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Known Contaminated Sites in NJ New Residential Construction Off-Site Conditions Disclosure Act

 

New Residential Construction Off-Site Conditions Disclosure Act

The "New Residential Construction Off-Site Conditions Disclosure Act" (L.1995,c.253; C.46:3C-1 et seq.) was signed into law on 9/12/95. The law requires that lists of certain "off-site conditions" in the municipality, which may affect the value of newly constructed residential real estate, be available at each Municipal Clerk's office within each municipality. This includes Superfund sites and other known contaminated sites. Lists of the known contaminated sites in a municipality are also available online.

NOTE: Below is a "courtesy copy" of the Act's text, not the official copy.

46:3C-1.Short title

  1. This act shall be known, and may be cited, as the "New Residential Construction Off-Site Conditions Disclosure Act."

46:3C-2.Findings, declarations relative to purchase of residential real estate

  1. The Legislature finds and declares that the purchase of a residence involves a substantial portion of the average household's net worth, and the decision to purchase a particular residence requires consideration of a wide range of factors concerning the area in which the residential real estate is located; that the professionals who engage in the business of selling newly-constructed residential real estate can facilitate prudent decision-making with respect to the purchase of residences by advising purchasers of the availability of information concerning factors which can reasonably be determined to exist and which may affect the value of the residence; that the due diligence responsibilities of purchasers and the disclosure duties of sellers of residential real estate are mutually interdependent and, therefore, ambiguity in the definition and assignment of the sellers' disclosure duties may inadvertently diminish the due diligence efforts of purchasers, or unnecessarily increase the costs of residential real estate transactions; and that there currently exists ambiguity concerning the disclosure duties of the sellers of residential real estate.
  2. The Legislature therefore determines that it is in the public interest to define the entirety of the disclosure duties of the sellers of newly constructed residential real estate and to create a public repository of relevant off-site conditions which may be accessed by purchasers of such real estate.

46:3C-3.Definitions

  1. As used in this act:

  2. "Newly constructed" means any dwelling unit not previously occupied, excluding dwelling units constructed solely for lease and units governed by the "National Manufactured Housing Construction and Safety Standards Act of 1974," 42 U.S.C.5401 et seq.

    "Off-site conditions" mean those conditions which may materially affect the value of the residential real estate property and shall be limited to the following:

    (1) The latest Department of Environmental Protection listing of sites included on the National Priorities List pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. 9601 et seq.;

    (2) The latest sites known to and confirmed by the Department of Environmental Protection and included on the New Jersey master list of known hazardous discharge sites, prepared pursuant to P.L.1982, c.202 (C.58:10-23.15 et seq.);

    (3) Overhead electric utility transmission lines conducting 240,000 volts or more;

    (4) Electrical transformer substations;

    (5) Underground gas transmission lines as defined in 49 C.F.R.192.3;

    (6) Sewer pump stations of a capacity equal to, or in excess of 0.5 million gallons per day and sewer trunk lines in excess of 15 inches in diameter;

    (7) Sanitary landfill facilities as defined pursuant to section 3 of P.L.1970, c.39 (C.13:1E-3);

    (8) Public wastewater treatment facilities; and

    (9) Airport safety zones as defined pursuant to section 3 of P.L.1983, c.260 (C.6:1-82).

    "Person" means an individual, firm, corporation, limited liability corporation, partnership, association, trust or other legal entity or any combination thereof.

    "Property" means a lot or plat upon which a residence has been, or will be, constructed.

    "Project" means the development site upon which residential real estate for one or more purchasers is being constructed.|

    Public wastewater treatment facility" means a structure or land involving the collection, conveyance, storage, reduction, recycling, reclamation, disposal, separation or other treatment of wastewater or sewage sludge.

    "Purchaser" means a buyer of newly constructed residential real estate.

    "Residential real estate" means a property or structure or both which will serve as a residence for the purchaser.

    "Seller" means a real estate broker, real estate salesperson and real estate broker-salesperson as defined in R.S.45:15-3 or a builder as defined in section 2 of P.L.1977, c.467 (C.46:3B-2) who is engaged in the sale of newly constructed residential real estate.

