Fair Disclosure and Airport Impact Statements in Real Estate Transfers (2012)

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20 such a claim on its merits.”204 According to the court, the Air Force had acted essentially in a private capacity the same as any other major landholder may have acted “to persuade the county body to accept its posi- tion.”205 The court also pointed out that there was no physical invasion or damage to the claimant’s property by the Air Force, which could be held responsible for a taking “only when its own regulatory activity is so ex- tensive or intrusive as to amount to a taking….”206 VI. TYPICAL AIRPORT FAIR DISCLOSURE ACT PROVISIONS A. Introduction The Typical Airport Fair Disclosure Act Provisions (TAP) set forth in Part B begin with a statement of purpose and a section defining important terms in the TAP. Consistent with other disclosure laws, the TAP applies to residential property with one to four dwell- ing units and property subdivided for residential devel- opment. However, the TAP could be drawn to apply to all real property, including commercial real estate. The proposed TAP exempts some transfers of property from disclosure requirements, such as transfers neces- sitated because of a probate proceeding or foreclosure or because of inter-spousal transfers. The TAP prescribes the form of the disclosure state- ment and when it must be provided to a buyer, but unlike most disclosure laws it requires that a real estate sales contract must incorporate the disclosure state- ment. Unlike some states’ disclosure laws, the TAP does not provide a seller with the option of giving a buyer a report by a third party in lieu of a disclosure statement; if such an approach is allowed, then the real estate con- tract would need to incorporate the report so that it is binding on the parties. Under the TAP a seller is not responsible to a buyer for a later expansion or change in an airport’s operations that affects or would affect the property. Unlike other disclosure laws, the TAP requires that an airport disclosure statement be made part of the deed, either by including an airport disclosure state- ment and notification in the deed itself or by making the disclosure statement a part of and recorded with the deed. The TAP’s intent is that after an airport dis- closure is made, it becomes part of the title to the prop- erty so as to be binding on future purchasers by giving them notice of an airport affecting their property. As for the buyer’s remedies, as is true of existing disclosure laws, the TAP permits a buyer to withdraw an offer or rescind a contract prior to a transfer of title. Unlike other disclosure laws, the TAP allows a buyer to exercise his or her right of withdrawal or re- scission at any time prior to settlement and to recover 204 Id., 213 Ct. Cl. at 364–65, 552 F.2d at 339. 205 Id., 213 Ct. Cl. 362, 552 F.2d at 339–40. 206 Id., 213 Ct. Cl. at 365, 552 F.2d at 339. any deposit or other funds paid toward the purchase of the property. After a transfer of property a buyer may elect either to rescind the transaction because of the seller’s nondisclosure or to retain the property. In either instance, a buyer may sue to recover his or her actual damages. As permitted by other residen- tial real property disclosure laws, attorney’s fees and costs are recoverable. The TAP does not preempt any other laws or remedies that a buyer may have under state law. As with several other disclosure laws, the TAP has a 1-year statute of limitations. B. Typical Airport Fair Disclosure Act Provisions B.1. Statement of Purpose The purpose of the Typical Airport Fair Disclosure Act (Act) is to provide prospective purchasers of resi- dential real property with notice of the location of any airport, as defined in section 2, that affects residential real property offered for sale or otherwise transferred unless a transfer is exempt under Section 3. Comment The Act is intended to provide prospective buyers of homes or of parcels intended for residential devel- opment with sufficient information to enable them to make informed decisions about their purchase with respect to noise and other effects of an airport affecting the property. The Act should diminish as well the risk of litigation by facilitating meaningful communication between a seller and a prospective buyer regarding the presence of an airport in close proximity to the prop- erty offered for sale.207 B.2. Definitions (a) The term Air Installation Compatible Use Zone means any military air installation affecting land in its vicinity as shown on a map that plots contours for mili- tary aircraft noise and compatible land uses based on a study conducted in accordance with 32 C.F.R. § 256.1, et. seq.208 (b) The term airport means an area of land or other hard surface, excluding water, that is used or intended to be used for the landing and takeoff of aircraft, in- cluding any buildings and facilities,209 and includes an airport area as defined or described in Sections 2(a), 2(e), 2(i), 2(o), and 4(b) of this Act. (c) The term airport authority means the state or any political subdivision thereof or any corporation, entity, or other organization created by law for the es- tablishment, operation, or control of an airport. (d) The term Airport Disclosure Statement means a written statement that identifies an airport as defined 207 Giametti v. Inspections, Inc., 76 Conn. App. 352, 360, 824 A.2d 1, 7 (2003). 208 32 C.F.R. §§ 256.3(a), (d)(2)(i), 256.4(b)(ii), and 256.5(a)(1) (2010); HAW. REV. STAT. § 508D-15(3) (2010). 209 14 C.F.R. § 139.5 (2010).

