by the builder's new home warranty security plan; or

2. Waiving the right to warranty coverage by making the affirmative
waiver described in § 10-607 of this subtitle.

(c) Breach of contract. — (1) If the purchase or construction
contract provides that the new home shall be covered by a new home
warranty under a new home warranty security plan it shall constitute a
material breach of the contract if either:

(i) The builder was not a participant in good standing on the date of
the contract with a new home warranty security plan that satisfies the
requirements of § 10-606(a) of this subtitle; or

(ii) The new home has not been registered in the plan on or before the
warranty date.

(2) If there has been a material breach of the contract, the owner
shall be entitled to whatever remedies are provided by law including, but
not limited to:

(i) Rescission of the contract; and

(ii) Except in the case of a construction contract for a new home built
on the owner's property, a refund of any money paid to the builder for
the new home.

(d) Notice. — (1) The builder shall notify the new home warranty
security plan of each new home being constructed by the builder on the
earlier of the date of the purchase or construction contract or the start
of construction of the new home.

(2) Upon receipt of notification by the builder as required in
paragraph (1) of this subsection, the new home shall be eligible for
registration in the builder's new home warranty security plan.

(e) Commencement of coverage; documents provided to owner. — (1)
Upon registration of the new home in the new home warranty security plan,
warranty coverage which has not been waived by the owner shall be
provided beginning on the warranty date for the new home constructed by
the builder, provided that the builder was in good standing with the new
home warranty security plan at the time of the contract.

(2) On the warranty date, the builder shall provide the owner with
evidence, in a form approved by the Division that the new home is covered
by a new home warranty that meets the requirements of this subtitle.

(3) Within 60 days from the warranty date, the builder's new home
warranty security plan shall provide the owner with validated new home
warranty documents.

(f) Successor in title. — A new home warranty shall benefit any
successor in title to the owner who occupies the home for residential
purposes during the warranty period.

§ 10-602 REAL PROP. Disclosures required of builders.

(a) In general. — Prior to entering into a contract for sale or
construction of a new home, the builder shall disclose in writing to the
owner whether:

(1) The builder participates in a new home warranty security plan
through which:

(i) The builder must provide the owner with a new home warranty; or

(ii) The builder may provide a new home warranty to the owner at the
owner's option; or

(2) The builder does not participate in a new home warranty security
plan.

(b) Form. — The disclosure will be made on a form approved by the
Division.