What is radon?  Radon is a radioactive gas that comes from the natural decay and breakdown of uranium that is found in nearly all soils.  The United States Environmental Protection Agency offers a substantial amount of information relating to radon, its health risks, and radon mitigation here: http://www.epa.gov/radon/index.html.

Who is responsible for mitigating radon when it is found to be at unsafe levels[1] in a community association?  Of course, it depends.  Although radon testing recently has become fairly commonplace in real estate transactions, case law relating to radon mitigation in community associations has not yet percolated from the courts. 

For condominiums and planned communities, owners are often required to maintain the interiors of their homes.  This generally includes the interior air space.  For example, governing documents for condominium associations often define a unit by describing a unit’s boundaries and noting that the unit includes the air space encompassed by those boundaries. Therefore, there is a strong argument to be made that, if an owner wants to mitigate radon located within the boundaries of an owner’s unit, an owner is responsible for procuring and installing a radon mitigation system. 

Despite the general comments above, it’s important to note that an association’s governing documents or the specific circumstances surrounding the determination that radon is present at unsafe levels could alter the determination of responsibility for implementing a radon mitigation system.   Rather than allowing for potential uncertainties to play out and in light of increased radon testing outside of the sales context, it’s likely best for associations to address the issue proactively. 

The approach will depend on each association’s specific set of circumstances; however, the best practice will likely include adopting an association policy regarding radon mitigation.  On that note, the following are some general guidelines to keep in mind when considering a radon mitigation policy for your association.   

First, associations should clarify responsibility for radon mitigation within the community.  This provides owners with advance notice of their obligations so they can plan accordingly if they would like to test their home for radon or otherwise plan to sell their homes in the future. 

Second, if owners are determined to be responsible for radon mitigation, associations should develop a process and guidelines for handling exterior or common element modification requests to implement radon mitigation systems.  Given the safety issues involved, associations should treat an owner’s request to install a radon mitigation system differently than a request to, for example, change paint color.  The policy details should note the association’s reasonable requirements relating to the installation of radon mitigation systems, and if those requirements are met, the association should approve the exterior modification proposal.  Please feel free to contact us if you have any questions or would like to discuss the details of a policy that fits your community.