Bill S7070-2013

Relates to disclosing water impoundment structures in property condition disclosure statements

Relates to disclosing water impoundment structures in property condition disclosure statements.

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  • Apr 23, 2014: REFERRED TO ENVIRONMENTAL CONSERVATION

Memo

BILL NUMBER:S7070

TITLE OF BILL: An act to amend the environmental conservation law and the real property law, in relation to property condition disclosure statements

Purpose:

To provide notice to prospective purchasers of residential real property of the presence of a traditional dam or other impoundment structure which may subject them to liability under environmental conservation law section 15-0507.

Summary of Specific Provisions:

Section 1: Amends environmental conservation law to authorize the commissioner to promulgate regulations relating to disclosure in connection with hazardous dams.

Section 2: Amends the property disclosure statement as described in the Real Property law.

Section 3: This bill shall take effect immediately.

Existing Law:

Environmental conservation law section 15-0507 imposes liability on the owners of dams for their safe operation and continued monitoring. Section 462 of the Real property law lists the requirements of the mandatory disclosure form that any seller of residential real property must provide to prospective purchasers. Section 462 does not require disclosure of the presence of such structures.

Justification:

Environmental conservation law § 15-0507, as interpreted by an administrative law judge of the Department of Environmental Conservation in 2014, imposes structural and functional liability on any person determined to be an "owner" of land underneath or abutting a dam, regardless of the owner's knowledge or intent that they take possession of the dam structure. Such a situation was the source of extensive litigation in New York State. There are over 5,600 dams in New York State's dam inventory, 389 of which are classified as "Hazard code C," meaning that they pose a risk to human safety downstream. The owners of the structures are liable for their safe operation. This bill aims to protect prospective land purchasers from unknowingly purchasing land which imposes ECL Section 15-0507 liability upon them.

Fiscal Implications:

None.

Legislative History:

New Bill.

Effective Date:

Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7070 IN SENATE April 23, 2014 ___________
Introduced by Sen. MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law and the real property law, in relation to property condition disclosure statements THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 1 of section 15-0507 of the environmental conservation law, as amended by chapter 364 of the laws of 1999, is amended to read as follows: 1. Any owner of a dam or other structure which impounds waters shall at all times operate and maintain said structure and all appurtenant structures in a safe condition. As used in this section and section 71-1109 of this chapter, "owner" means any person or local public corpo- ration who owns, erects, reconstructs, repairs, maintains or uses a dam or other structure which impounds waters. The commissioner may promul- gate regulations requiring any owner to prepare and implement a safety program for such dam or structure as necessary to safeguard life, prop- erty or natural resources. Regulations governing the safety program may include requirements for inspections, monitoring, maintenance and opera- tion, emergency action planning, financial security, DISCLOSURES PURSU- ANT TO SECTION FOUR HUNDRED SIXTY-TWO OF THE REAL PROPERTY LAW, record- keeping and reporting or any other requirement the commissioner deems necessary to safeguard life, property or natural resources. Such requirement shall only apply to those dams or other structures that impound waters which pose, in the event of failure, a threat of personal injury, substantial property damage or substantial natural resource damage. S 2. Subdivision 2 of section 462 of the real property law, as added by chapter 456 of the laws of 2001, is amended to read as follows: 2. The following shall be the disclosure form: PROPERTY CONDITION DISCLOSURE STATEMENT NAME OF SELLER OR SELLERS:
PROPERTY ADDRESS: THE PROPERTY CONDITION DISCLOSURE ACT REQUIRES THE SELLER OF RESIDEN- TIAL REAL PROPERTY TO CAUSE THIS DISCLOSURE STATEMENT OR A COPY THEREOF TO BE DELIVERED TO A BUYER OR BUYER'S AGENT PRIOR TO THE SIGNING BY THE BUYER OF A BINDING CONTRACT OF SALE. PURPOSE OF STATEMENT: THIS IS A STATEMENT OF CERTAIN CONDITIONS AND INFORMATION CONCERNING THE PROPERTY KNOWN TO THE SELLER. THIS DISCLOSURE STATEMENT IS NOT A WARRANTY OF ANY KIND BY THE SELLER OR BY ANY AGENT REPRESENTING THE SELLER IN THIS TRANSACTION. IT IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR TESTS AND THE BUYER IS ENCOURAGED TO OBTAIN HIS OR HER OWN INDEPENDENT PROFESSIONAL INSPECTIONS AND ENVIRONMENTAL TESTS AND ALSO IS ENCOURAGED TO CHECK PUBLIC RECORDS PERTAINING TO THE PROPERTY. A KNOWINGLY FALSE OR INCOMPLETE STATEMENT BY THE SELLER ON THIS FORM MAY SUBJECT THE SELLER TO CLAIMS BY THE BUYER PRIOR TO OR AFTER THE TRANSFER OF TITLE. IN THE EVENT A SELLER FAILS TO PERFORM THE DUTY PRESCRIBED IN THIS ARTICLE TO DELIVER A DISCLOSURE STATEMENT PRIOR TO THE SIGNING BY THE BUYER OF A BINDING CONTRACT OF SALE, THE BUYER SHALL RECEIVE UPON THE TRANSFER OF TITLE A CREDIT OF FIVE HUNDRED DOLLARS AGAINST THE AGREED UPON PURCHASE PRICE OF THE RESIDENTIAL REAL PROPERTY. "RESIDENTIAL REAL PROPERTY" MEANS REAL PROPERTY IMPROVED BY A ONE TO FOUR FAMILY DWELLING USED OR OCCUPIED, OR INTENDED TO BE USED OR OCCU- PIED, WHOLLY OR PARTLY, AS THE HOME OR RESIDENCE OF ONE OR MORE