About Septic System Regulations

What You Need To Know About
The Title V Septic System Regulations

By Daniel Karpman Attorney At Law

Nearly 30 percent of housing units in Massachusetts are dependent upon individual on-site sewage treatment and disposal facilities, rather than municipal sewer systems. Rural areas, especially, rely upon private wells for safe drinking water and underground septic systems for proper sewage disposal.

The Massachusetts Department of Environmental Protection (DEP)'s Title V of the state Environmental Code, 310 CMR 15.000, which regulates the design, construction and operation of septic systems, is of great importance to homeowners, real estate developers, lenders, realtors, and attorneys. The rules affect as many as 650,000 homeowners with on-site subsurface sewage disposal systems.

This article will focus primarily on the timetables for inspections and compliance. Realtors and closing attorneys should routinely provide a copy of the Title V sections 310 CMR 15.300 through 15.305 to every seller and purchaser of real estate served by on-site septic systems.

The regulations require that private septic systems must be inspected upon the conveyance of the property served by such disposal systems. A copy of the inspection report must be submitted to the buyer.

The inspection must occur at or within 9 months prior to the time of transfer of title to the property. If weather conditions prevent inspection at the time of conveyance, the inspection must occur as soon as weather permits, but not later than 6 months after the transfer. In the case of such a delay, the seller is required to notify the buyer in writing of the Title V rules for inspections and upgrades (310 CMR 15.300 through 15.305).

The regulations do not specifically address transfers by will or intestacy. The provisions do not apply to refinancing or a change in the form of ownership among the same owners, such as placing the property within a family trust of which the owners are the beneficiaries.

An inspection must be performed upon any change in use or expansion of use of the facility served where a building or occupancy permit is required. Shared systems must be inspected annually. When a facility is combined or divided, all systems serving the facility must be inspected.

The inspection must be performed by an approved system inspector. Such inspectors must attend DEP-sponsored training and pass an examination. The DEP list of certified inspectors includes approximately 3,000 registered engineers and board of health officers. Lists of DEP-approved inspectors may be obtained from local boards of health.

The inspector is required to submit the inspection report to the local approving authority and/or the DEP within 30 days of the inspection. Systems that are determined by the inspector to have failed to protect the public health and safety and the environment, pursuant to the criteria established in 310 CMR 15.303 and 15.304, must be upgraded within one year.

Both sellers and buyers in residential real estate transactions need to be aware of the risks and responsibilities for the inspection of the septic system and any upgrade which may be required. The parties should control the risks and responsibilities through appropriate contract language in the Purchase and Sale Agreement.

Residential property owners should be advised to have the septic system inspected and, if necessary, repaired well in advance of the closing date. The objective is for the seller to maintain control over the entire process. Ample time should be allotted to upgrade a substandard system to make the property marketable. Completion of repairs prior to the date of closing should eliminate any potential controversy over the septic system.

A seller should not delay the inspection process, by assuming that a potential buyer will accept the property with a substandard septic system and a reduction in the purchase price to cover the cost of upgrading the system. Likewise, placing funds in escrow for septic system repairs after the closing should be avoided, if possible. Conflict may arise if the construction costs are greater than the funds placed in escrow.

These rules establish a comprehensive system for the review and approval of alternative technologies under 310 CMR 15.280 through 15.289. Recirculating sand filters and humus/composting systems are approved for general use.

The Title V septic system regulations represent an effort by the DEP to implement a more rigorous environmental code. These regulatory changes offer real estate professionals the opportunity to provide timely and practical guidance to their clients.

The information presented in this article is general in nature, and is for informational purposes only. Please consult with an attorney for legal advice with respect to any specific matter.