Surprise buried in the back yard

Factual Questions
1

I’ve been in my house a year now. A couple months ago, I was doing some yard work and came across the top of what looks to be an old propane tank buried in my yard. I’m reasonably certain that it’s a propane tank, and I’m concerned that I have a hazardous condition on my hands.

My question is pretty simple. If this tank turns out to be a tank from an old pool heater and I need to pay a professional to safely unearth and dispose of it, does the prior homeowner have any liability for failing to disclose its presence when she sold me the house? For all I know, I’ve got a ticking time bomb under my back lawn.

2

When I graduated from law school in the mid-80s, my understanding was that at that time there was occurring a growth of law and business concerning abandoned buried tanks, the environmental impact, and liability of property owners. I seem to recall one classmate formed his practice largely around such matters.

Tho I have no expertise, my recollection is that this is a somewhat unique area of law, and standard presumptions regarding real estate disclosure and liability may not apply. There are undoubtedly also differences among various jurisdictions. And a relevant issue might be whether the previous owner knew of or used the tank.

But I seem to recall hearing of instances where the buyer who discovered a tank - or a leak - was liable for abatement. I believe the theory was that the communal interest in avoiding environmental harm outweighed the interest in tracking down the chain of title to assign liability more traditionally.

A really quick google seems to support my vague recollections, but of course, is far from legal advice upon which you should rely.

3

Did you get one of these from the seller? http://www.dos.state.ny.us/LCNS/pdfs/1614.pdf

And see, Alan J. Knauf, IS IT SAFE? CAVEAT EMPTOR After New York’s Property Condition Disclosure Act: http://www.nyenvlaw.com/Caveat_Emptor.htm

4

[QUOTE=Gfactor]
Did you get one of these from the seller? http://www.dos.state.ny.us/LCNS/pdfs/1614.pdf
[/QUOTE]

Nope. Is that something I should have received?

5

[QUOTE=THespos]
Nope. Is that something I should have received?
[/QUOTE]

Apparently one of the “loopholes” in the law requiring it permits the seller to give you a $500 credit instead of the disclosure form. I’ve got no first-hand knowledge of how it works in practice. But here are a few more resources:

http://www.nyrealestatelawblog.com/as_is_deals/index.html
http://www.allbusiness.com/legal/laws/994163-1.html

6

When I was involved in an environmental cleanup in the mid 80’s in Maryland, sellers were allowed to keep environmental problems a secret, and it became the buyer’s legal responsibility to clean it up. I think this varies from state to state, and wouldn’t be surprised if there were many changes to the law in the last couple decades.

7

[QUOTE=Gfactor]
Apparently one of the “loopholes” in the law requiring it permits the seller to give you a $500 credit instead of the disclosure form. I’ve got no first-hand knowledge of how it works in practice.
[/QUOTE]

When I bought one house and old another three years ago, the advice we were given was that it was worth the $500 to not have to fill out the disclosure form. Both we (as sellers of our old house) and the sellers of our new house took that option.

8

[QUOTE=Topologist]
When I bought one house and old another three years ago, the advice we were given was that it was worth the $500 to not have to fill out the disclosure form. Both we (as sellers of our old house) and the sellers of our new house took that option.
[/QUOTE]

I suspected as much. I think http://www.nyenvlaw.com/Caveat_Emptor.htm and http://www.allbusiness.com/legal/laws/994163-1.html are probably good summaries of New York law on undisclosed defects and hazards, with or without the disclosure form, although, like I said, I don’t know for sure.

9

It could be an old septic / holding tank, too. Doesn’t necessarily have to be gas tank / oil tank.

10

I just looked at our closing statement, and there’s a $500 credit on there that I’m reasonably sure is the $500 credit for not having to fill out that wonderful disclosure form. Yuck.

Thanks for all your advice thus far, folks.

And I’m sure it’s not a septic or holding tank. Cesspools are out front. This thing has fittings on it that make me almost 100% sure it’s a tank for an old propane pool heater.

11

I would think that a buried propane tank wouldn’t be as worrisome as a buried fuel oil tank. Wouldn’t propane primarily just vent off into the atmosphere, as opposed to fuel oil leaking into the earth and the groundwater?

12

I’m not sure about the state and local laws in your area, but in general environmental laws regarding underground tanks and hazardous materials cleanups apply only to commercial properties. Most likely your only recourse will be under whatever residential disclosure laws might apply.

I agree with 2nd Law that a propane tank would not be a likely source of soil or groundwater contamination.

13

If the fittings are obviously for propane gas, then a propane tank is not nearly the problem that a liquid fuel tank (gas, diesel, fuel oil) would be. And there are some ways to “abandon” even a liquid tank that leave it intact in the ground. So the tank may have been properly disposed of already.

If it was in my back yard, I’d call the County Environmental Health Department; but that’s because I know that they’re the ones administering LUFT (Leaking Underground Fuel Tank) regulations in my area. I don’t know who’s doing it in your area, and it didn’t google up easily.

