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Radon and Real Estate

Lancaster County, Pennsylvania sits atop a certain rock formation called the Reading Prong, which frequently results in the contamination of houses and buildings by radon gas. Radon is an odorless and colorless gas, which seeps into buildings normally through the basement, and is known to increase a person’s risk of incurring lung cancer. The Federal Environmental Protection Agency has set a presumed safe level for radon at 4 picocuries per liter of air, in any space regularly occupied by human beings.

To this date, this writer has found no reported court opinions holding that the existence or discovery of radon gas in a rented property, by itself, would constitute a breach of the implied warranty of habitability, thereby justifying the tenant either to demand the landlord to remediate the situation, and withhold rent money while remediation efforts are underway, or otherwise terminate the lease. However, it is quite likely that evidence of a significantly high radon reading would constitute a serious enough risk to human health and even life that it is likely that one day an appeals court will make such a ruling which will be binding on the entire state of Pennsylvania.

In the meantime, a Judge of the Chester County Court of Common Pleas voided an agreement to sell a residential property in 1992 based upon radon testing at the level of 77.1 picocuries per liter, which fact became known to the prospective buyers of the real estate before settlement. When the buyers refused to purchase the property, the sellers refused to refund their deposit money, which stimulated the lawsuit. The Judge ruled that the buyers had the right to terminate the purchase agreement and to receive a refund of their deposit. He said: “in terms of the habitability of a house, I consider the presence of radon to be the equivalent of those defects”, referring to termite infestation and the presence of formaldehyde insulation, which were previously found by the Pennsylvania Superior Court decision to be dangerous conditions of real estate rising to the level of a breach of the implied warranty of habitability. If it was clear in a real estate sale contract that the presence of radon gas is a dangerous defect in a home, and there is a duty upon the homeowner and their real estate agents to disclose the existence of that defect if they are aware of it, then by analogy, the failure to disclose a known radon problem to a prospective tenant of a rental property would constitute a material omission, and could lead to a nullification of a lease, absent successful remediation efforts.

There are relatively inexpensive methods to test for the presence of radon, which we highly recommend to all prospective home purchasers and/or renters as well as home sellers and landlords. This information, including test kits, which cost approximately $15 each for the short-term test (3-7 days) can be obtained via the internet at, for example at RadonZone.com, and may be available at home improvement stores such as Lowe’s or Home Depot.