PERSONS, BUT SHALL NOT REFER TO (A) UNIMPROVED REAL PROPERTY UPON WHICH SUCH DWELLINGS ARE TO BE CONSTRUCTED OR (B) CONDOMINIUM UNITS OR COOPERATIVE APARTMENTS OR (C) PROPERTY ON A HOMEOWNERS' ASSOCIATION THAT IS NOT OWNED IN FEE SIMPLE BY THE SELLER. INSTRUCTIONS TO THE SELLER: (a) ANSWER ALL QUESTIONS BASED UPON YOUR ACTUAL KNOWLEDGE. (b) ATTACH ADDITIONAL PAGES WITH YOUR SIGNATURE IF ADDITIONAL SPACE IS REQUIRED. (c) COMPLETE THIS FORM YOURSELF. (d) IF SOME ITEMS DO NOT APPLY TO YOUR PROPERTY, CHECK "NA" (NON-AP- PLICABLE). IF YOU DO NOT KNOW THE ANSWER CHECK "UNKN" (UNKNOWN). SELLER'S STATEMENT: THE SELLER MAKES THE FOLLOWING REPRESENTATIONS TO THE BUYER BASED UPON THE SELLER'S ACTUAL KNOWLEDGE AT THE TIME OF SIGN- ING THIS DOCUMENT. THE SELLER AUTHORIZES HIS OR HER AGENT, IF ANY, TO PROVIDE A COPY OF THIS STATEMENT TO A PROSPECTIVE BUYER OF THE RESIDEN- TIAL REAL PROPERTY. THE FOLLOWING ARE REPRESENTATIONS MADE BY THE SELLER AND ARE NOT THE REPRESENTATIONS OF THE SELLER'S AGENT. GENERAL INFORMATION 1. HOW LONG HAVE YOU OWNED THE PROPERTY? 2. HOW LONG HAVE YOU OCCUPIED THE PROPERTY? 3. WHAT IS THE AGE OF THE STRUCTURE OR STRUCTURES? NOTE TO BUYER--IF THE STRUCTURE WAS BUILT BEFORE 1978 YOU ARE ENCOURAGED TO INVESTI- GATE FOR THE PRESENCE OF LEAD BASED PAINT. 4. DOES ANYBODY OTHER THAN YOURSELF HAVE A LEASE, EASEMENT OR ANY OTHER RIGHT TO USE OR OCCUPY ANY PART OF YOUR PROPERTY OTHER THAN THOSE STATED IN DOCUMENTS AVAILABLE IN THE PUBLIC RECORD, SUCH AS RIGHTS TO USE A ROAD OR PATH OR CUT TREES OR CROPS. YES NO UNKN NA 5. DOES ANYBODY ELSE CLAIM TO OWN ANY PART OF YOUR PROPERTY? YES NO UNKN NA (IF YES, EXPLAIN BELOW)
6. HAS ANYONE DENIED YOU ACCESS TO THE PROPERTY OR MADE A FORMAL LEGAL CLAIM CHALLENGING YOUR TITLE TO THE PROPERTY? YES NO UNKN NA (IF YES, EXPLAIN BELOW) 7. ARE THERE ANY FEATURES OF THE PROPERTY SHARED IN COMMON WITH ADJOINING LAND OWNERS OR A HOMEOWNERS ASSOCIATION, SUCH AS WALLS, FENCES OR DRIVEWAYS? YES NO UNKN NA (IF YES DESCRIBE BELOW) 8. ARE THERE ANY ELECTRIC OR GAS UTILITY SURCHARGES FOR LINE EXTEN- SIONS, SPECIAL ASSESSMENTS OR HOMEOWNER OR OTHER ASSOCIATION FEES THAT APPLY TO THE PROPERTY? YES NO UNKN NA (IF YES, EXPLAIN BELOW) 9. ARE THERE CERTIFICATES OF OCCUPANCY RELATED TO THE PROPERTY? YES NO UNKN NA (IF NO, EXPLAIN BELOW) 10. ARE THERE ANY DAMS OR OTHER WATER IMPOUNDMENT STRUCTURES LOCATED ON OR ABUTTING THE PROPERTY? YES NO UNKN NA 10-A. ARE THERE ANY DAMS OR WATER IMPOUNDMENT STRUCTURES ON THE PROP- ERTY THAT WOULD SUBJECT THE OWNER TO LIABILITY UNDER SECTION 15-0507 OF THE ENVIRONMENTAL CONSERVATION LAW? YES NO UNKN NA ENVIRONMENTAL NOTE TO SELLER - IN THIS SECTION, YOU WILL BE ASKED QUESTIONS REGARD- ING PETROLEUM PRODUCTS AND HAZARDOUS OR TOXIC SUBSTANCES THAT YOU KNOW TO HAVE BEEN SPILLED, LEAKED OR OTHERWISE BEEN RELEASED ON THE PROPERTY OR FROM THE PROPERTY ONTO ANY OTHER PROPERTY. PETROLEUM PRODUCTS MAY INCLUDE, BUT ARE NOT LIMITED TO, GASOLINE, DIESEL FUEL, HOME HEATING FUEL, AND LUBRICANTS. HAZARDOUS OR TOXIC SUBSTANCES ARE PRODUCTS THAT COULD POSE SHORT- OR LONG-TERM DANGER TO PERSONAL HEALTH OR THE ENVIRON- MENT IF THEY ARE NOT PROPERLY DISPOSED OF, APPLIED OR STORED. THESE INCLUDE, BUT ARE NOT LIMITED TO, FERTILIZERS, PESTICIDES AND INSECTI- CIDES, PAINT INCLUDING PAINT THINNER, VARNISH REMOVER AND WOOD PRESERVA- TIVES, TREATED WOOD, CONSTRUCTION MATERIALS SUCH AS ASPHALT AND ROOFING MATERIALS, ANTIFREEZE AND OTHER AUTOMOTIVE PRODUCTS, BATTERIES, CLEANING SOLVENTS INCLUDING SEPTIC TANK CLEANERS, HOUSEHOLD CLEANERS AND POOL CHEMICALS AND PRODUCTS CONTAINING MERCURY AND LEAD. NOTE TO BUYER - IF CONTAMINATION OF THIS PROPERTY FROM PETROLEUM PRODUCTS AND/OR HAZARDOUS OR TOXIC SUBSTANCES IS A CONCERN TO YOU, YOU ARE URGED TO CONSIDER SOIL AND GROUNDWATER TESTING OF THIS PROPERTY. [10] 11. IS ANY OR ALL OF THE PROPERTY LOCATED IN A DESIGNATED FLOOD- PLAIN? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [11] 12. IS ANY OR ALL OF THE PROPERTY LOCATED IN A DESIGNATED WETLAND? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [12] 13. IS THE PROPERTY LOCATED IN AN AGRICULTURAL DISTRICT? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [13] 14. WAS THE PROPERTY EVER THE SITE OF A LANDFILL? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [14] 15. ARE THERE OR HAVE THERE EVER BEEN FUEL STORAGE TANKS ABOVE OR BELOW THE GROUND ON THE PROPERTY? YES NO UNKN NA IF YES, ARE THEY CURRENTLY IN USE? YES NO UNKN NA LOCATION(S) ARE THEY LEAKING OR HAVE THEY EVER LEAKED? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [15] 16. IS THERE ASBESTOS IN THE STRUCTURE? YES NO UNKN NA (IF YES, STATE LOCATION OR LOCATIONS BELOW) [16] 17. IS LEAD PLUMBING PRESENT? YES NO UNKN NA (IF YES, STATE LOCATION OR LOCATIONS BELOW) [17] 18. HAS A RADON TEST BEEN DONE? YES NO UNKN NA (IF YES, ATTACH A COPY OF THE REPORT)
[18] 19. HAS MOTOR FUEL, MOTOR OIL, HOME HEATING FUEL, LUBRICATING OIL OR ANY OTHER PETROLEUM PRODUCT, METHANE GAS, OR ANY HAZARDOUS OR TOXIC SUBSTANCE SPILLED, LEAKED OR OTHERWISE BEEN RELEASED ON THE PROPERTY OR FROM THE PROPERTY ONTO ANY OTHER PROPERTY? YES NO UNKN NA (IF YES, DESCRIBE BELOW) [19] 20. HAS THE PROPERTY BEEN TESTED FOR THE PRESENCE OF MOTOR FUEL, MOTOR OIL, HOME HEATING FUEL, LUBRICATING OIL, OR ANY OTHER PETRO- LEUM PRODUCT, METHANE GAS, OR ANY HAZARDOUS OR TOXIC SUBSTANCE? YES NO UNKN NA (IF YES, ATTACH REPORT(S)) STRUCTURAL [20] 21. IS THERE ANY ROT OR WATER DAMAGE TO THE STRUCTURE OR STRUC- TURES? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [21] 22. IS THERE ANY FIRE OR SMOKE DAMAGE TO THE STRUCTURE OR STRUC- TURES? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [22] 23. IS THERE ANY TERMITE, INSECT, RODENT OR PEST INFESTATION OR DAMAGE? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [23] 24. HAS THE PROPERTY BEEN TESTED FOR TERMITE, INSECT, RODENT OR PEST INFESTATION OR DAMAGE? YES NO UNKN NA (IF YES, PLEASE ATTACH REPORT(S)) [24] 25. WHAT IS THE TYPE OF ROOF/ROOF COVERING (SLATE, ASPHALT, OTHER.)? ANY KNOWN MATERIAL DEFECTS? HOW OLD IS THE ROOF? IS THERE A TRANSFERABLE WARRANTEE ON THE ROOF IN EFFECT NOW? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [25] 26. ARE THERE ANY KNOWN MATERIAL DEFECTS IN ANY OF THE FOLLOWING STRUCTURAL SYSTEMS: FOOTINGS, BEAMS, GIRDERS, LINTELS, COLUMNS OR PARTITIONS. YES NO UNKN NA (IF YES, EXPLAIN BELOW) MECHANICAL SYSTEMS & SERVICES [26] 27. WHAT IS THE WATER SOURCE (CIRCLE ALL THAT APPLY - WELL, PRIVATE, MUNICIPAL, OTHER)? IF MUNICIPAL, IS IT METERED? YES NO UNKN NA [27] 28. HAS THE WATER QUALITY AND/OR FLOW RATE BEEN TESTED? YES NO UNKN NA (IF YES, DESCRIBE BELOW) [28] 29. WHAT IS THE TYPE OF SEWAGE SYSTEM (CIRCLE ALL THAT APPLY - PUBLIC SEWER, PRIVATE SEWER, SEPTIC OR CESSPOOL)? IF SEPTIC OR CESSPOOL, AGE? ________ DATE LAST PUMPED? ________ FREQUENCY OF PUMPING? ________ ANY KNOWN MATERIAL DEFECTS? