Practice Areas
Appellate PracticeAviation Law
Business Law
Civil Litigation
Commercial Litigation
Elder Law
Employment & Labor Law
Energy & Public Utilities
Environmental Law
Estate Planning
Government Relations/Lobbying
Governmental Liability
Land Conservation
International Trade
Mediation & Arbitration
Medical Malpractice Defense
Municipal Law
Personal Injury
Probate Litigation
Products Liability
Professional Conduct
Real Estate
Tax Matters
Trust & Estate Administration
Waterfront Property Sales and Site Assessment Studies
Print this Article
Thursday, Jul 14, 2011, 10:13AM
With its scenic and tranquil lakes, ponds, and other waterways, a great many people look to New Hampshire as a location for second residences that will serve as vacation homes, family retreats, and investment properties. Given the desirability of these types of properties, it's not surprising that willing sellers looking to dispose of their very own "On Golden Pond" idyll have no difficulty locating eager buyers. In such cases, however, the operative phrase is "seller beware": New Hampshire law (RSA 485-A:39) mandates an oft-overlooked procedure which must be followed in selling any "developed waterfront property" that uses a septic disposal system.
In New Hampshire, "developed waterfront" property is statutorily defined as any parcel containing a structure suitable for either seasonal or year-round human occupancy, where such parcel is contiguous to or within 200 feet of the reference line of:
- A "great pond", i.e., a pond, lake, or artificial impoundment more than 10 acres in area (artificial impoundments qualify as great ponds so long as the lake or pond was more than ten acres in area prior to the installation of the dam) ;
- Coastal waters that are subject to the ebb and flow of the tide; or
- Rivers, meaning year-round flowing waters of fourth order or higher, and all rivers and river segments protected under RSA 483:15..
“Reference lines” for great ponds are the surface elevations indexed by the New Hampshire Department of Environmental Services (“DES”); for coastal waters, the highest observable tide line; and for rivers, the ordinary high water mark.
This law, sometimes called the "Waterfront Site Assessment" statute, applies only property sales. It does not affect other conveyances of "developed waterfront" property, such as gift transfers, or is transfers under the terms of a will.
However, for those properties that are covered by the statute, the owner must, prior to the execution of a purchase and sale agreement (or a "PSA") and at her expense, engage a permitted subsurface sewer or waste disposal system designer to conduct an on-site inspection, and to perform a site assessment study to determine whether the site meets DES’s current septic system standards. The resulting site assessment study form becomes part of the PSA, and its receipt must be acknowledged in writing by both the buyer and seller. If the site assessment is not complete prior to the PSA execution, the contract will be subject to the buyer’s acceptance of the completed site assessment.
However, for those properties that are covered by the statute, the owner must, prior to the execution of a purchase and sale agreement (or a "PSA") and at her expense, engage a permitted subsurface sewer or waste disposal system designer to conduct an on-site inspection, and to perform a site assessment study to determine whether the site meets DES’s current septic system standards. The resulting site assessment study form becomes part of the PSA, and its receipt must be acknowledged in writing by both the buyer and seller. If the site assessment is not complete prior to the PSA execution, the contract will be subject to the buyer’s acceptance of the completed site assessment.
An assessment indicating that the site fails to meet the criteria established by the statute won’t prohibit the sale of the property, but that information must be disclosed to the buyer as notice of possible limitations of the site for a septic disposal system.
Significantly - unlike other New Hampshire statutory disclosure requirements for residential real estate sales pertaining to such things as lead paint, radon, and insulation - the Waterfront Site Assessment statute has some teeth: failure of the seller or his agent to comply with the statute is a violation and is punishable by a fine not to exceed $500.
Before putting his "developed waterfront" property on the market, a careful seller - or his representative - should consider whether the law applies to the property being sold. The first question to ask, obviously, is whether your property is served by a septic disposal system. If it is, consider whether the property lies on or near the reference line of a great pond, New Hampshire tidal waters, or a qualifying river. Note that if you’re selling waterfront property for which a site assessment study has been conducted for a previous sale, and circumstances have not significantly changed on the premises, you and your permitted assessor may be able to update the previous study in lieu of conducting a new assessment.
It’s also worth noting that a seller’s agents sometimes fail to recognize those sales that must adhere to the requirements of RSA 485-A:39. In addition, the statute and the Department of Environmental Services regulations that implement the statute are fairly complex and constantly changing. Both of these factors are good reasons why a careful seller will enlist the assistance of counsel when selling waterfront property.
Significantly - unlike other New Hampshire statutory disclosure requirements for residential real estate sales pertaining to such things as lead paint, radon, and insulation - the Waterfront Site Assessment statute has some teeth: failure of the seller or his agent to comply with the statute is a violation and is punishable by a fine not to exceed $500.
Before putting his "developed waterfront" property on the market, a careful seller - or his representative - should consider whether the law applies to the property being sold. The first question to ask, obviously, is whether your property is served by a septic disposal system. If it is, consider whether the property lies on or near the reference line of a great pond, New Hampshire tidal waters, or a qualifying river. Note that if you’re selling waterfront property for which a site assessment study has been conducted for a previous sale, and circumstances have not significantly changed on the premises, you and your permitted assessor may be able to update the previous study in lieu of conducting a new assessment.
It’s also worth noting that a seller’s agents sometimes fail to recognize those sales that must adhere to the requirements of RSA 485-A:39. In addition, the statute and the Department of Environmental Services regulations that implement the statute are fairly complex and constantly changing. Both of these factors are good reasons why a careful seller will enlist the assistance of counsel when selling waterfront property.
<< Back to All Articles