Inspecting a septic system that has not been used for several months or longer

By James L. Goldsmith, Esq.

The Hotline call that inspired this article was from a buyer's agent who felt it unfair that the buyer had to pay for a "special" inspection of the on-site system required by its 5-month dormancy. The buyer agent felt that the special testing fell within the seller's contractual obligation to "provide access to" the on-lot system. Indeed, the on-lot sewage inspection contingency does provide "If and as required by the inspection company, seller, at seller's expense, will locate, provide access to, and empty the individual on-lot sewage disposal system." It was the buyer's thinking that the special load testing necessary as a result of the septic system having been shut down for so many months was required to provide "access to" the standard type of testing that was less expensive and would have been the sole testing necessary had the system not been sitting dormant.

While I laud the efforts of the buyer agent and while I appreciate her logic, my opinion is that buyer is stuck with the cost of all testing, regardless of whether it was necessitated by a lengthy period of non-use. When a court is called upon to interpret the language of a contract, it first assigns conventional definitions to the words used. To "provide access" means to enable an approach, provide admittance or entrance. In other words, open the tank cover. Courts will also compare and contrast other words in the provision under scrutiny. Here, the seller is required to "locate" in addition to providing "access" to the system. Together, the language more than strongly suggests that the seller will find the location on the ground, remove the soil or other substance, and open the tank so as to provide admittance to the tank. I think that a strong argument can be made that the seller would also have to excavate around any other portion of the system if necessary for the buyer's testing company to examine it. When it comes to the type of testing required, however, that expense falls squarely on the shoulders of the buyer.

Buyers who anticipate abnormal testing expenses due to system abandonment may seek to impose costs on the seller by altering the language of the inspection contingency. There is no reason why the parties can't agree that the costs of testing will be borne by seller or shared in some way not contemplated by the pre-printed language of our standard agreement. As always, when drafting amendments, exercise great care as any awkward or poorly drafted language will be construed against the draftor.

Copyright © James L. Goldsmith, Esquire, CALDWELL & KEARNS, P.C., 2014

All Rights Reserved

Jim Goldsmith is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees. He and his firm represent and defend real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. Jim also defends REALTORS® in disciplinary hearings conducted by the Real Estate Commission. He routinely counsels employers on employee relations issues and is one of the voices of the PAR Legal Hotline. He may be reached at www.realcompliance.com.