4.4 Delaware Environmental Issues and Special Topics

Lead-Based Paint (Federal Overlay)

The federal Residential Lead-Based Paint Hazard Reduction Act (Title X) governs all target housing built before 1978. For any sale or lease of such housing, the seller/landlord and the licensee must:

Trap: The 1978 cutoff is about when the home was built, not when it last sold or was painted. "Built before 1950" and "only if previously tested" are wrong — any pre-1978 dwelling triggers the rules even with no prior testing.

Delaware's Buyer Property Protection Act

Delaware adds a statutory seller disclosure regime in 6 Del. C. Chapter 25, Subchapter VII (Buyer Property Protection Act). The seller of residential real property must complete the Seller's Disclosure of Real Property Condition Report identifying known conditions and significant defects — covering structure, systems, water, sewage, environmental hazards, and more. This is a disclosure state for known defects: silence about a known material defect is itself a violation and a form of misrepresentation.

Radon — a Delaware Mandate (not just "recommended")

Under 6 Del. C. § 2572A, every purchaser of residential real property must be notified that the property may present a potential for radon exposure, and the seller must provide any radon test or inspection results in their possession and disclose known radon hazards. The Department of Health and Social Services develops the written radon information the broker delivers to the buyer.

Other Material-Fact Disclosures

Underground Storage Tanks (USTs)

Many older Delaware homes have heating-oil USTs. Known tanks — and known removed/abandoned tanks or contamination — are material facts for the Seller's Disclosure. Tank leaks create cleanup liability that can fall on current and former owners, so a Phase I environmental assessment is common when a tank is suspected.

Septic and On-Site Wastewater

Delaware regulates on-site wastewater treatment and disposal systems (OWTDS) through DNREC (the Department of Natural Resources and Environmental Control). The seller must disclose the type of sewage system; permits are required to install or repair systems; a known malfunction is a material fact.

Water Supply

Coastal and Special Topics

Delaware's beaches (Sussex County, Rehoboth, Bethany) create extra layers:

Condominiums and Common-Interest Communities

For resales of condos and other common-interest communities, the seller must provide association/resale documents (budget, fees, rules, and financial status) and the buyer gets a statutory review period with a right to cancel within that window if the documents are not timely provided.

Trap: Earthquakes, volcanoes, and avalanches are not Delaware risks; the coastal exam answer is flood zones and NFIP insurance, not seismic hazards.

Disclosure vs. Caveat Emptor — Delaware's Position

Older common law followed caveat emptor ("let the buyer beware"). Delaware has moved firmly toward mandatory written disclosure for residential sales through the Buyer Property Protection Act. A seller cannot hide behind "the buyer didn't ask." Once a defect is known, it must be reported on the Seller's Disclosure of Real Property Condition Report. The licensee's parallel duty is to disclose known material facts to all parties; staying silent about a leaking UST or a failing septic field to protect a sale is both a disclosure violation and a misrepresentation under Chapter 29.

What Counts as a "Material Fact"

A material fact is one that would affect a reasonable buyer's decision to purchase or the price they would pay. Classic Delaware examples:

• A known failing or undersized septic system or a non-permitted alternative system.
• A leaking or abandoned heating-oil UST and any soil contamination.
• Well water that has tested positive for bacteria or high nitrates.
• Prior flood damage or repeated water intrusion in a flood zone.
• A structural defect, roof failure, or active termite infestation.

Mold, Asbestos, and Older Homes

Delaware has many pre-1978 and mid-century homes, so beyond lead paint, licensees encounter asbestos (old insulation, floor tile, siding) and mold from moisture intrusion. There is no separate Delaware testing mandate for these, but known problems are material facts. The prudent practice is to recommend the buyer's own professional inspections rather than the licensee opining on a hazard outside their expertise.

Stigmatized Property and Death Disclosure

Many states limit disclosure of "stigma" events. As a practical and defensible Delaware approach: a physical/material defect must be disclosed, while non-physical "stigma" facts (such as a prior occupant's death from natural causes) are generally not required to be volunteered — but a licensee must never lie if asked a direct question. "Don't volunteer stigma, never misrepresent a known fact" is the safe operating rule.

Exam anchor: Delaware is a disclosure state for known defects, not pure caveat emptor. When a question pits "say nothing" against "disclose the known problem," the correct answer is to disclose the known material fact on the statutory form.