Septic Waivers

Among the changes to the NVAR Residential Sales contract is a change to provision 12 – Utilities, Water, Sewage, Heating and Central Air Conditioning.  Specifically, the following language was added: “Septic Waiver Disclosure provided by Seller (if applicable) per VA Code section 32.1-164 1:1. State Board of Health septic system waivers are not transferrable.

Pursuant to the above referenced statute, “whenever any onsite sewage system is failing, or an owner has elected to voluntarily upgrade an onsite sewage system pursuant to § 32.1-164.1:3, and it is on or serves real property consisting of not less than one nor more than four dwelling units and the Board's regulations impose (i) a requirement for treatment beyond the level of treatment provided by the existing onsite sewage system when operating properly or (ii) a new requirement for pressure dosing, the owner may request a waiver from such requirements. The Commissioner shall grant any request for such waiver, unless he finds that the system was installed illegally without a permit. Any such waivers shall be recorded in the land records of the clerk of the circuit court in the jurisdiction in which the property on which the relevant onsite sewage system is located. Except as provided in subsection C, waivers granted hereunder shall not be transferable and shall be null and void upon transfer or sale of the property on which the onsite sewage system is located (emphasis added). Additional treatment or pressure dosing requirements shall be imposed in such instances when the property is transferred or sold.”

The statute goes on to say, [a]ny owner who (a) obtained a waiver to repair a failing onsite sewage system pursuant to this subsection on or between July 1, 2004, and December 6, 2011, (b) completed such repair, and (c) voluntarily upgrades the system may request, and shall receive, a voluntary upgrade waiver in accordance with this section and § 32.1-164.1:3. Any such waiver shall be recorded in the land records of the clerk of the circuit court in the jurisdiction where the onsite sewage system is located and shall supersede any prior waiver recorded pursuant to this section.

We can see that the statutory language regarding the waiver not being transferrable has been added to the contract in provision 12.  The question as to how the relevant parties to the transaction will actually know is addressed by the statute.

“The owner of the relevant property shall disclose, in accordance with subsection D, that any operating permit for the onsite sewage system that has been granted a waiver authorized by this subsection shall be null and void at the time of transfer or sale of the property and that the Board's regulatory requirements for additional treatment or pressure dosing shall be required before an operating permit may be reinstated.”

Subsection D reads, “[t]he owner of residential real property subject to subsection B shall deliver to the purchaser a written disclosure prior to the acceptance of a real estate purchase contract. The written disclosure statement shall be in a separate document, developed by the Real Estate Board on or before January 1, 2006. Prior to that time, it shall be the obligation of the owner of such residential real property to prepare the written disclosure statement and provide it to the purchaser as otherwise provided herein.  The Real Estate Board disclosure can be found here - Septic Waiver Disclosure.

So how do we know?

-The waiver is recorded in the land records.

- The seller is required to provide the Virginia Real Estate Board disclosure to the purchaser.

- The statute requires licensees to inform their clients of their rights and obligations under the statute.

In the event “septic” is checked in the contract, the new language about waivers should be a tip off to listing agents to make inquiry of their clients about any waivers that were granted and inform them of the obligation to provide a disclosure per the statute.