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [29] 30. WHO IS YOUR ELECTRIC SERVICE PROVIDER? ________ WHAT IS THE AMPERAGE? ________ DOES IT HAVE CIRCUIT BREAKERS OR FUSES? ________ PRIVATE OR PUBLIC POLES? ________ ANY KNOWN MATERIAL DEFECTS? YES NO UNKN NA (IF YES, EXPLAIN BELOW) [30] 31. ARE THERE ANY FLOODING, DRAINAGE OR GRADING PROBLEMS THAT RESULTED IN STANDING WATER ON ANY PORTION OF THE PROPERTY? YES NO UNKN NA (IF YES, STATE LOCATIONS AND EXPLAIN BELOW) [31] 32. DOES THE BASEMENT HAVE SEEPAGE THAT RESULTS IN STANDING WATER? YES NO UNKN NA (IF YES, EXPLAIN BELOW) ARE THERE ANY KNOWN MATERIAL DEFECTS IN ANY OF THE FOLLOWING (IF YES, EXPLAIN BELOW. USE ADDITIONAL SHEETS IF NECESSARY.): [32] 33. PLUMBING SYSTEM? YES NO UNKN NA [33] 34. SECURITY SYSTEM? YES NO UNKN NA [34] 35. CARBON MONOXIDE DETECTOR? YES NO UNKN NA [35] 36. SMOKE DETECTOR? YES NO UNKN NA
[36] 37. FIRE SPRINKLER SYSTEM? YES NO UNKN NA [37] 38. SUMP PUMP? YES NO UNKN NA [38] 39. FOUNDATION/SLAB? YES NO UNKN NA [39] 40. INTERIOR WALLS/CEILINGS? YES NO UNKN NA [40] 41. EXTERIOR WALLS OR SIDING? YES NO UNKN NA [41] 42. FLOORS? YES NO UNKN NA [42] 43. CHIMNEY/FIREPLACE OR STOVE?YES NO UNKN NA [43] 44. PATIO/DECK? YES NO UNKN NA [44] 45. DRIVEWAY? YES NO UNKN NA [45] 46. AIR CONDITIONER? YES NO UNKN NA [46] 47. HEATING SYSTEM? YES NO UNKN NA [47] 48. HOT WATER HEATER? YES NO UNKN NA [48] 49. THE PROPERTY IS LOCATED IN THE FOLLOWING SCHOOL DISTRICT UNKN NOTE: BUYER IS ENCOURAGED TO CHECK PUBLIC RECORDS CONCERNING THE PROP- ERTY (E.G. TAX RECORDS AND WETLAND AND FLOOD PLAIN MAPS) THE SELLER SHOULD USE THIS AREA TO FURTHER EXPLAIN ANY ITEM ABOVE. IF NECESSARY, ATTACH ADDITIONAL PAGES AND INDICATE HERE THE NUMBER OF ADDI- TIONAL PAGES ATTACHED. ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ SELLER'S CERTIFICATION: SELLER CERTIFIES THAT THE INFORMATION IN THIS PROPERTY CONDITION DISCLOSURE STATEMENT IS TRUE AND COMPLETE TO THE SELLER'S ACTUAL KNOWLEDGE AS OF THE DATE SIGNED BY THE SELLER. IF A SELLER OF RESIDENTIAL REAL PROPERTY ACQUIRES KNOWLEDGE WHICH RENDERS MATERIALLY INACCURATE A PROPERTY CONDITION DISCLOSURE STATEMENT PROVIDED PREVIOUSLY, THE SELLER SHALL DELIVER A REVISED PROPERTY CONDITION DISCLOSURE STATEMENT TO THE BUYER AS SOON AS PRACTICABLE. IN NO EVENT, HOWEVER, SHALL A SELLER BE REQUIRED TO PROVIDE A REVISED PROPERTY CONDI- TION DISCLOSURE STATEMENT AFTER THE TRANSFER OF TITLE FROM THE SELLER TO THE BUYER OR OCCUPANCY BY THE BUYER, WHICHEVER IS EARLIER. SELLER _______________________________________ DATE ________________ SELLER _______________________________________ DATE ________________ BUYER'S ACKNOWLEDGMENT: BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THIS STATEMENT AND BUYER UNDERSTANDS THAT THIS INFORMATION IS A STATEMENT OF CERTAIN CONDITIONS AND INFORMATION CONCERNING THE PROPERTY KNOWN TO THE SELLER. IT IS NOT A WARRANTY OF ANY KIND BY THE SELLER OR SELLER'S AGENT AND IS NOT A SUBSTITUTE FOR ANY HOME, PEST, RADON OR OTHER INSPECTIONS OR TESTING OF THE PROPERTY OR INSPECTION OF THE PUBLIC RECORDS. BUYER _______________________________________ DATE ________________ BUYER _______________________________________ DATE ________________ S 3. This act shall take effect immediately.

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