Home Builder Bars Buyer Radon Testing : Environment: Major developer is also the first in California to require customers to agree not to hold it responsible if the gas is found after sale.

A major California developer selling homes throughout the Southland is prohibiting potential buyers from testing for radon gas before completing their house purchases.

Pardee Construction Co. also is requiring its customers in California to sign a contract agreeing not to hold the company responsible if the radioactive gas--believed to be the second-most frequent cause of lung cancer in the United States--is found after the sale is completed.

According to officials with the California Department of Real Estate, Pardee is the first major developer in the state to place such restraints on potential home buyers since the radon gas danger was revealed two years ago. Legal experts say the disclaimers could open up a new area of real estate law.

As the public learns more about the radioactive gas, state officials predict that the number of developers asking customers to sign similar disclaimers will rise, especially in Ventura County, where some of the highest levels of radon in the state have been measured.

In the first statewide residential radon study, state researchers recently monitored 385 houses in California, including 15 in Ventura County. Statewide, only 1% of all the houses surveyed exceeded the U.S. Environmental Protection Agency’s recommended maximum radon concentration of 4 picocuries per liter of air. The California average was 0.85 picocuries per liter.

But in Ventura County, where geological factors are believed to contribute to higher surface radon levels, it was estimated that between 10% and 15% of the houses could exceed the EPA guideline. That estimate was based on sampling the 15 houses over a 12-month period.

Using standard statistical techniques, researchers using small samples say they are able to draw conclusions applicable to much larger numbers. A more extensive, yearlong survey of 1,000 homes in the Ventura region is scheduled to be completed by the state in June.

Bernie Yantz, Pardee’s assistant vice president of California sales, said his company began asking customers to sign the radon disclaimers about a year ago after an East Coast developer was sued by a homeowner who discovered radon after buying a house.

“We may be a little extra cautious,” Yantz said. “It’s an extra step we’re taking to protect ourselves.”

Exposure to radon at a level of 4 picocuries for one year represents a lung cancer risk comparable to taking between 200 and 300 chest X-rays or to smoking half a pack of cigarettes daily for a year, according to the EPA. The agency has calculated that 13 to 50 of every 1,000 individuals exposed to radon at those levels over a 70-year span could die of lung cancer. Radon, which is present in soil everywhere, is produced by the natural decaying of uranium.

Yantz said his company does not test for the gas--which seeps up from the ground and becomes trapped in buildings--and has no knowledge of it being present at any of its housing sites, which are scattered throughout the state. He said major Pardee developments are under way in the Antelope Valley and in Ventura, Riverside and San Diego counties.

If customers refuse to sign the radon agreement, Pardee will not sell them the home, Yantz said.

“We have every right to dictate our terms,” he said. “So far the disclaimer has not hurt us.”

Although Yantz said no one has challenged Pardee’s radon disclaimer in court, lawyers with the state Department of Real Estate, the state attorney general’s office and the California Assn. of Realtors all questioned the validity of the contracts.

“It seems unreasonable for the developer to say, ‘I won’t test for radon and you can’t test, but if you find it later, I won’t be held liable,’ ” said Gail Ruderman Feuer, a deputy attorney general. “We need to look at it further.”

Barry Barfield, an attorney with the California Assn. of Realtors, predicted Pardee’s disclaimers “could open up a brand new area of law.”

Currently, there are no state guidelines for dealing with disclaimers for radon or other possible problems in subdivisions within city limits, said Martin Dingman, an attorney for the state Department of Real Estate.

“No one is looking at what documents are being presented to the purchaser,” Dingman said. But Dingman said that could change, especially if more California developers follow Pardee’s lead.

In the meantime, Les Bettencourt, a managing deputy commissioner with the Department of Real Estate, said he would discourage home buyers from signing the contracts.

“I would have a problem with it,” Bettencourt said. “The consumers should be allowed to test for radon. It’s almost like the developer is saying, ‘Hey, we know there’s a problem, but we don’t want you to find out about it.’ ”

But Jim O’Brien, vice president of operations for another developer, Pacifica Corp., said he believes that home builders have the right to prohibit customers from conducting radon tests.

“It’s like making an alteration to a house before it’s yours,” O’Brien said. “As for the liability, that should be decided by the courts.”

Charles H. Fedalen, a vice president and general counsel for Griffin Homes, which is building several developments in east Ventura County, said a commission should be formed to study the issue.

“The whole issue has been haphazard,” said Fedalen, whose company does not require customers to sign radon disclaimer forms. “This is a new area. We should have a united policy on the thing, and it should be for the benefit of the consumer.”

Times environmental writer Larry B. Stammer contributed to this story.