FAQs About a Home Seller's Guide to Septic Systems and septic system testing.

This article series gives advice for home owners who are selling a property with a septic system, including useful information that you can prepare and provide to a home buyer, septic system testing, and making septic system safety repairs before even listing a property for sale.

Frequently Asked Questions (FAQs) about selling a home with a septic tank

These questions and answers about selling a home with a private septic system or septic tank were posted originally

at HOME SELLERS GUIDE TO SEPTIC INSPECT - be sure to also check out the advice given there.

Question: Our first septic system test failed, the second one that was less thorough passed. The buyers want a whole new septic system. What should we do?

I am curious what you would say about my current situation. I'm in the middle of an inspection w/ buyers. The first septic inspection failed a flow test. We have had no issues [with our septic system] in the 13 years we've been in the house.

The system is old [built probably in ] 1965. We've found no map of the field and no one has found the field.

We had a second opinion inspection without a flow test [septic loading test]. The septic system passed [this second procedure]. Tank was emptied and inspected. He said he found no high water marks. No damage found to tank.

Buyers wanted another opinion so our agents hired a company- this company failed the system. Used a camera in the out pipe which was holding water and followed it down to a place on the lawn just staring to green up and found the soil there saturated.

They said the system was about to fail, but couldn't located any leaching system. No break out or odor. They also claim to have found a hairline crack in the septic tank. Now the buyers want us to replace the whole system, septic tank included and to use the company that last inspected! What do you think? I think it stinks, but my lawn doesn't.

p.s. The buyers are planning on renovating and adding a bathroom w/ a hot tub style bath

Mike in Connecticut

Reply: Avoid a future dispute, find out what repairs are really needed, fix or escrow

A septic loading and dye test cannot find all possible septic problems but it can find enough to be worth doing, and if the septic loading and dye test was properly performed, it can protect both buyer and seller from a later dispute.

The legal question of what you should do in the case of a failed septic system is one to take to your lawyer.

That said, my OPINION is that these are some points to consider:

• Whenever an inspection finds an apparent need for repair at a property, it is risky to then order a second inspection that argues that the repair is not needed after all. True the first inspection could have been faulty. But in the case you describe, the second inspection was less thorough and less rigorous.
  
  Now if you ask a buyer to rely on your information and not theirs, you are inviting a future dispute.
• But a failed septic test is not a complete system diagnosis.
  
  Without further investigation we don't know if the failure is a rather minor repair (fix a clogged pipe or level a tipped septic distribution box), or a major repair (the drainfield is saturated and needs replacement).
• If your buyer is obtaining a mortgage it is often the case that the bank won't make the loan if the septic system is not working, so the property could be tough to sell in "broken" condition.
• If you are unable to obtain a reliable investigation that determines what repair is actually needed before the sale closing date, one option is to escrow an agreed upon amount that is the maximum you and your attorney agree you are willing to pay for septic repairs.
  
  The closing of sale may be able to proceed, repairs can be made and paid for out of the escrow fund, limiting your exposure to that total. In my experience it would be uncommon for a seller to have to pay for septic system improvements or expansion such as may be required if the buyers are adding a bathroom. So it's important to focus on the scope of and limits on your portion of the responsibility.
• Finally, if an inspection discloses unsafe conditions at a property they should be repaired immediately, and until repair is possible, the dangerous area or component needs to be secured - keep people away.

- DJF - editor.

Question: home buyer troubled by improper septic test at time of purchase & later septic system failure

(Mar 30, 2014) Tim said:
We purchased our 3 bed, 2.5 bath home from a single man in mid-winter. The seller had the septic tank emptied and tested during the previous summer and it passed. After we moved in (mid winter)I immediately started smelling a septic smell but assumed it was a neighbors tank.

We had no problems the following summer and then again I smelled the effluent the next winter because we had a very wet winter. I discovered the cleanout cap was off and effluent was backing up and spilling over. I was immediately suspicious that the previous owner had problems and had played dumb.

I dug up the tank caps the next summer and a trustworthy private septic inspector said all looked well. I picked up a leach field map from our town hall and realized the love before us had planted a tulip tree on one of the leech lines. I cut down the tree and have diverted grey water from the house.

There's also a large deodara cedar planted about 10' from the same leech line. I'm going to eventually dig up the D box and see if the roots have grown down the leech line and into the D box. In the winter, especially when it rains, wastewater from the house flows into the tank and immediately out of the tank caps.

I think the previous owner knew about this and I'm suspicious that the owner's realtor may have known. We can't afford repairs and the town we live in is known for city inspectors failing systems. I wish I had figured out the problem more quickly because I think I could have pursued legal actions against the previous owner and maybe the realtor.