46:3C-4.Off-site conditions, municipal lists

  1. The municipal clerk of each municipality shall receive and make available, in the form and manner specified by the Commissioner of Community Affairs after consultation with the Department of Environmental Protection, lists identifying the location of off-site conditions existing within the boundaries of the municipality.

46:3C-5.Providing municipal clerk with lists of off-site conditions

    1. Every person who owns, leases, or maintains any off-site condition, as defined in paragraph (3), (4), (5), (6), or (8) of section 3 of P.L.1995, c.253 (C.46:3C-3), located in this State, shall provide the municipal clerk of each municipality in which those off-site conditions are located, a list in the form and manner specified by the Commissioner of Community Affairs, of the location of the off-site conditions within the boundaries of the municipality. The provisions of this subsection shall apply whether or not the person provides any service within a municipality in which an off-site condition exists.
    2. Every person subject to the provisions of subsection a. of this section shall submit the required lists within one year of the effective date of this act and shall update the lists, as necessary, as of August 31 of every year.


    3. The person providing the lists pursuant to this section shall also send to the municipal clerk of each municipality receiving the list a statement as follows:
      "This list identifies [insert type] off-site conditions owned, leased or maintained by [insert name and address of provider] as defined in the "New Residential Construction Off-Site Conditions Disclosure Act," P.L.1995, c.253 (C.46:3C-1 et seq.), which as of [date] have been identified as existing within [name of municipality]."

46:3C-6.Lists from the Commissioner of Environmental Protection

    1. The Commissioner of Environmental Protection shall provide the municipal clerk of each municipality with lists, in the form and manner specified by the Commissioner of Community Affairs, after consultation with the Department of Environmental Protection, of the location of all off-site conditions, as defined in paragraphs (1), (2) and (7) of section 3 of P.L.1995, c.253 (C.46:3C-3), located within the boundaries of the municipality.
    2. The Commissioner of Environmental Protection shall submit the lists within one year of the effective date of this act and shall update the lists, as necessary, as of August 31 of every year. The department shall also send to the municipal clerk of each municipality receiving the lists a statement as follows:
      "This list identifies [insert type] off-site conditions as defined in the "New Residential Construction Off-Site Conditions Disclosure Act," P.L.1995, c.253 (C.46:3C-1 et seq.), which as of [date] have been identified and listed by the Department of Environmental Protection as existing within [name of municipality]."

46:3C-7 Fees for copies of lists.

  1. A municipality that receives and makes available the lists required under P.L.1995, c.253 (C.46:3C-1 et seq.) may charge purchasers in accordance with the provisions of section 2 of P.L.1963, c.73 (C.47:1A-2).

46:3C-8.Seller's notice regarding off-site conditions

  1. At the time of entering into a contract for the sale of newly constructed residential real estate, the seller shall provide the purchaser with a notice of the availability of the lists of the off-site conditions that exist not only within the boundaries of the municipality in which the residential real estate is located but also within any other municipality located within one-half mile of the residential real estate. The notice shall be as follows:
    "NOTIFICATION REGARDING OFF-SITE CONDITIONS

    Pursuant to the "New Residential Construction Off-Site Conditions Disclosure Act," P.L.1995, c.253 (C.46:3C-1 et seq.), sellers of newly constructed residential real estate are required to notify purchasers of the availability of lists disclosing the existence and location of off-site conditions which may affect the value of the residential real estate being sold. The lists are to be made available by the municipal clerk of the municipality within which the residential real estate is located and in other municipalities which are within one-half mile of the residential real estate. The address(es) and telephone number(s) of the municipalities relevant to this project and the appropriate municipal offices where the lists are made available are listed below. Purchasers are encouraged to exercise all due diligence in order to obtain any additional or more recent information that they believe may be relevant to their decision to purchase the residential real estate. Purchasers are also encouraged to undertake an independent examination of the general area within which the residential real estate is located in order to become familiar with any and all conditions which may affect the value of the residential real estate.

    The purchaser has five (5) business days from the date the contract is executed by the purchaser and the seller to send notice of cancellation of the contract to the seller. The notice of cancellation shall be sent by certified mail. The cancellation will be effective upon the notice of cancellation being mailed. If the purchaser does not send a notice of cancellation to the seller in the time or manner described above, the purchaser will lose the right to cancel the contract as provided in this notice.

