By Scott Mayerowitz

BARRINGTON -- Sitting on more than an acre of land in Barrington's Nayatt Road section, the 5,300-square-foot house had a billiards room, sitting room, solarium with greenhouse windows and a full-size tennis court with viewing grandstand. It was built as the carriage house of a banker's estate around 1890. The great room -- with a 28-foot-high cathedral ceiling -- featured an enormous brick chimney, connected to the basement fireplace where the blacksmith used to forge horseshoes. In 1972, it was turned into a residence. Benjamin S. Vogel, a Providence obstetrician-gynecologist, and Renee G. Vogel, a pathologist who later went into law, purchased it in 1975. Twenty-four years later, with their children grown, the Vogels decided to sell the house at 12 Clarke Rd., listing it for $695,000. On March 27, 2000, Lawrence and Louise Gozzard, of Foxboro, Mass., offered $615,000 for it. The bid was accepted and a purchase-and-sales agreement was executed. The Gozzards submitted a deposit of $30,750. BUT THERE WAS ONE invisible barrier remaining to the sale. On April 4, John Gagnon, of Second Opinion Home Inspections of New England Inc., inspected the house. Among other things, he left canisters in the unfinished basement for three days to test for radon. The 1,600-square-foot basement had a dirt floor, no heat, basic lighting and a small concrete slab that housed the water heater. The tests showed that the basement had radon levels above the federal Environmental Protection Agency's safe standard. The Gozzards informed the Vogels' real estate agent, Isabel "Micki" Gold, on April 13 that they were not going to buy the house because of the potential health threats and added expense to deal with the radon. The Vogels then hired their own radon tester, Douglas Hoagland, who checked the radon levels on the first floor. Those levels were below the EPA standard. Hoagland said that he could install a device that would mitigate the radon for $1,250. Hoagland also said that he believed the test done by Gagnon was not done to EPA protocol and that the mitigation was not necessary. In July 2000, the Vogels sued, saying that the radon was not a danger and that the Gozzards therefore had no reason to break the agreement. Two months later, they sold the house to Alex and Doris Bally -- the current residents -- for $595,010. The Vogels purchased a home at 65 East Orchard Ave., in Providence, for $742,000. The lawsuit moved forward with the Vogels seeking the difference in sale price and damages related to the delay in the sale. Last month, U.S. District Court Judge Mary M. Lisi ruled in the Vogels' favor, saying that the Gozzards' test was wrong. She ordered the Gozzards to pay more than $68,000 in damages plus more than $14,000 in court costs. TWENTY-THREE PERCENT of Rhode Island houses that are tested for radon have levels higher than the EPA standard, according to Marie Stoeckel, chief of the state Department of Health's office of occupational and radiological health. Stoeckel said the department does not give out data for individual municipalities or neighborhoods because it wants everybody to be aware of radon. She also said the presence of radon can vary from house to house. Radon is a naturally occurring radioactive gas that is odorless, colorless and tasteless. It comes from the natural decay of uranium that is found in nearly all soils in the country. Normally, the gas seeps out of the ground and dissipates harmlessly into the air. But in some cases, the gas seeps into houses, becomes trapped, and builds up to levels that can be unhealthy. Stoeckel said that exposure to radon can lead to increased risk of lung cancer. According to the health department, nationwide about 14,000 people a year die because of radon exposure. Radon can seep into the house through cracks in the foundation or through wells. Poor ventilation can lead to a buildup. If a radon test has been done, Stoeckel said, state law requires the homeowners to disclose any information about radon there to potential buyers. Stoeckel said that there are several ways to remove the radon. In new houses, pipes can be laid under the foundation to vent out the gas before it enters the building. The health department recommends that new houses be built with radon-resistant construction features because they are cheaper than venting out the gas from an existing home. Sharon Steele, president of the Rhode Island Association of Realtors, said that most buyers treat radon just like any other deficiency in a house. Owners either fix the problem or the sale price is adjusted to reflect the problem. "Generally," Steele said, "they agree to some type of mitigation system and the sale proceeds." Most purchase-and-sales agreements have clauses, Steele said, that say that deficiencies found within 10 days of the agreement signing can trigger new negotiations to deal with the problem. "There is no such thing as a house without issues," Steele said. "[Radon] is one of many, many, many issues." Steele said that buyers have a right to do any inspection they choose and that most buyers include a radon test in the general inspection, along with checks on lead paint, proper roofing, heating system and foundation. AFTER A TWO-DAY, nonjury trial, Judge Lisi concluded that the testing done for the Gozzards was improper and therefore they had no reason to break the purchase-and-sales agreement. The EPA's Home Buyer's and Seller's Guide to Radon says that radon tests should be done in the lowest level of the house suitable for occupancy. Gagnon, who did the testing for the Gozzards, testified that Louise Gozzard had instructed him to put the test canisters in the basement because she intended to use it. He testified that he believed the basement could be used "without substantial renovation." Lisi disagreed and said that Gagnon's test was improper. "The basement had neither finished walls nor a ceiling," she wrote in her decision. "The floor was a packed dirt floor with only a small concrete slab to support the hot-water heater. There was no heat and only rudimentary lighting." Because the test was insufficient, she ruled that it could not "establish a substantial/materially deficient condition" that would allow the Gozzards to break the purchase-and-sales agreement. Lisi ordered the Gozzards to pay the Vogels the $19,990 difference in the sale prices and $5,830.10 for the difference between the 5-percent commission the Vogels would have paid their listing agent, had the Gozzards bought the house, and the 6-percent commission they ended up paying. She also ordered the payment of $22,668.36 for mortgage payments made after the breach of contract, $2,132.50 for home-equity loans during the same period, $8,161.03 for property taxes, $692.88 for homeowner's insurance payments and $512.65 for landscaping costs. She also ordered the Gozzards to pay $1,317 for pest control and $40 for smoke-detector inspections that they had requested of the Vogels. The total judgment was for $61,344.52; however, that was set off by the $30,750 deposit that had been retained by the Vogels. The Gozzards were ordered to pay $7,121.92 in interest on the owed money and pay an addition $14,246.43 in fees that included court-filing fees and more than $9,000 for witnesses. Lisi did not grant requests to be paid for water, gas, telephone, electric or security costs that were incurred after the breach. She also said that the Gozzards did not have to pay for moving or storage costs or lawyer's fees for the Vogels. Last Tuesday, the Gozzards filed an appeal with the First Circuit Court of Appeals in Boston. No court dates have been set.

Published 4/21/2002