Septic law’s impact on home sales reviewed

Should it be the health board’s job to require home sellers to get a septic system inspection — which could show that the system has to be upgraded if it’s too small for the number of bedrooms the house has?

That’s one question that some board members working on a septic law revision are struggling with.

Health board member Cindy Wolpert — who’s a nurse as well as a lawyer — said she can see both sides of the argument. The health board’s role is to protect public health, and a septic system that is taxed can fail, causing wastewater to leach.

On the other hand, it should be the responsibility of the buyer and his or her agent to have an inspection done to know whether or not the house is going to serve their needs, she said.

“I can see the benefits of having this inspection on the one hand. But I also see something I’m not comfortable with, which is the health department saying, ‘You’ve got to have an inspection if you’re going to sell your house,’” she said. “I agree with full disclosure. I think every buyer should know what that house’s septic system can support and decide, ‘Can I live with that,’ or else I shouldn’t buy that house.

“I also can see that some buyers are not very responsible, maybe, or are risk-takers.”

At the third work session between the Brown County Commissioners and Brown County Board of Health on April 5, “dealbreakers” were discussed — parts of the county septic ordinance that might shut down all efforts to pass it.

The septic ordinance hasn’t been fully revised since 1997. An attempt in 2012-13 did not go into effect because of a legal technicality.

The point-of-sale inspection was discussed as a possible dealbreaker, but not all board members were convinced that it was.

Health board member Cathy Rountree said she had heard concerns from members of the public about having to upgrade their septic system if they were trying to sell an older home that had an undersized septic for the number of bedrooms.

Allowing homeowners in that situation to sign an affidavit was one possible compromise. Perhaps that owner could state in writing that only a certain number of possible “bedrooms” were to be used as bedrooms, because that was the number the septic system would accommodate.

“It could really equalize the treatment of new homes and old home sales,” Rountree said. The current draft allows such an affidavit to be made by a person who is building a new home.

“You might as well throw it out, then,” septic installer Tim Ford said about the ordinance. “Everyone’s going to say, ‘We’re not going to use these as bedrooms.’”

The reason for adding a septic inspection at the point of sale was that it was a way to catch possible problems without waiting for people to file complaints on their neighbors. Right now, the health department gets involved if a complaint is filed, if an owner applies for a permit to renovate or add onto a house which involves plumbing work or new bedrooms, or builds a new house.

State code already requires a health officer to sign off on any permit that involves “expansion or remodeling of a residence that may increase the number of bedrooms or the DDF (design daily flow).”

However, that wasn’t always done for a variety of reasons, including lack of communication between the building and health departments.

Prior to 1985, records of septic systems are pretty limited, said health board member Linda Bauer. Another reason for adding the inspection requirement was to help fill out the health department’s records, she said.

“We’re trying to play catch-up with something that should have been fixed before,” health board member Thomi Elmore said.

The board also mentioned possibly exempting homes that had septic system records on file from getting a new inspection.

“We have to make some kind of compromise, because people aren’t going to sell or buy houses because they’re going to be afraid,” Elmore said.

Real estate agents in the audience asked that the board not penalize a home seller for additions made by a past owner who didn’t upgrade the septic to accommodate them.

“We need to be addressing failing septics. That should be a priority of the department of health and the county,” said Lex Fay, a representative of the Metropolitan Indiana Board of Realtors. “But there’s a fine line between addressing failing septics versus mandating inspections and addressing functioning septics.”

“When a system is working, a person shouldn’t have to pay out $20,000 to upgrade it,” local real estate agent Phil Shively said. “It will kill the deal.”

Environmental health specialist John Kennard said of 15 new listings he had studied in Brown County, six had no septic information on file with the health department, and seven had more bedrooms marketed than the septic system was sized to serve. One was properly matched between bedrooms and septic size, he said.

“This issue with septic systems has been going on in the paper publicly for months, and you still have one out of 15 listings that are matched up to the septic. So what’s wrong with the picture?” he said. “You’ve got 14 people that could potentially buy a house in this county with an undersized septic.

“It’s not going to make any difference if you sign a disclosure that ‘I’m only going to use two of five bedrooms,’” he said.

“If you don’t change the oil in your car, eventually you’re going to have to put a new motor in or buy a car. All we’re trying to do is prevent the environmental issues that are going to bite you eventually.”

Members of the public were told to wait until the commissioners and health board had discussed the ordinance among themselves before they were allowed to comment or answer questions those boards had voiced.

In addition to suggesting that the boards change their procedure, speakers asked that they formalize what methods for septic system inspection would be used.

They also wanted to see a written explanation of what happens to a resident or homeowner when a septic failure or problem is found.

In answer to a question from the Brown County Redevelopment Commission, Bauer said if homes have to be sold with fewer bedrooms, that will have no effect on the amount of property taxes the county collects. Assessed value for tax purposes is calculated differently than market value for sales, said Bauer, who is an assessor and real estate agent.

Real estate agent Bob Kirlin said the board is discussing two different things that aren’t necessarily tied to one another: Failed septics, which he said must be fixed, and low-income housing, which is in short supply.

“If we start inspecting these undersized septics that work — and the key word is ‘it works’ — but if you say, ‘You cannot buy this house’ — which is what you’re indirectly saying — because it is undersized, we are going to kill any home under $150,000,” he said.

Bauer said it should be even more important for those buyers to know what they’re buying before they buy it.

Commissioner Jerry Pittman said he had a problem with “the county becoming a consumer protection advocate.”

He said it’s clear there’s a problem, but because no one has complete records about how many failed septics there are in the county, “you have to come up with a solution to a problem you can’t find. We know there is a problem, we just don’t know how big it is.”

The health board will meet for another work session at 6 p.m. Tuesday, April 18.

On the Web

Read the newest version of the draft septic ordinance at

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Sara Clifford has been raising a family in Brown County since 2005 and leading the Brown County Democrat since late 2009. In addition to editor, she is the beat reporter for town government and writes columns, features and general news stories.