A common problem that buyers and sellers can trip over in Newfoundland and Labrador real estate is the issue of illegal septic systems.
In urban areas where there are municipal wastewater services this is a non-issue, so many property owners are not used to thinking about the issue. It’s also possible that professionals like mortgage brokers, real estate agents, and lawyers might sometimes forget to consider the issue of a property’s septic system if they do not often transact in rural or cottage properties.
But in Newfoundland and Labrador many parcels of real estate situated within incorporated cities and towns, and likely a majority of parcels situated in unincorporated local service districts, and finally the vast majority of cabin and cottage properties, rely on private septic systems to handle residential sewage.
The Good Old Days
In the good old days, sometime after people stopped routinely using outhouses, it was sometimes the practice to install an ad hoc septic system to handle the needs of a cabin or cottage property. The province is peppered with the remains of buried 50-gallon oil drums re-purposed as homemade septic tanks. Or, in coastal areas, if properties were sufficiently close to the water, a quaint drain leading to the ocean might have been the answer to getting sewage out of sight and out of mind (an “Ocean Outfall” might still be permitted in some limited circumstances as a last resort).
Sadly, for makers of oil drums, but perhaps happily for people who don’t like E. Coli infections, the good old days ended in 1985 with amendments to provincial regulations.
Current Legislation
Presently, before installing a septic system on a rural property (or any property not serviced by municipal wastewater systems), a property-owner is required to have a design prepared by a designer approved by the (frequently re-named) Provincial Department of Digital Government and Service NL, obtain a “certificate of approval” for the proposed design, and after the system is installed but before it is covered have the system inspected and obtain a “final approval certificate.”
Failing to have a certified septic system means that the system may or may not meet provincial standards, which could in turn impact the insurability of a property or its eligibility for mortgage financing, attract the attention of the provincial government, which may issue fines or orders for the removal or remediation of illegal septic systems, and in the worst case make it impossible to get a building permit. Some parcels of land have physical attributes which effectively make it impossible for a standards-compliant septic system to be approved, for example because the parcel is too small, is oddly-shaped, has poor soil conditions, or is too close to wells or surface water. It is possible to purchase a parcel of land which is effectively unuseable for a residential structure if the physical characteristics of the parcel make a legal septic system a non-starter. For an unwary buyer, that beautiful piece of waterfront property you planned to build a dream cottage on might easily become an expensive place to pitch a tent.
For the legislative details as they currently exist, sewage systems are required to comply with the provincial Sanitation Regulations, CNLR 803/96, presently enacted pursuant to the provisions of the Health and Community Services Act, SNL 1995, c P-37.1.
As well, the provincial government maintains a published set of standards, called the Private Sewage Disposal and Water Supply Standards.
Get Advice
If you are building a new residential structure on a rural parcel or buying a parcel of land for that purpose, ask whether it is possible to install an approved septic system on the parcel in a way that accommodates provincial standards and the planned structure.
If you are buying a rural parcel with an existing residential structure ask whether the owner can produce the certificate for their septic system.
If you are selling a rural parcel with an approved septic system dig out your certificate and have it ready to produce to the prospective buyer (who might need it in turn to satisfy their lender if they are getting a mortgage).
If you are selling a rural parcel without an approved septic system, plan A might be to see if the property is old enough to qualify as an “existing development” and be grandfathered in, plan B might be to see if you can bring the property in line with provincial regulations and have your system properly certified (this might involve spending some money on contractors or designers), and plan C might be to find a sucker (OR a buyer prepared to take the property “as is” with the associated risks).
In any of these situations you should consult with your own lawyer. If you are buying or selling a parcel of real estate and are looking for legal advice, feel free to contact us to discuss.
Adam Baker Law Office 