As of August 7, 2023, residential landlords and sellers of residential property must comply with Senate Bill 23-206 (SB 23-206) which significantly changes radon disclosure requirements in the State of Colorado. Residential landlords and sellers of residential properties should closely review their current radon disclosures to ensure compliance with the new law. A summary of the changes enacted by SB23-206 is set forth below.
OVERVIEW OF SB 23-206’S NEW RADON DISCLOSURE REQUIREMENTS
The following changes are applicable to the seller’s residential real property disclosures:
- SB 23-206, now codified at C.R.S. § 38-35.7-112, requires that every sales contract for a residential property must contain the following disclosure in clearly legible, boldface type:
THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT STRONGLY RECOMMENDS THAT ALL HOME BUYERS HAVE AN INDOOR RADON TEST PERFORMED BEFORE PURCHASING RESIDENTIAL REAL PROPERTY AND RECOMMENDS HAVING THE RADON LEVELS MITIGATED IF ELEVATED RADON CONCENTRATIONS ARE FOUND. ELEVATED RADON CONCENTRATIONS CAN BE REDUCED BY A RADON MITIGATION PROFESSIONAL.
RESIDENTIAL REAL PROPERTY MAY PRESENT EXPOSURE TO DANGEROUS LEVELS OF INDOOR RADON GAS THAT MAY PLACE THE OCCUPANTS AT RISK OF DEVELOPING RADON-INDUCED LUNG CANCER. RADON, A CLASS A HUMAN CARCINOGEN, IS THE LEADING CAUSE OF LUNG CANCER IN NONSMOKERS AND THE SECOND LEADING CAUSE OF LUNG CANCER OVERALL. THE SELLER OF RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE BUYER WITH ANY KNOWN INFORMATION ON RADON TEST RESULTS OF THE RESIDENTIAL REAL PROPERTY.
- In addition, a residential property sales contract or seller’s property disclosure must describe any knowledge the seller has of the residential real property’s radon concentrations, including the following information: (1) Whether a radon test or tests have been conducted on the property; (2) The most recent records or reports pertaining to the radon concentrations within the property; (3) A description of any radon concentrations detected or mitigation or remediation performed; and (4) Provide information regarding whether a radon mitigation system has been installed in the property.
- The seller must also provide an electronic or paper copy of the most recent brochure published by the Colorado Department of Public Health and Environment that provides advice about radon in residential real estate transactions.
- With the passage of SB 23-206, the Colorado Division of Real Estate has released four new Commission-approved forms for use by brokers. These new forms are:
- Contract to Buy and Sell – Residential
- Contract to Buy and Sell – Income-Residential
- Contract to Buy and Sell – Residential (Colorado Foreclosure Protection Act)
- Seller’s Property Disclosure – Residential
These updated forms are available on the Division’s website here.
The following changes are applicable to residential leases:
- SB 23-206, now codified at C.R.S. § 38-12-803, applies not only to the sale of residential properties but also to residential lease transactions. Under C.R.S. § 38-12-803, a landlord must provide a document to the tenant which includes the following warning statement in clearly legible, bold face type:
THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT STRONGLY RECOMMENDS THAT ALL TENANTS HAVE AN INDOOR RADON TEST PERFORMED BEFORE LEASING RESIDENTIAL REAL PROPERTY AND RECOMMENDS HAVING THE RADON LEVELS MITIGATED IF ELEVATED RADON CONCENTRATIONS ARE FOUND. ELEVATED RADON CONCENTRATIONS CAN BE REDUCED BY A RADON MITIGATION PROFESSIONAL.
RESIDENTIAL REAL PROPERTY MAY PRESENT EXPOSURE TO DANGEROUS LEVELS OF INDOOR RADON GAS THAT MAY PLACE THE OCCUPANTS AT RISK OF DEVELOPING RADON-INDUCED LUNG CANCER. RADON, A CLASS A HUMAN CARCINOGEN, IS THE LEADING CAUSE OF LUNG CANCER IN NONSMOKERS AND THE SECOND LEADING CAUSE OF LUNG CANCER OVERALL. A LANDLORD IS REQUIRED TO PROVIDE THE TENANT WITH ANY KNOWN INFORMATION ON RADON TEST RESULTS OF THE RESIDENTIAL REAL PROPERTY.
- A lease must also describe any knowledge the landlord has of the residential real property’s radon concentrations, including the following information: (1) Whether a radon test or tests have been conducted on the property; (2) The most current records and reports pertaining to radon concentrations within the property; (3) A description of any radon concentrations detected or mitigation or remediation performed; and (4) Information about any radon mitigation system, including a system description and documentation, if a radon mitigation system has been installed.
- In addition, the landlord must provide the tenant with an electronic or paper copy of the most recent brochure published by the Colorado Department of Public Health and Environment that provides advice about radon in residential real estate transactions.
- If a landlord fails to make the required disclosures, or does not make a reasonable effort to mitigate the radon within 180 days after being notified by a radon mitigation professional that the air concentration of radon is four (4) picocuries per liter or more, the tenant may void the lease agreement and vacate the property (on or after January 1, 2026, this remedy will not apply to leases that are one year or less in duration). As added by SB 23-206 now codified at C.R.S. § 38-12-503, a landlord breaches the warranty of habitability if it fails to comply with the disclosure requirements.
This alert is informational only. The presentation or use of this information does not in any manner constitute an attorney-client relationship between BHGR and the website user. While the information on this site concerns legal issues, it is not intended as legal advice or a substitute for particularized advice from your own legal counsel. If you have any questions about the impacts of SB 23-206 on your current or future residential lease agreements or the sale of residential property, BHGR’s real estate practice group is here to help.
Authors: Lorenzo Thayn, Mark Changaris, and Staff Writer Heidi Potter