New Radon Testing Requirements for Residential Landlords

By: Rudman Winchell Attorney Daniel D. Burke

Radon occurs naturally in Maine soil and bedrock and can
slowly seep into houses and structures from the ground through foundation
cracks and even basement drains. It can pose a serious health risk to the inhabitants of a structure and has been linked
to cases of lung cancer.

In light of this, testing for the presence of radon gas has been mandated for landlords. These tests
apply only to residential properties held for lease or tenancies at will. They does not apply to short term rentals,
where leases call for an occupancy of 100 days or less and have no renewal provisions.

The requirement is contained in Section 6030-D of Title 14 of the Maine Revised Statutes. By March
1, 2014, landlords must have the air in their buildings tested for the presence
of radon gas. Unless a mitigation system is installed, a landlord will also be responsible for re-testing the building
every ten (10) years if a tenant so requests.

For newly constructed residential buildings, a landlord must
test the air inside that building within twelve (12) months of occupancy by a tenant.

Once the testing is complete and results have been obtained,
a landlord must provide written notice to existing tenants within thirty (30)
days or, with respect to prospective tenants, before that tenant enters into a
lease or pays a security deposit. A landlord must also report the test results to the Maine Department of Health
and Human Services with thirty (30) days of their receipt.

If the test results indicate radon levels of 4.0 picocuries or greater, the law allows either the landlord or tenant to terminate the lease
with a minimum of thirty (30) days written notice. If a lease is terminated because of the
results of radon testing, landlords may not retain any portion of a security deposit.

Failure to comply with this requirement is considered a civil violation. A fine of up to $250.00
may be assessed for each violation. The failure to give written notice, or the falsification thereof, is considered a
breach of the implied warranty of habitability and is grounds for the tenant to
terminate the lease agreement.

If you have questions about this new requirement, it is best
to seek advice from an attorney with experience in Maine landlord/tenant
law. More information can also be obtained from the Maine Department of Health and Human Services.