    MUNICIPALITY
    ADDRESS
    TELEPHONE NUMBER "

46:3C-9.Cancellation of contract

  1. The purchaser may cancel the contract by sending a written notice of cancellation to the seller within five business days from the date the contract is executed by the purchaser and the seller, informing the seller that the purchaser is canceling the contract. The notice of cancellation shall be sent by certified mail. If the purchaser fails to send the notice of cancellation in the time and manner provided for in this section, the purchaser shall lose the right to cancel the contract pursuant to this act and the contract shall be otherwise legally binding.

46:3C-10.Seller's disclosure duties

    1. By providing the purchaser with the notice of the availability of the lists, as required by section 8 of P.L.1995, c.253 (C.46:3C-8), the seller shall be deemed to have disclosed fully the off-site conditions relating to the residential real estate and shall be deemed to have satisfied fully the seller's disclosure duties pursuant to New Jersey law notwithstanding that (1) the lists required to be submitted to the municipal clerk of each municipality pursuant to sections 5 and 6 of P.L.1995, c.253 (C.46:3C-5 and C.46:3C-6) have not been, or are not yet required to be submitted or (2) a municipal clerk has not received or made available the lists as required pursuant to section 4 of P.L.1995, c.253 (C.46:3C-4) or (3) there is any error, omission or inaccuracy in the lists as made available by the municipality. This furnishing of the notice shall be available to the seller as a defense to any claim that the seller failed to disclose any off-site conditions.
    2. A seller's responsibility to disclose those conditions that may materially affect the value of the residential real estate, but which are not part of the project, shall be fully met when notice is provided in accordance with the provisions of P.L.1995, c.253 (C.46:3C-1 et seq.). The furnishing of the notice shall be available to the seller as a defense to any claim that the seller failed to disclose any conditions which are not part of the project.
    3. With respect to any residential real estate contracts entered into and fully executed prior to the effective date of this act, no seller shall be deemed to have breached any duty to disclose, nor shall any seller be liable to any person for any loss, damage, or any other injury for failure to have disclosed the existence of any off-site condition or any other condition which is not part of the residential real estate, except in any specific cases in which there has been an action filed in the Superior Court prior to April 25, 1995, or in which the Appellate Division of the Superior Court or the Supreme Court has issued a decision prior to the effective date of this act.
    4. The provisions of P.L.1995, c.253 (C.46:3C-1 et seq.) shall not be interpreted to affect the disclosure requirements for conditions off-site contained in "The Planned Real Estate Development Full Disclosure Act," P.L.1977, c.419 (C.45:22A-21 et seq.), the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.) or in any other statutory provision.

46:3C-11.Seller not required to contribute to list

  1. No seller, unless otherwise required by section 5, as a condition of completeness or approval pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.), or any other law, rule or regulation adopted pursuant thereto, shall be required to compile or to contribute to the compilation of, in whole or in part, the lists of off-site conditions required to be made available by municipal clerks pursuant to this act.

46:3C-12.Nonliability for civil damages

  1. The Department of Environmental Protection or a municipality making available to purchasers lists which disclose the existence and location of off-site conditions pursuant to this act shall not be liable for civil damages for withholding or omitting facts pertaining to such conditions which materially affected the value of the property or otherwise caused any loss, damage or other injury to the plaintiff, unless the plaintiff can affirmatively demonstrate that the department or municipality was in possession of, or which a reasonable person would conclude that it had or should have had knowledge of, those facts and the department or municipality knowingly or intentionally omitted or withheld the facts.
  2. The Department of Community Affairs and the Department of Environmental Protection shall report to the Legislature and the Governor 18 months after the effective date of this act concerning the impact of this act and the staffing levels and costs needed to properly effectuate its purposes. The Department of Community Affairs shall also focus its attention in the report on the municipalities' role and success in effectuating the act. Both departments shall make recommendations they deem necessary to improve the procedures required by the act and to impose penalties for noncompliance with section 4, subsection a. of section 5, and subsection a. of section 6. The Department of Environmental Protection shall address the feasibility of providing map of off-site conditions.
  3. This act shall take effect immediately and apply to every contract for the sale of residential real estate entered into after the effective date, except that subsection c. of section 10 of this act shall apply retroactively to residential real estate contracts entered into prior to the effective date.

Approved September 12, 1995.