Radon Rights and Duties
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While ‘radon’ is rarely mentioned in BC law, closer scrutiny shows many areas where there are duties to ensure health and safety.
We have researched and prepared short summaries and in depth opinions on legal duties and rights to redress around high radon.
In New Construction
Architects
Architectural plans are an important part of building construction. Developers, builders, municipalities and homeowners often rely on architects to ensure buildings are safe.
There are now radon provisions in the BC Building Code and good reason to think radon is covered by New Home Warranty.
If architects overlook radon, they may face legal claims in contract or negligence by builders, contractors, or homeowners. Municipalities may also rely on Letters of Assurance from architects that say buildings comply with the Building Code.
If municipalities are sued over high radon, they may in turn make claims against architects.
Architects need to ensure they understand the Building Code provisions. They should take steps to ensure radon systems are designed into buildings. We also recommend that architects advise their clients to use C-NRPP- certified mitigators to ensure radon protection in new buildings.
Architects need to make sure buildings are tested to ensure there is no high radon, even if the Building Code is followed.
Builders and Contractors
Builders need to understand radon. They need to follow the Building Code, comply with the Homeowners Protection Act, and owe a duty of care to future occupants to ensure homes are safe.
Builders and contractors should ensure that radon is addressed when buildings are designed and built. They should use CNRPP certified mitigators for radon systems. And they should help new occupants test for radon.
Engineers
Engineers’ plans are an important part of building construction. Developers, builders, municipalities and homeowners often rely on engineers to ensure buildings are safe. Preventing elevated radon is an important part of safety.
There are now radon provisions in the BC Building Code and good reason to think radon is covered by New Home Warranty.
If engineers overlook radon, they may face legal claims in contract or negligence by builders, contractors, or homeowners. Municipalities may also rely on Letters of Assurance from engineers that say buildings comply with the Building Code. If municipalities are sued over high radon, they may in turn make claims against engineers. The public may also make complaints to the Engineers and Geoscientists of British Columbia, the professional disciplinary body.
Engineers should:
- Ensure radon mitigation systems are designed into buildings. Best practices in radon mitigation are described in Canadian General Standards Board (CGSB) Radon control options for new construction in low-rise residential buildings, CAN/CGSB-149.11-2019.
- Advise their clients to use radon mitigators who are certified through the Canadian National Radon Proficiency Progam (C-NRPP) for radon tests and systems.
- Help ensure new occupants test for radon. If high radon is found, it must be mitigated.
Municipal Inspectors
We have researched the potential liabilities of municipal building inspectors around radon.
In many municipalities in BC, the Building Code now requires steps to address radon in new homes. In some cases municipalities will rely on Letters of Assurance from engineers and architects who themselves have duties regarding radon. However, municipalities may still inspect buildings before issuing occupancy permits. Municipal inspectors have a duty of care when conducting inspections. If inspectors are negligent in their duties, they can be liable. They may have to pay costs to ensure homes do not have high radon or compensation when people contract lung cancer from radon exposure.
Municipalities should take steps to know local radon levels. They should also make sure inspectors understand the issues surrounding radon, including helping them recieve certification from C-NRPP. Municipalities can work with builders and developers to ensure new homes fully address radon.
New Home Warranty Providers
Home warranty insurance providers in BC need to be aware of radon. There are now radon provisions in the BC Building Code for many municipalities.
The Homeowners Protection Act requires most new homes to have insurance coverage for defects in materials, structure and building envelope (s. 22(2)).
If builders do not follow the Code, this will count as a defect. But high radon can persist despite the Code, and in regions the Code does not require radon mitigation equipment.
We think its only a question of time until courts decide that high radon is a defect, regardless of the Code. In Ontario, Tarion, the sole New Home Warranty provider, has taken this step.
We encourage new homeowners to apply to their New Home Warranty provider if they encounter faulty radon mitigation systems or their home has high radon.
Warranty providers should adopt policies to cover high radon.
Purchasers of New Homes
When you move into a new home you should test for radon. If you find that radon is a problem, you may have legal avenues of redress from your New Home Warranty provider, or the architects, engineers and builders who built the home.
New Home Warranty is an insurance policy that covers homes constructed since July 1, 1999 by residential builders who are licensed with BC Housing.
There should be no serious disagreement that if the Building Code is not followed, this will count as a defect. The BC Building Code now has radon provisions for many municipalities. Further, in our view, it is only a matter of time until homeowners make successful claims under the New Home Warranty for high radon.
Courts would most likely find high radon to be a defect in materials or structure for a number of reasons including:
- The National Radon Guideline provides a clear standard for health in a home
- High radon is considered to be a latent defect by the BC Financial Services Authority, which now regulates BC real estate agents. This means if a seller or their real estate agent know radon is a problem in a home, they need to tell buyers.
- What counts as a defect for a real estate transaction should also count as a defect under BC’s Homeowner Protection Act.
- In Ontario, Tarion (the province’s only home warranty insurance provider) agrees that high radon is a defect.
As a homeowner, if you find that there is a problem with high radon in your home you should follow the normal procedure for new home warranty concerns.
If the New Home Warranty does not cover your home, you can try to resolve the matter through using the online Civil Resolution Tribunal, which covers small claims up to $5,000.
If these avenues do not work you may have the option to sue your builder or contractor in negligence law, although this will be a more complicated claim and it is advised to consult with a lawyer before proceeding.
Click below to read a more detailed legal opinion entitled RADON: Rights and Liabilities in Construction Law which includes further information, resources, and legal analysis.
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We have also researched what public bodies in BC can do: Legal powers of municipal governments & Steps that health authorities and agencies can take.
This work was made possible thanks to support from the Law Foundation of B.C.