Who would I contact to anonymously ask for an investigation of the Real Estate company that we bought our house from?

Contacting our town would backfire and we'd have to spend big money on repairs. Should I contact the county, the state? I need to do it anonymously. Thank you for any help! Tim.

Reply:

Tim,

Sorry to read about the unfortunately not-unusual septic system failure aggravation.

The presence of cleanouts does not itself assure that a seller knew about the problems you describe, but other site clues could indeed show whether there had been a history of backups and failures as might septic pumping company or excavator recorsds.

I'm doubtful that you will ever get to first base on going after the seller or the realtor unless you can come up with an actual document existing from the time of sale or just before the sale proving that either party knew of and failed to disclose a substantive defect.

Real estate law protects realtors from having to disclose defects that the agent can simply indicate was not disclosed to them by the seller.

Caveat emptor applies in-spades to real estate purchases. The question remains whether or not you had an adequate septic inspection and test prior to buying the home.

Question: when buying or selling a home, who should pay for septic system inspections & tests?

(Nov 16, 2014) Anonymous said:

Who pays for pumping or inspection?

2 Feb 2015 Krystal said

The seller is trying to make us (the buyers) pay for a septic test. Why would he want to do that?

Reply:

Anon:

The person ordering the inspection or test. In the purchase of a home normally that would be the property owner as a buyer may have no right to order work on a property that she does not own.

Krystal:

Well he's pretty smart your seller, or he/she got proper advice from a realtor or attorney.

• First: s/he doesn't want to pay for something that's up to you to find out - unfortunately in real estate the burden of checking out a property is normally on the buyer. Sometimes a seller may agree to cover some costs as a marketing incentive but in my OPIINION the costs of such tests is so trivial compared with the risks and house costs involved as to be irrelevant.
• Second: the seller may understand that if he performs ANY test and then gives you the result he or she is accepting risk and liability for defects that you may discover later and that you may argue should have been found by the test. The seller is not a disinterested party to the transaction.
• Properly you should pay for tests so that you are in control of the hiring of the test consultant, so that you can be confident that there are no conflicts of interest involved, and so that you are legally entitled to receive the test result as well as to follow up with the test consultant should questions arise.
• You might want to read HOME BUYERS GUIDE to SEPTIC SYSTEMS to understand how you should proceed.

Question: After I lived in my New House for a few months I had the Septic Inspected and it Failed - but the septic system "passed" when I made the purchase two months before.

How could they sell a home with a bad septic?

How could the first inspector pass and the second inspector fail my septic system?

I purchased a home in Rochester, NY in February 2012. No one had been living in the house for around six months so the bank requested $7,500 escrow. Once I lived in the house for 1-2 months I was told to get the home inspected and once passed I'd get the escrow money returned.

I got it inspected and it failed. The tanks in there are 500 and 300 gallons and are made of steel and have concrete covers. The tanks are from around 1968 when the home was built. The house was inspected and I was told it was fine. I never saw the inspection report but my lawyer did.

Do you know the NYS laws that cover this? How could they sell a home with a bad septic and how could it have passed inspection?

Company "A" Septic Tank Service inspected it on 7-5-11 and didn't note any problems. The bank then wanted it inspected again and the same company did it for them again on 12-12-11. Again nothing noted that anything was wrong with it. I was told the last time it was emptied was July, 2010.

I hired Company "B" to inspect the tanks and he failed them on 4-4-2012. He said the tanks were old and rusted and could cave in at any time and that the lines going into it were rusted and leaking. Both of these gentleman have been in this business for years and years and are know for their expertise.

Company "B" said when he went for schooling at Delhi they said that steel tanks were banned and not allowed since 1968. I believe him and trust him and feel he's looking out for my welfare and obviously Duane Marshall was looking out for the welfare of the sellers of my home.

Now what do I do? Is there a law that states it should have been changed over before the home closed? How could Company "A" pass it when Company "B" did not? I know that in two months the condition of them couldn't have deteriorated that much.

Please help. I don't know what to do or how to proceed. My lawyer seems to think I'll be lucky if I get the sellers to even cough up half of the $4,000 that Company "B" said it will take to replace it. The seller worked for and was a leader in a labor union his entire life. You can't tell me he didn't know and realized what he was selling and doing to me. I'm looking for any direction and/or help/laws to assist me?

- [Anonymous for privacy ]

Reply:

A competent onsite inspection by an expert usually finds additional clues that help accurately diagnose a problem or evaluate the condition of a system - certainly not something I can accomplish by email. .
That said, here are some things to consider:

In my OPINION, if you did not receive an adequate or honest inspection and report of the condition of the property and its septic system before it was purchased, whomever steered you to an inspector who didn't do the job gave you very bad advice. So you may have three parties against whom you have complaint: the seller, the inspector, and the realtor.

