Atty. Rich Kallman
In Massachusetts, the law governing septic system installation and maintenance is known as Title V. Whenever a homeowner is going to be selling his home, he will need to get what is called a "Title V inspection" done.
In order to close on a property in Massachusetts, you will need to have a passing Title V.
If a Title V test reveals that the septic system has failed, a seller has two options in order to get to the closing table. He can either replace the system prior to closing, or he can put an appropriate amount of money in escrow guaranteeing the system will be fixed. A third option could be to get the buyer to pay for the septic system, although this is less likely to occur. A buyer who agrees to assume the cost of replacing the septic system will factor the cost of replacement into his bid price for the property.
Who is responsible when the septic system fails and needs to be replaced, the buyer or the seller?The owner or operator of the system is the legally responsible party required to upgrade a failing system. Prior to transfer of the property, this is typically the seller. Often, the buyer and seller work out the financial issues as part of the sale of the property. Title V does not require that a system be in passing condition prior to the sale, but most lenders will not issue a mortgage until the failing system is upgraded or funds to perform the upgrade are escrowed.
How long is an inspection valid for?Inspections required in connection with a property transfer generally are good for two years. If a property is sold more than once in the two-year period, the single inspection is valid for all transfers.
How do I have my system inspected if I am selling the property in the middle of the winter?If weather conditions prevent an inspection before a sale, Title V allows the inspection to be done up to six months afterwards, provided that the seller notifies the buyer in writing of the need to complete the inspection. (However, no lender will make a loan secured by a property if there is no information on the status of the septic system so this scenario is unlikely to occur).
I'm selling my home and the septic system has failed the Title V inspection. If I decide not to sell as a result, am I still obligated to repair the system?Yes. Once an official inspection is performed on a system, the results must be submitted to the Board of Health within 30 days. Whether or not the homeowner decides to sell, a failed system typically must be upgraded within two years, unless the local Board of Health or Massachusetts Department of Environmental Protection (MassDEP) authorizes an alternative schedule.
For example, the Board of Health may require a shorter timeline in the case of an imminent health hazard, or under certain circumstances may allow use of the system for up to five years under an enforceable schedule for repair, replacement, or connection to a sewer or shared system.
Who is responsible if a system passes inspection before a property transfer, but fails soon after that?The system inspector is responsible for determining that the system meets or fails Title V standards as of the date of the inspection. The inspection is not a guarantee that the system will continue to function adequately and is not a guarantee that it will not fail at a later date. If a system fails shortly after a sale, the buyer may have legal recourse, but it may be very hard to prove that the system was in failure at the time of the inspection. If an improper inspection was done, MassDEP can take enforcement against an inspector, but property owners must pursue claims against the inspector in court.
What is a voluntary inspection?Even if an inspection is not required, a system owner may have a voluntary assessment of the condition and operability of the system performed. Results of voluntary inspections do not have to be submitted to the Board of Health of MassDEP and do not trigger the repair requirement in the event of a failure. For many homeowners, a voluntary inspection can be helpful as it will let homeowners know that they have to budget for replacement when they actually decide to sell their house.
Are there special inspection requirements for condominiums?Yes. Condominiums with five or more units must be inspected once every three years. Those with four or fewer units must be inspected every three years, or within two years prior to the sale of one of the units.
The condominium association is responsible for the inspection, maintenance, and upgrade of the system or systems serving the units, unless the governing documents of the association provide otherwise.
Legal Insider Content Contributed by Attorney Richard M. Kallman. Contact Atty. Kallman at 978-356-2934 or rich@kallmanlaw.com.
