Home
The Title V Issue Revisited: An Insurer's View
by Leslie J. Cook, Esquire
Contrary to a firm resolve to delay modification of the new Title V regulations until late fall at the earliest, Lieutenant Governor Celluci, together with DEP
Commissioner David Struhs, recently announced a series of major revisions to the
much reviled regulations which went into effect March 31, 1995. All but three of the itemized modifications were deemed to be administrative in nature and became effective immediately. Those requiring legislative approval relate to the enactment of a tax credit of up to $2500 per septic system repair (unused portions of this credit may be carried over for up to seven years); the designation of additional loan monies to be made available to finance the repairs and upgrades needed to comply with the new regulations; the creation and implementation of a statewide uniform code for the repair and upgrade of existing septic systems which will provide local boards of health with clear and concise guidelines. The money currently set aside for septic and sewer relief will not exceed $55 million, however the exact amount of money to be funded will not be known for some time. The administrative changes already implemented are targeted, almost exclusively, at providing relief to homeowners with existing septic systems. New construction will continue to be governed by the new, stricter regulations. Some of the private sewage disposal systems which "exhibited failure criteria" on the DEP approved report form, as a result of the inspection proceedings, may not now be interpreted in the same manner. Existing septic systems or cesspools located within fifty feet of (non drinking) surface waters won't automatically fail the inspection.
Cesspools in this category, as well as septic systems within 100 feet of drinking water supplies will be subject to review for pollution effects by local governments; an unsatisfactory evaluation will result in failure. If a cesspool is located within 100 feet of a drinking water supply it will still need to be replaced. Although the need for completed inspections at the time of closing has not been eliminated, the time frames have been relaxed to a certain degree. Both certificates of completion and inspection reports will be valid for two years, rather than the nine months set forth in the original regulations. If a homeowner has the system pumped annually, the inspection report may be used up to three years after the date of the inspection. No inspection is necessary if sewers are to be constructed within two years time. Any repairs required as a result of a failed system may be deferred if sewers are to be built within five years. Extensions to the five year interval may be granted by the DEP to local municipalities in the event construction has begun, but will not be complete within the appropriate time frame. The greatest impact the modified regulations will have is on condominium units. A shared system servicing two or more units will not have to be inspected more than once in three years regardless of the number of units which are transferred. The number of bedrooms specified in the Master Deed of the condominium will determine the size of the system necessary to maintain the facilities, whether as a single system or as one of many systems. The mandatory filing of inspection reports by homeowners has now become a voluntary act, thereby placing systems which have failed to pass outside the purview of the regulations. Until such time as a sale, or other triggering event occurs, the forced repair or replacement of the system is alleviated.
When a failed system is reported to the local board of health the necessary repairs do not have to be completed until two years has expired. Systems can now be pumped out up to a maximum of four times per year before a system fails on pump out criteria alone. New rules are being drafted which are intended to streamline and clarify the inspection requirements with respect to bankruptcy, foreclosure and inheritance situations. Inspections are not required where there is an inter vivos transfer between spouses or in the case of a new mortgage or refinancing. Municipalities may choose to adopt an overall inspection schedule in lieu of requiring inspections to be conducted at the time of transfer. The boards of health in each community are now obligated under the new rules to consider "the economic feasibility of the upgrade costs" not only the physical possibilities as dictated by the conditions of the site when determining the required level of upgrade or replacement of an existing system. It is inevitable that there will be additional revisions to Title V.
Leslie Cook is an attorney at First American Title Insurance in Boston, Massachusetts.