You will want to consult your attorney again, or if necessary find one familiar with real estate law and financing, for an authoritative answer about what you can or cannot be compelled to do. Those are legal questions.

My OPINION is that the terms and conditions of financing you cite are levied by the lender, your bank, and the specifics are not regulated by law. But it is my OPINION and experience that if there is a case of failure (errors and omissions) or real estate fraud, you may be entitled to some financial relief.

There is no doubt that there can be very serious conflicts of interest in real estate transactions. A home inspector or septic inspector who depends on real estate agents for referrals is serving two masters - his client (you) and the realtor (his "real" client).

The inspector may not want to get in trouble with you, but s/he doesn't want to upset the real estate agent or referrals will stop. Stop dead.

In the home buyers septic system advice

article HOME SELLERS GUIDE TO SEPTIC INSPECTIONS

I include CONFLICTS OF INTEREST AT SEPTIC SYSTEM INSPECTIONS

• It's no surprise that two different septic "experts" would make different findings of the condition of the septic system, depending on how thoroughly and carefully they did their job.
  
  Some "defects" permit an honest difference of opinion - such as "how many years more might my roof be expected to last" because experience and judgment come into play. Other "defects" or facts are unambiguous. A septic tank is steel or not; its baffles or lid or tank are rust perforated, damaged or missing, or not.

I expect your attorney, realtor, and any other expert to confirm that there is no law in New York that would have required a  property owner to replace a working, functional, steel septic tank after a certain date. However if a septic system is not working, it may violate local or state health department regulations and when that failure is discovered it would at that time require proper repairs.

At this point your priorities should not be on litigation or arguing, but rather on finding out exactly what will satisfy your lender, how to get that work performed, and how to make sure that your home and all of its systems are safe, sanitary, and functional.

On 2015-09-18 by (mod) -

To the commenter who used foul language as his "ID" - your comment is deleted but you're welcome to try again more politely.

On 2015-08-06 by (mod) - Legal questions about who does what to the septic system at the time of sale of a property

Anon:

Legal questions about who does what at the time of sale of a property are questions to ask your lawyer and to review under the terms of your sales contract.

My OPINION is that I would not normally recommend that a seller have the septic tank emptied before a sale.

My concern is a later charge of fraud that could be levied against the seller when the buyer, after moving in, discovers that the septic system is in failure, needs a costly replacement, and claims that by emptying the septic tank before purchase the seller prevented the buyer from performing a reasonably reliable septic inspection and test.

IF a seller agreed to foot the septic tank cleanout bill as a perk or benefit to be granted to the buyer during sale of a property, that step should still not be taken before all inspections and tests have been performed, and the seller would be smart to obtain indemnity against a septic pumper who leaves a dug up mess or other problem.

My OPIONION is it'd be smarter to allow a buyer to take steps that are in buyers's interest to perform themselves (or have performed by people they hire) so as to avoid any possible conflicts of interest - thus grant the cost rather than doing the task.

The EXCEPTION I'd make to this advice would be a septic inspection, test, or cleanout that was necessary to assure that the property can safety be walked-on, inspected, or otherwise examined by people who are prospective or actual buyers.

Watch out: Safety is critical - as you don't want someone walking onto a property to fall into (and die from falling into) a septic tank that was not safely covered.

On 2015-08-06 by Anonymous

Is it the sellers obligation to empty septic tank before sale

On 2015-07-12 by (mod) -

It mat be perfectly acceptable to fill in the tank with rubble rather than removing it. If it contains sewage that gets removed first,

On 2015-07-12 by Lisa

Yes, after an exploratory dig, turned out to be a metal septic tank. We will have it removed.

On 2015-06-28 by (mod) -

Indeed you could be describing a buried steel septic tank. Because an improperly-abandoned tank (not emptied, not filled in with rubble) can lead to collapse, injury, or worse, it's worth a bit of excavation to be sure that the tank is identified and properly abandoned.

On 2015-06-28 by Lisa

FYI forgot to mention house was built in 1959

On 2015-06-28 by Lisa

Buyers of our house had both a septic inspector & oil tank inspector. (Oil tank was removed in 1996 prior to us buying house). Septic inspection showed no problems. Oil tank inspector found a 'suspicious metal object' in the back of the house about 20' from where our sewer line exits the house, leading me to believe this object would be septic related. Town switched to city sewers in late 1960s. Any guess what this metallic object exactly where you would expect a septic tank could be?.

