Owners required to disclose air contamination test results

December 3, 2008 will usher in a whole new landscape in New York, requiring property owners to notify lessees and prospective lessees of the results of tests for indoor air contamination. Landlords have long benefited from a system that required property owners to be informed of environmental harms posed by their property, while no such requirement existed for tenants. ECL 27-2405, the new law, closes the information gap that has existed between property owners and tenants, by providing a mechanism to inform tenants about the quality of the air they breathe. The new law applies to both residential and commercial tenancies. If indoor air quality tests have been performed and if those tests results exceed OSHA or New York Dept. of Health guidelines, a landlord will be required to give notice of those results to their tenants within 15 days of receiving the test results. A landlord will also be required to include notice of that testing in any rental agreement or lease. OSHA or the Dept. of Health must prepare a fact sheet identifying the contaminant of concern, the established detection levels, the health risks associated with the compound and a means for the tenant to obtain additional information about the contaminant. Failure to comply with the notice requirement will subject the offending landlord to fines of up to $500 for each violation and $500 for each day they remain in violation. Interestingly, the tenant notification law is only triggered if an "issuer" has provided the landlord with test result exceedances. Under the statute only the following four categories include an issuer; they are as follows: a) an owner or person responsible for contamination at a site who is subject to a NYS DEC order and required to develop a remedial program; b) a participant, an owner or person responsible at the time of disposal or contamination, such as a PRP; c) a municipality, which includes a local public authority, county city, school district, etc., and, d) NYS DEC. While these categories of issuer delineate most situations where air sampling results are likely to be produced, there is a striking gap in this new air contamination protection law. Oddly enough, if the good samaritan landlord "voluntarily" undertakes to perform testing on his own, this law does not require him to provide those test results to his tenants. As a consequence, the landlord who undertakes air sampling in response to a tenant complaint is not covered by this law, and is not obligated to provide notice of any exceedances to his tenants or prospective tenants, an improbable, but possible result. New York will not only be the first state to impose these additional obligations on property owners and landlords, but it is the first state to arm tenants with information that they did not have previous to this law. Although indoor air quality can have far ranging effects on health, other than OSHA workplace standards and state imposed smoking bans, there has been little new regulation in this area. The addition of this new air contamination notification law places New York at the forefront of this critical environmental issue. Eileen Millett is a director in the Real Property & Environmental Dept. of Gibbons, P.C., New York, N.Y. and Newark, N.J.