Landlords Must Disclose Contaminated Indoor Air
Pursuant to a law signed by Governor Paterson in September 2008, owners of real property in New York State that have contaminated indoor air are required to provide disclosures to existing and prospective tenants and occupants in certain circumstances. The law takes effect in early December.
An owner or owner’s “agent” that receives test results that exceed state or federal indoor air quality guidelines is required to provide a “fact sheet” and notice of any related public meetings to tenants and occupants within 15 days of receipt of the test results. Upon request, the owner must also provide the actual test results and any closure letter (i.e., certification of compliance with applicable laws by a state agency.)
Additionally, the owner of a property that is subject to an engineering control to mitigate indoor air contamination (e.g., a cap on contaminated fill or soil vapor barrier) or ongoing monitoring pursuant to an ongoing remedial program, must provide a fact sheet to any prospective tenant prior to the signing of a lease and must also include such notice in the proposed lease itself. Furthermore, the lease must contain the following language in at least 12 point font in bold face on the first page:
NOTIFICATION OF TEST RESULTS THE PROPERTY HAS BEEN TESTED FOR CONTAMINATION OF INDOOR AIR: TEST RESULTS AND ADDITIONAL INFORMATION ARE AVAILABLE UPON REQUEST.
The New York State Department of Health is required to promulgate a form of “fact sheet” for owners to use in making these disclosures, which the department has yet to do. The fact sheet will have to identify, among other things, the health risks associated with exposure to the contaminants found.
The law is likely to apply to a limited number of property owners, including those that own properties that are subject to New York’s Inactive Hazardous Waste Disposal Sites Act, Brownfield Cleanup Program, Oil Spill Act, Clean Water/Clean Air Bond Act of 1996 or other enforcement by the New York State Department of Environmental Conservation.
Questions regarding this client advisory may be directed to Christopher Rizzo at (212-238-8677, firstname.lastname@example.org), Zara F. Fernandes (212-238-8827, email@example.com) or Clifford P. Case (212-238-8798, firstname.lastname@example.org).
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