On 2015-06-05 by Bob Could it be that this old house has what is called "A soil absorption field".

Thanks for your reply. Could it be that this old house has what is called "A soil absorption field". A system of underground perforated pipes on a gravel bed? All around me is farm land with no river to drain to.

I know my Father-in-law has a farm nearby where the drains go underground , even under the highway, to a cesspool area buried underground. But I have never found anything similar here. It just disappears with no tank or pumping.

If there was an old unknown tank, and it broke thereby never needing pumping, could it just be filtering into the ground? The soil in my area is all rocks and gravel. Wouldn't there be some sign of failure?

On 2015-06-02 0 by (mod) -

Bob,

Most drainfields and septic tanks are underground.

And indeed I've come across some that were built very well and in soils with excellent drainage that lasted 50 years or longer. I've also found homes where the owner was unaware of a septic failure because for decades sewage had been directed to a nearby stream or storm drain - an illegal and improper practice. So bottom line is we don't know what's happening at your property.

There are some more subtle but more worrisome risks than an incipient drainfield failure or peeing in the neighbour's well. We don't know the security and strength of the septic tank cover. On occasion a 30 or 50 year old septic tank collapses when its timber or steel lid rots or rusts through, and worse, if someone falls into the tank that's usually fatal.

Prudent would be to find and investigate the condition and safety of the system. But I acknowledge that the moment a septic contractor sets foot in your yard she or he is going to want to fire up the backhoe, rip the hell out of the whole property, and generate a big bill no matter what.

The absolute minimum one would do would be to remain vigilant for signs of a subidence or collapse, realizing that such a condition could kill someone.

On 2015-06-01 by Anonymous

I meant to type "field" underground. Some kind of weeping system of filtering perhaps?

On 2015-06-01 2 by Bob

My house is over 150 years old. I've lived here thirty years and I have never had any problems with the plumbing. Honestly I don't know where it goes. I've never found a tank, and never had anything pumped.There has never been any smells, back up or problem.

None of my neighbours ever have a septic truck come by either. Could it be that in the old days they just built some kind of drain filed underground?

On 2015-04-13 by (mod) -

Ruth:

The bottom line answer has to come from your attorney and will be answered based on local laws and your real estate contract. My OPINION is that in most areas there are few laws that require that a seller fix anything when selling a home, and disclosing the situation avoids a later dispute.

However even without force of law, you may find it difficult to sell a home with substantial, costly functional or safety defects because your buyer's bank won't be willing to loan money on a non-functional (incomplete) home.

Even if you find an "all cash" buyer, if the buyer has any sense (or if their attorney does), the all cash buyer will apply the same standards of care as if she were financing through a bank. Otherwise she may find that at her own re-sale time she can't sell the home either.

There are usually ways around this problem that can be negotiated with help from the bank, attorneys and real estate agents. For example a buyer can obtain an allowance on the purchase price to cover the repair and obtain a bridge loan to make the repair. The bridge loan converts to an addition to the mortgage when the repair is completed.

Watch out: if the septic system is unsafe or a health risk to people visiting the house to examine it as prospective buyers you must address that hazard.

You might also ask your agent the impact on marketability, not just price but time on market, when showing a home in which no one can flush a toilet.

Watch out: if visitors flush toilets and cause a sewage backup your home could face major damage.

On 2015-04-09 by Ruth

Can a person sell a house that has a bad septic by disclosing it when they list it and taking the loss? Or offering to fix it with the sale of the home?

...

Continue reading  at HOME BUYERS GUIDE to SEPTIC SYSTEMS, - what advice do we give to buyers of a home with a private septic system?or select a topic from closely-related articles below, or select a topic from the closely-related articles below, or see the complete ARTICLE INDEX.

Or see HOME SELLERS GUIDE TO SEPTIC INSPECTION FAQs-2 - more-recent questions and answers about selling a home with a septic tank and drainfield.

Or see these

Recommended Articles

• SEPTIC SYSTEM TEST BASICS - quick guide for buying a home with a septic tank
• HOME BUYERS GUIDE to SEPTIC SYSTEMS - complete guide to buying a home with a septic tank
• SEPTIC SYSTEM TROUBLE: WHAT GOES WRONG
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• PRE-PURCHASE SEPTIC DYE TEST
• SEPTIC TEST FINAL OVERVIEW
• SEPTIC DYE SOURCES, SAFETY, TOXICITY, STAINING, MSDS
• SEPTIC FAILURE LAWSUIT
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• SEPTIC LOADING & DYE TEST PROCEDURE - home
• SEPTIC TANK PUMPOUT TIMING ERRORS

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