You may want to contact a tank removal service and ask for advice. They’ll know the local rules and they may be able to confirm if it’s a propane tank and if it’s already been abandoned, for a small cost.

The only possible hazard from a propane tank is from remaining pressurized gas, and that can be transferred to portable tanks or possibly bled into the air. (I don’t know about your area’s air pollution regs, so I don’t advise you to do that without checking for the need for permits and such.) The only other possible hazard is subsidence if the tank wasn’t abandoned properly and it rusts and collapses.

Check around and get some local advice. It may not be all that bad. When I googled ‘manhattan leaking underground fuel tanks’, I didn’t get any regulatory agency, but I got a few lawyers and tank sales and removal services. That would be your second place to look. The first is your phone book. Try the government section and the yellow pages. Tank removal services would be my first shot in the yellow pages.

Good luck. I’ll hope for a previously abandoned propane tank for you.

14

[QUOTE=Yllaria]
The only possible hazard from a propane tank is from remaining pressurized gas
[/QUOTE]

I’m obviously speaking from a certain amount of ignorance on this, but can you help me understand why a potential bomb is something several people now have seemed to feel wasn’t much of a problem?

15

Looks like the Nassau Dept of Health is the one who would know if the take was properly adandoned.

The procedure for Suffolk County can be seen here.

16

[QUOTE=KneadToKnow]
I’m obviously speaking from a certain amount of ignorance on this, but can you help me understand why a potential bomb is something several people now have seemed to feel wasn’t much of a problem?
[/QUOTE]

It is only a bomb if the fuel is mixed in the correct proportion with oxygen and a spark is introduced. As long is it remains in the tank, or is vented in such a way to prevent a explosive mixture from accumulating, the risk is minimal.
Are you concerned with the gasoline in the tank in your car? Very similar danger, both with a relative low risk as long as precautions are followed.

17

As others have mentioned, if it’s actually a propane tank, you have very little to worry about from a remediation standpoint. Propane tanks are still being buried today. I have one in my backyard that was installed two years ago when my house was built.

If propane tanks leak, the gas simply vents to the atmosphere. No possibility of soil or groundwater contamination. However, in your case, with an abandoned tank, I would still contact the appropriate regulatory agency in your area or a licensed professional to ensure that no hazard exists from the tank.

If the tank is a liquid fuel tank (such as heating oil), it’s much more of an issue. All underground metal storage tanks eventually leak. You then have what’s referred to as a LUST (Leaking Underground Storage Tank). This is the reason that far fewer liquid fuel tanks are being buried today, and those that are buried are required to have double walls and leak detection systems.

Leaking tanks can be quite expensive to remediate, as it’s anyone’s guess as to how long a leaking tank has been leaking waste fuel into the soil and groundwater. Depending on your state and local laws, you and/or the responsible party may be required to remediate the condition. If anything, remediation requirements are generally more stringent for residential vs. industrial/commercial sites, because of the increased time that people are present in residential areas, and the increased likelihood that children and pregnant women could be exposed to any hazard.

[QUOTE=Napier]
When I was involved in an environmental cleanup in the mid 80’s in Maryland, sellers were allowed to keep environmental problems a secret, and it became the buyer’s legal responsibility to clean it up. I think this varies from state to state, and wouldn’t be surprised if there were many changes to the law in the last couple decades.
[/QUOTE]

There have been changes. I know of no state where sellers can escape responsibility for environmental issues of the sort being discussed*, disclosed or not. If you can prove that a previous owner was responsible for an environmental issue (e.g. improperly disposing of waste motor oil in the backyard), then the seller can never escape responsibility. On the other hand, if a seller is deceased or cannot be located, the current owner may indeed end up footing the bill. In such a situation (where the current owner is not responsible for the problem), there are various funding programs that can help offset this, such as the LUST trust fund.

Any current owner of a property with environmental issues would be well-advised to contact an environmental professional who can advise them on how best to proceed. The environmental professional can help determine the extent of the problem and who the potentially responsible parties (PRP), such as previous owners, may be. An attorney experienced in environmental law would also be a good resource.

In Connecticut, there is a program to license environmental professionals with the LEP (Licensed Environmental Professional) license. In Massachusetts, they have the LSP (Licensed Site Professional) license. Many states also have licensed professional engineers who specialize in environmental engineering. New York recognizes the term “environmental professional,” but does not yet have a license established for the profession.

*Note that this does not generally apply to environmental issues due to products that were legal at the time of installation, but are currently banned, such as asbestos and lead paint.
Disclaimer: None of the above should be considered to be professional advice.

18

Are you sure it’s not the base of a really large statue of St. Joseph?

So THAT’S how he sold the house so fast!

19

Or, it’s a secret basement full of 30 year old tuxedos.

http://apnews.myway.com/article/20071227/D8TQ2SH00.html
:cool: