For Sellers and Agents
Radon Disclosure in Alabama: what sellers and agents must know.
The short version: Alabama has no radon disclosure form and doesn't license radon pros — but the Alabama radon disclosure picture is bigger than that headline. Alabama's "buyer beware" rule (caveat emptor) has a health-and-safety exception the courts spelled out in Fennell Realty Co. v. Martin; agent conduct is governed by Ala. Code § 34-27-36; NAR Article 6 covers fee disclosure; and any mortgage-financed home purchase falls under RESPA §8 (the federal law that bans paying kickbacks for referrals). This page walks all four in plain English, so a managing broker knows what to check before signing off on a testing partner.
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Alabama statutes requiring radon disclosure
§ 34-27-36
Alabama code governing agent conduct
RESPA § 8
federal rule banning referral fees
Buyer Beware — With Limits
The caveat emptor doctrine, and its recognized limits.
Alabama applies caveat emptor — buyer beware — to used homes. In plain English, that means a seller doesn't generally have to volunteer problems with the house, and Alabama doesn't hand sellers a state disclosure form to fill out (including for radon). That's the default rule. But the default rule doesn't hold in every situation, and the exceptions are what actually shape real deals.
The exceptions, as laid out by the Alabama Supreme Court in Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala. 1988):
- The health-or-safety exception. If the seller knows about a serious defect that affects health or safety and knows the buyer wouldn't easily catch it, caveat emptor doesn't protect keeping it quiet.
- Fiduciary relationship. If there's a fiduciary relationship between the parties (a special legal duty of trust).
- Direct question. If the buyer asks about a specific condition, the seller has to answer truthfully and completely.
Radon fits neatly inside the first one: it's invisible, odorless, only detectable with an instrument, and a well-known health-and-safety concern. Once a seller actually knows about a bad radon result on the property, "buyer beware" stops working as a shield. This isn't a written-in-statute problem — no state form to check — but it's exactly the situation that produces lawsuits, not the missing form.
This page explains Alabama law in plain English. It's not legal advice for a specific deal. For a real transaction, talk to a licensed Alabama real-estate attorney.
Alabama's Rules For Agents
Ala. Code § 34-27-36(a): what governs the licensee.
The Alabama Real Estate License Law — Ala. Code § 34-27-36(a) — is the list of conduct that can get an agent fined, suspended, or their license pulled by the Alabama Real Estate Commission. Two lines on that list matter directly for the radon conversation:
- § 34-27-36(a)(12): paying or receiving any rebate from anyone in a real-estate transaction. A per-deal payment from a testing vendor to an agent sits squarely in the situation this provision was written for.
- § 34-27-36(a)(14): a salesperson or associate broker taking payment for anything requiring a real-estate license from anybody other than the qualifying broker. A vendor paying an individual agent directly (not through the broker) is a state-license problem all by itself, separate from the federal one.
AREC's own guidance elsewhere treats incentives tied to a transaction as things that have to be disclosed to everyone involved. The safest position for a listing agent: no vendor-to-agent payment on radon testing, any relationship with the tester disclosed in the file, and the tester's credentials on record. That's the posture we build our workflow around, without exception.
NAR Code Of Ethics
NAR Code of Ethics — Article 6 and the disclosure duty.
For any Realtor member, the NAR Code of Ethics adds a second layer on top of state law. Three articles carry the radon-testing conversation:
- Article 1 — a Realtor protects and promotes the client's interests.
- Article 2 — a Realtor doesn't misrepresent or hide important facts about the property or the deal, and that duty applies to facts anyone could reasonably find.
- Article 6 (and SOP 6-1) — a Realtor has to tell the client about any money or benefits (other than real-estate referral fees between agents) the Realtor or their firm gets as a direct result of recommending real-estate products or services.
Radon testing is a recommended real-estate service. Any payment, rebate, or thing of value flowing from a testing vendor to a Realtor or their firm has to be disclosed under Article 6. And disclosure doesn't fix the RESPA problem on a mortgage-financed home sale — even a disclosed vendor fee isn't covered by NAR's agent-to-agent referral-fee exception. The cleanest position ends up being the same thing state law pushes toward: no fee to the agent at all.
Federal RESPA §8
Federal RESPA § 8 and our no-referral-fee stance.
Any home purchase paid for with a federally related mortgage sits under RESPA — the Real Estate Settlement Procedures Act. RESPA §8 (spelled out at 12 CFR 1024.14) makes it illegal for anyone to give or receive a fee, kickback, or thing of value for referring settlement-service business. The definition of settlement services (12 CFR 1024.2) expressly includes inspections — including inspections required by the sales contract, which a radon test performed under an inspection contingency plausibly is.
The Consumer Financial Protection Bureau (CFPB) has enforced §8 against both service providers and the agents who took the fees. In the 2017 Prospect Mortgage consent orders, CFPB fined the lender $3.5M and required brokerage-side participants (Re/Max Gold Coast and Keller Williams Mid-Willamette) to pay a combined ~$495K for accepting referral-linked payments. The lesson for a managing broker: vendor referral-fee arrangements create exposure on the broker's side of the table, not just the vendor's.
