Lawyers are often called upon to be the interface between social policy and reality. The recent enactment of Title V is no exception. In the older cities and towns of eastern Middlesex County, Title V may not have much of an impact on the average sale of a single family home. However, in the towns where there is no town sewer and where there are a large number of newer developments, many practitioners have developed an extensive working knowledge of the intricacies of Title V.
Title V takes its name from Title V of the state environmental code contained in 310 C.M.R. 15.000. Title V requires that a system inspection must be performed at the time of transfer of title. It may be conducted within two years prior to the time of transfer, or if the weather conditions preclude the inspection at the time of transfer, may be completed as soon as weather permits, but in no event later than six months after the transfer. A copy of the inspection report should be submitted to the buyer or other person acquiring title to the facility served by the system. If pumping records are available, the inspection may be conducted up to three years before the time of transfer. An event that constitutes a "transfer" within the terms of the regulations includes foreclosure, inheritance by will or intestacy, a transfer from parents to children, a taking by either the federal, state or municipal governments and the levy of executions that result in a conveyance of the property.
It is worth noting that the granting of a mortgage is not a transfer that triggers the requirement of an inspection. However, if there were to be a foreclosure by the lender or a deed in lieu of foreclosure to the lender, the inspection requirement would be triggered at that time.
An inspection must be performed by an approved inspector. The Department of Environmental Protection and the local Department of Health or its equivalent approve inspectors. It is worth checking with the local Board of Health to determine that the inspector that is about to be used is recognized by that Board of Health which will then be called upon to accept his inspection report. Mortgage lenders are dealing with the new Title V regulations in a manner that most practitioners would expect - they are requiring a new form. Most of the new forms are similar to the smoke detector certification form that has been widely used for many years. The form includes a statement signed by the buyer and the seller that the property is either part of a municipal sewer system or has a working septic system that has been inspected as required. A copy of the inspection report filed with the municipality is the best method of determining that the system has been inspected as required and that the report has been filed with the licensing authority. A water bill may not be sufficient to determine that the property is connected to a municipal sewer system because in most municipalities the bill only reflects the amount of water delivered to a home, and not the amount of effluent leaving the home.
The practitioner is most likely to be forced to come to grips with the provisions of Title V in the context of the purchase or sale of a client's home. Some planning can minimize the disruption that a failed inspection may cause the buyers and sellers of a home. Many Boards of Realtors are suggesting to their members that a listing should not be taken on a property until that property has been inspected and received a passing report, which in turn has been filed with the municipality. This is good advise. I have seen mandated repairs to systems cost as little as $3,500 or cost as much as $35,000. If the cost of repairs are factored into the sale price before the property is listed, a Seller may be able to recover more of cost, rather than if the problem is discovered after the Purchase and Sale Agreement is signed.
It is also much simpler to remedy a failed system when only the current owners are involved. When you add buyers to the mix, it becomes much more difficult to satisfactorily arrange for repairs, and still meet a closing deadline. This is especially true if both parties are selling a home and buying a home, and one of the transactions is derailed by a failed inspection report, it can cause complications and heartaches for many families. If a client is uncertain as to whether a septic system will meet the requirements of Title V, he may wish to ask his septic servicer to render an informal opinion the next time the system is pumped.
Another common problem that can be discovered during the increased scrutiny that Title V is causing to be given to septic systems, is the encroachment of a system upon an adjoining lot. A purchaser's attorney may wish to include language in the Purchase and Sale Agreement, specifically requiring that the buyer's obligation to perform is conditioned upon the entire septic system and leech field being located on the subject premises. If the system is not entirely located upon the subject premises, it may be necessary to work out mutual easements with the affected neighbors.
Title V, like much environmental legislation, is in a constant state of flux. The harsh affects of it have been mitigated somewhat by the most recent amendments to the regulations. The much discussed funding to help private homeowners mitigate the expensive and harsh realities of the regulations may soon come to fruition.
Perhaps the biggest bright spot of the new Title V regulations, is the reported cooperative attitudes and efforts exhibited by the Department of Environmental Protection officials involved with the program. Their availability and helpfulness should be commended, and will make Title V easier to live with for property owners and buyers and their attorneys.
Alan D. Humbert has been practicing law since 1982 and has an office in Watertown Massachusetts. He represents a number of mortgage lenders in addition to private parties purchasing and selling real estate.
© 1996 - 2005 Alan D. Humbert. All rights reserved.