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Contaminated soil from home heating fuel oil could result in costly clean-ups for homebuyers

Friday, August 10th 2007 11:06:00am

To the Editor:

Here is the next bi-monthly column (August 15, 2007) by Environmental Law Specialist Dianne Saxe.  These columns, distributed on or before the 1st and 15th of every month, are available for publishing at no charge, provided Dr. Saxe is cited as the author.  She can be contacted at (416) 962-5882 or admin@envirolaw.com.  For more information, see www.envirolaw.com .


Contaminated soil from home heating fuel oil could result in costly clean-ups for homebuyers


Many older homes that were once heated with oil, or still are, had big tanks by the side of the house, buried underground or in the basement.  These tanks held enough oil to keep families warm throughout the winter.

But whether an old tank is still there, or was removed long ago, escaped home heating oil could be polluting soil and groundwater, something homebuyers should know about before signing a purchase agreement.  The problems are particularly acute in cottage country and other areas where people rely on wells for drinking water.

A small amount of fuel oil can contaminate large volumes of water for many years, while clean ups are difficult, expensive, slow and unpredictable.  One cup of fuel oil can contaminate enough water to fill an Olympic-size swimming pool, and in many cases, hundreds of litres of oil seep into the ground before a spill or leak is even discovered.

So for any house that was ever heated with oil, it's essential to know where the oil tank was located, when it was taken out, or if there is still a tank buried somewhere.  Often, when old tanks are removed, they are found literally full of holes, leaving big puddles of oil in the excavation.  It's also important to know what tests were done around the old tank to make sure that any contamination has been properly cleaned up.

Prospective homebuyers need to ask detailed questions about past and present oil heat, and to put appropriate conditions in their purchase agreement.  If not, they risk being stuck with costly clean-ups in the future.  As well, sellers must answer the questions honestly.

In one recent case, Dupere v. Evans (see www.envirolaw.com), buyers refused to close the purchase of a house that was heated with oil.  After they agreed to buy the property, oil was found in the groundwater, meaning additional tests would be needed for at least 2 years. There had also been a recent oil leak under the steps.

The judge ruled that while the seller didn't know about the contamination at the time the Agreement was signed, they were obliged to provide the information when it came to their attention, as it was highly material to the state of repair of the property.  The buyers, in this case, were able to get their deposit back because the sellers didn't immediately tell them about the problems when they found out about them.

When purchasing a home that was or is heated with oil, it's best to ensure the purchase agreement requires a certificate from a certified consultant confirming that soil and groundwater of the property are free of oil, and that the property meets all applicable standards for residential use.


Dianne Saxe, one of Canada's leading environmental lawyers, is a Certified Specialist in Environmental Law and member of the Ontario Bar Association Environmental Section Executive.  She also holds one of Canada's only Doctorates of Jurisprudence (PhD) in environmental law.

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