Our position goes further than the rule requires. We don't pay referral fees to agents, brokers, or any third party in any transaction — RESPA-covered or not, disclosed or not. The reason isn't only compliance. A tester who pays for referrals isn't really independent, and the thing we add to a deal — a report nobody on either side can accuse of being shaded — depends on that independence. What replaces the referral fee is speed, a clean chain of custody, and a lab-read report that holds up under scrutiny.
Why This Protects Agents
Why a documented independent test is a liability shield.
The real risk to a listing agent isn't the number on the test — it's the appearance, months after closing, that something got hidden or shaded. A documented independent test on file cuts that risk down the middle:
- It nails down what was known and when. A dated, certified lab report defines the record. A future buyer can't claim a defect was hidden if the file shows when the test ran, what it read, and who ordered it.
- It keeps the tester separate from the fix. The person who measured the radon didn't install the system. That separation is what makes the number stand up if the transaction ever gets litigated.
- It takes the referral-fee question off the table entirely. If no money changed hands (disclosed or otherwise), there's nothing for AREC, NAR, or CFPB to look at on the agent-vendor axis.
- It documents a health-and-safety response. If a bad result exists, a mitigation record plus a post-install verification test shows the parties fixed it — didn't conceal it.
What Belongs In The File
The five items that belong in the transaction file.
The defensible position for a Birmingham metro listing agent working with any radon tester — not just us:
01
An independent tester
A certified radon pro (NRPP or AARST) with no connection to the seller, the listing agent, or the mitigator. That separation is the whole point of the ANSI/AARST standards — the person running the test can't have a stake in what the number comes back as.
02
The real-estate testing standard
ANSI/AARST MAH-2019: a continuous monitor recording for at least 48 hours, house closed up starting 12 hours before, placed on the lowest living level per the standard. The report should reference the protocol on its face.
03
Chain of custody
A sealed monitor, documented placement and pickup, hourly data preserved ("chain of custody" just means an unbroken paper trail so nobody can claim the monitor was tampered with). If the number ever gets challenged, this is what makes it hold up. If the monitor sat unattended in a home the seller could freely access, that's the weak spot a lawyer will point to.
04
Report delivered to the client
The certified lab report is emailed to whoever the client (buyer or seller) says — usually including the agent and often the closing attorney. Never to the other side first. The report belongs to whoever ordered the test.
05
No referral fee, ever
RESPA §8 (the federal law that bans paying kickbacks for referrals on mortgage-financed real-estate services) makes vendor-to-agent referral fees illegal in most home sales. Our stance goes further than the rule: no referral fees to any party, ever, disclosed or not. A tester who's paying agents isn't really independent.
For the workflow side of running a test inside a 10-day contingency window, see ourfor-agents page. For the buyer-side process, seeradon testing when buying a house in Alabama. For the objection version of the question — is testing even necessary — seeis radon testing really necessary.
Independent, documented, no fees to agents. Ever. $295 flat.
FAQ
Frequently Asked Questions
Does Alabama require a radon disclosure in a home sale?
No — Alabama has no radon disclosure form and doesn't license radon pros either. But "not required" doesn't mean "safe to ignore." Common-law exposure still exists through the health-and-safety exception to caveat emptor (from Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala. 1988)), and through Ala. Code § 34-27-36(a), which governs how real-estate agents are allowed to behave.
Is Alabama a caveat emptor state for radon?
Yes, with real exceptions. Alabama applies caveat emptor — "buyer beware; sellers generally don't have to volunteer problems" — to used homes. The exception that matters for radon is the health-and-safety exception from the Fennell case: if a seller knows about a serious defect that affects health or safety, and knows the buyer wouldn't easily catch it, caveat emptor doesn't protect keeping it quiet. Radon is invisible and can't be detected without a meter — pretty much exactly the situation the exception was written for.
Can a listing agent be liable for not disclosing radon?
Under Ala. Code § 34-27-36(a), the Alabama Real Estate Commission can fine or discipline agents for things like misrepresentation, failure to disclose material facts, or violating the duties they owe. Once a listing agent actually knows about an elevated radon result, the answer starts turning on what the agent does with that knowledge — and the safer path is disclosing it, not sitting on it.
What does NAR's Code of Ethics say about radon?
Three parts: Article 1 says a Realtor has to protect the client's interests. Article 2 says a Realtor can't misrepresent or hide facts about the property. Article 6 (and Standard of Practice 6-1) says a Realtor has to tell the client about any money or benefits the Realtor's firm gets when they recommend a real-estate product or service. Radon testing is one of those recommended services — so any fee, rebate, or perk tied to the recommendation has to be disclosed under Article 6.
Why do you refuse to pay agent referral fees?
Two reasons — one federal, one about staying independent. Federal: RESPA §8 (the federal law that bans paying kickbacks for referrals) makes it illegal to pay fees or things of value in exchange for referral of settlement-service business on any mortgage-financed home purchase. The Consumer Financial Protection Bureau has enforced this against both service providers and agents. Independent side: a tester who pays for referrals isn't really independent — and the whole reason to hire an independent tester is that nobody on either side of the deal can accuse the number of being shaded. Speed, a documented chain of custody, and a report nobody can pick apart are what actually protect the agent's transaction.