For lawyers, Realtors®, home buyers and sellers, safety and environmental issues are of upmost concern. Below is a summary of Oregon laws regulating these important issues. ~PCQ
Carbon Monoxide Alarms
Residential Landlord-Tenant Laws
- ORS 90.316 Carbon monoxide alarm defined;
- ORS 90.317 Repair or replacement of carbon monoxide alarms;
- ORS 90.320 Landlord’s habitability obligations include a functioning carbon monoxide alarm if the premises includes a carbon monoxide source;
- ORS 90.325 Requires tenant to replace batteries as need; prohibits tampering.
Residential Sales
- ORS 105.464 requires disclosure in the seller’s property disclosure statement whether there is a working carbon monoxide alarm in the home.
- ORS 105.836 defines “carbon monoxide alarm”; mandates functions; requires conformance to State Fire Marshall rules. (See, http://www.oregon.gov/OSP/SFM/Pages/index.aspx)
- ORS 105.838 provides that “A person may not convey fee title to a one and two family dwelling or multifamily housing that contains a carbon monoxide source, or transfer possession under a land sale contract of a one and two family dwelling or multifamily housing that contains a carbon monoxide source, unless one or more properly functioning carbon monoxide alarms are installed in the dwelling or housing at locations that provide carbon monoxide detection for all sleeping areas of the dwelling or housing.”
- ORS 105.840 provides that “(a) purchaser or transferee of a one and two family dwelling or multifamily housing who is aggrieved by a violation of ORS 105.838 or of a rule adopted under ORS 476.725 may bring an individual action in an appropriate court to recover the greater of actual damages or $250 per residential unit. In any action brought under this section, the court may award to a prevailing party, in addition to the relief provided in this section, reasonable attorney fees at trial and on appeal, and costs.” Actions brought under this section must be commenced within one year after the date of sale or transfer.
- ORS 105.842 Prohibits tampering with carbon monoxide alarm in one and two family dwellings and multifamily housing.
Practice Tip: Actual damages could be catastrophic. Entire families have died from carbon monoxide poisoning. Practitioners representing landlords – especially those that do not have professional third-party management – should emphasize the importance of having functioning carbon monoxide alarms in the premises at all times.
Smoke Detectors
Residential Sales.
ORS 479.250 – 479.305 govern the installation, use, and anti-tampering laws for smoke detectors in residential housing.
Landlord-Tenant Laws.
- ORS 479.255 Requires a smoke alarm or smoke detector in every dwelling unit covered by the Oregon Residential Landlord Tenant Law, ORS Chapter 90.
- ORS 90.320 Landlord’s habitability obligations include a functioning smoke alarm or smoke detector
- ORS 90.325 Requires tenant to replace batteries as needed; prohibits tampering
- ORS 90.740 Requires landlord to install working smoke alarm
- ORS 90.680 (Manufactured home and floating home facilities) Requires that if a space or slip tenant is selling their home, that they give notice to any lienholder, prospective purchaser or person licensed to sell dwellings or homes, and the location of all properly functioning smoke alarms
Fireplace Inserts
ORS 468A.460 – 468A.515 requires all sellers of “residential structures” to remove and destroy uncertified woodstoves or fireplace inserts prior to closing of the sale. A “residential structure” includes: (1) any structure that contains one or more dwelling units and is four stories or less above grade; (2) a condominium, rental residential unit or other residential dwelling unit that is part of a larger structure, if the property interest in the unit is separate from the property interest in the larger structure; (3) a modular home constructed off-site; (4) a manufactured dwelling; or (5) a floating home.
- The primary exclusions are pellet stoves, central wood fired furnaces, antique stoves, masonry fireplaces and masonry heaters.
- Removal and Destruction. This entails removal of the insert from the Property and destroying it. Woodstove retailers, chimney sweeps, or others may perform this task. Sellers removing an insert may take it directly to a metal scrap recycler or DEQ-approved landfill. Seller must obtain a receipt from the contractor or business certifying that the insert has been destroyed. DEQ has a disclosure form posted on its website that may be used to notify DEQ of the destruction of the insert. See, http://www.deq.state.or.us/aq/burning/woodstoves/heatSmart.htm
- Failure to remove or destroy the insert does not invalidate the sale. However, it may constitute a Class A misdemeanor and/or result in a civil fine. See, ORS 468A.990.
- Certification Label. A certified woodstove or fireplace insert is one that bears a certification label located on the back and issued by the Oregon DEQ or U.S. Environmental Protection Agency (“EPA”) which means that it has met certain particulate emission standards. If the insert does not bear such a label, it is “uncertified,” and must be removed and destroyed. Sellers who cannot access the back of their insert may look up the model number on the EPA’s certified woodstovelist or call the manufacturer of the insert.
- The seller is responsible for removal and destruction an uncertified insert located on the property. If the buyer accepts written responsibility for removal and destruction, the insert must be removed and destroyed by buyer within 30 days following the closing date of the sale.
- Additional Regulations. Sellers of residential structures located in some rural counties and cities may have regulations that require homeowners to remove non-certified solid fuel heating devices when a home is sold. Sellers and buyers in these areas should check with their local agency to determine if any other requirements might apply.
- More Information. See: DEQ Woodstove FAQs: http://www.deq.state.or.us/aq/burning/woodstoves/questions.htm; Contact DEQ – Heat Smart Program, 811 SW Sixth Ave., Portland, OR 97204; See ORS 468A.
Wells and Well Water
Pursuant to ORS 448.271(1), in any transaction for the sale or exchange of real estate that includes a well that supplies ground water for domestic purposes, the seller is required to have the well tested for arsenic, nitrates and total coliform bacteria. The seller is then required to submit the test results to Oregon’s Drinking Water Services and to the buyer within 90 days of receiving the test results. The seller’s failure to comply with this law will not invalidate the deed or contract executed in the transaction.
Septic Systems
Oregon does not mandate that septic systems be tested before closing of a residential sale. Common sense dictates that it occur, however, since there are significant questions and issues that arise when a residence on septic is sold. For example: Is the system legal, i.e. was it permitted? How old is it? Is the system adequate for the number of occupants? The best resource on this issue is the DEQ website here: http://www.deq.state.or.us/wq/onsite/aboutseptic.htm
Residential Oil Tanks
ORS 466.878 requires certain action when a property owner discontinues the use of an underground heating oil tank. When the property is sold, the seller must ensure that the tank be emptied of oil and the seller shall provide to the buyer documentation showing that the tank has been emptied.
