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The Importance of PFOS Testing in Real Estate Transactions

Jun 27, 2024 | Real Estate

Real Estate Transactions

In the realm of real estate transactions, environmental inspections or due diligence is a critical aspect that cannot be overlooked. Although in this competitive real estate market, buyers often (and foolishly) waive their inspection contingency rights, one such right in New Jersey that cannot be waived as it is mandated by law, is the testing of the well water. This is because the Private Well Testing Act (PWTA) requires that the Sellers do the testing.  As such, one such concern that has recently come to the forefront is the presence of Perfluorooctanesulfonic acid (PFOS), a type of per- and polyfluoroalkyl substance (PFAS).

What is PFOS?

PFOS is a man-made chemical that has been used in various industrial and consumer products due to its water and grease resistance. However, it has been found to persist in the environment and in the human body, leading to potential health risks.

PFOS Regulations in New Jersey

In New Jersey, the Department of Environmental Protection (NJDEP) has established stringent regulations concerning PFOS. As of December 1, 2021, private well owners are required to test for PFOS under the state’s PWTA. This act mandates testing during real estate transactions for private residences and periodic testing for rental properties.

The Role of PFOS Testing in Real Estate Transactions

During a real estate transaction, the seller is required to disclose any known environmental hazards. With the new regulations, testing for PFOS has become a part of this disclosure process. If PFOS is detected, it can impact the value of the property and the willingness of a buyer to proceed with the transaction.

While the PWTA requires testing, it does not mandate treatment of private wells. The installation of treatment systems is left at the discretion of the owner. However, if these contaminants are discharged onto the lands or waters of the State, they must be remediated using a Licensed Site Remediation Professional (LSRP), even if the contaminant is not classified as a hazardous substance.  

Therefore, in most cases, if you are a buyer, you can request to have the seller remediate the PFOS prior to and as a condition to your home closing in New Jersey.  Although a seller is free to refuse to do so, a buyer, represented by a New Jersey real estate lawyer for a New Jersey home closing will be able to retain their right to cancel if such a response is unacceptable.  

Conclusion

The inclusion of PFOS testing in real estate transactions in New Jersey underscores the growing awareness and concern about the presence of these chemicals in our environment. As we continue to learn more about the potential health and environmental impacts of PFOS, it is likely that regulations will continue to evolve. For those involved in real estate transactions in New Jersey, staying informed about these changes is crucial to ensure compliance and protect all parties involved.

Remember, when it comes to real estate transactions, environmental inspections are not just about ticking boxes – it’s about having an understanding what these possible contaminants are, how they can be remedied, and ultimately, safeguarding the health and wellbeing of our communities.

Be sure to always consult a New Jersey real estate attorney that will advise you on your rights if you are buying or selling a home. If you wish to learn more, please contact Abdou Law Offices, LLC at (732) 540-8840.

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