21 in Sections 2 and 4 and is delivered by a seller or a seller’s broker or agent to a buyer or a buyer’s broker or agent as required by Sections 4, 5, and 6 of this Act.210 (e) The term Airport Influence Area means all prop- erty in the vicinity of an airport that is exposed to air- craft noise and overflight and that has a day-night av- erage sound level of sixty-five decibels or higher as determined by the responsible airport or airport author- ity and shown on a map recorded in each county having property within the Airport Influence Area.211 (f) The term buyer means an individual or trustee or a corporation, partnership or any other entity, ei- ther directly or indirectly through a broker or agent, who is attempting to acquire or is acquiring legal or equitable title or a possessory interest in residential real property and includes a transferee as defined in Section 2(r).212 (g) The term dwelling unit means any building, structure, or portion thereof which is occupied or that is designed or intended to be occupied as a residence by one or more persons.213 (h) The term final settlement means when a seller delivers a deed of conveyance to a buyer or transferee of residential real property.214 (i) The term Noise Exposure Map means a map submitted by or on behalf of an airport to the Federal Aviation Administration in accordance with its Regula- tions appearing at 14 C.F.R. Part 150, Airport Noise Compatibility Planning or any successor regulation.215 (j) The term offer to purchase means a buyer’s writ- ten offer to purchase residential real property in any form including but not limited to a real estate con- tract signed by a buyer and presented for a seller’s acceptance, a lease with an option to purchase, the exercise of an option to purchase, or an offer to ex- change property for residential real property.216 (k) The term real estate contract means any of the following: (1) an executed agreement for the purchase and sale of residential real property; (2) an executed lease with an option to pur- chase residential real property; (3) an executed lease-with-obligation-to- purchase agreement for residential real property; (4) an executed installment land sale contract for residential real property; or 210 HAW. REV. STAT. § 508D-1 (2010). 211 ARIZ. REV. STAT. ANN. §§ 28-8485(A) and (B) (2010). 212 DEL. CODE ANN. tit. 6, § 2571(2) (2010); ME. REV. STAT. tit. 33, § 171(4) (2010); MINN. STAT. § 513.52, Subd. 2 (2010); OKLA. STAT. § 60-832(3) (2010); S.D. CODIFIED LAWS ANN. § 43-4-37 (2010). 213 NEV. REV. STAT. § 113.100(3) (2010). 214 DEL. CODE ANN. tit. 6, § 2571(3) (2010); NEV. REV. STAT. § 113.100(1) (2010). 215 14 C.F.R. pt. 150 (2010); HAW. REV. STAT. § 508D-15(2) (2010). 216 OKLA. STAT. § 60-832 (2010). 5) an exercise of an option to purchase residen- tial real property.217 (l) The term residential real property means: (1) any land in this state to which is affixed not less than one or more than four dwelling units;218 (2) any estate or interest in an unimproved housing lot or lots to be improved by not less than one or more than four dwelling units; and (3) any land or tract of land that is divided or proposed to be divided over any period into one or more lots, parcels, units, or interests, which are offered, known, designated or advertised as a common unit by a common name or as part of a common promotional plan of advertising and sale.219 (m) The term sale means an acquisition of residen- tial real property whether by purchase, at an auction, an exchange, an installment contract, a lease with an option to purchase, an exercise of an option, or any other method by which residential real property together with any improvements is sold and includes a transfer as defined in Section 2(p) of this Act.220 (n) The term seller means an individual or a trustee or a corporation, partnership, or other entity having legal or equitable title who is attempting to sell or transfer or is selling or transferring residential real property either directly or indirectly through a broker or an agent and includes a transferor as defined in Sec- tion 2(s). (o) The term traffic pattern means the traffic flow that is prescribed for aircraft landing at, taxiing on, or taking off from, an airfield and includes the actual ra- dar flight paths used by landing and departing air- craft.221 217 ME. REV. STAT. ANN. tit. 33, § 171(5) (2010); N.Y. REAL PROP. LAW § 461(4) (2010). 218 ALASKA STAT. § 34.70.200 (2010); DEL. CODE ANN. tit. 6, § 2571(4) (2010); HAW. REV. STAT. § 508D-1 (2010); 765 ILL. COMP. STAT. 77/5 (2010); ME. REV. STAT. ANN. tit. 33, § 171(6) (2010); MD. CODE § 10-702(b)(1) (2010); MICH. COMP. LAWS § 565.952, § 2 (2010); MINN. STAT. § 513.52, Subd. 4; MISS. CODE ANN. § 89-501(1) (2010); NEB. REV. STAT. § 76-2,120(1)(c) (2010); NEV. REV. STAT. §§ 113.100(3) and (4) (2010); N.C. GEN. STAT. § 47E-1 (2010); OKLA. STAT. § 60-832(8) (2010); PA. CONS. STAT. tit. 68, § 7302 (2010) (statute applicable to all real estate transfers with some exceptions); S.D. CODIFIED LAWS ANN. § 43-4-37 (2010); TENN. CODE ANN. § 66-5-201 (2010); VA. CODE ANN. § 55-517 (Michie 2010); WASH. REV. CODE § 64.06.005 (2010). 219 DEL. CODE ANN. tit. 6, § 2571(5) (2010); ME. REV. STAT. ANN. tit. 33, § 171(2) (2010); MINN. STAT. § 513.52, Subd. 5 (2010); NEB. REV. STAT. § 76-2,120(d) (2010); NEV. REV. STAT. §§ 113.070(4) and 113.100(5) (2010). 220 ALASKA STAT. § 34.70.200(4) (2010); HAW. REV. STAT. § 508 D-1 (2010); IOWA CODE § 558A.1(4) (2010); MINN. STAT. § 513.52, Subd. 4 (2010); MINN. STAT. § 513.93 (2010). 221 Aviation Dictionary, available at http://aviation. aviationdictionary.org/VFA-13-Aviation- Dictionary/traffic_pattern, last accessed on May 5, 2011.

22 (p) The term transfer means any form of transfer of title to residential real property by a seller or trans- feror to a buyer or transferee.222 (q) The term transfer of title means the delivery of a properly executed deed of conveyance to real property to a buyer or transferee.223 (r) The term transferee means anyone acquiring title to residential real property pursuant to an instrument that includes the power to transfer an estate or interest in real property.224 (s) The term transferor means a person who is transferring title to residential real property to a buyer or transferee.225 Comment Section 2(a) concerns a military airport or air instal- lation for which one of the military branches has con- ducted a study and mapped an air installation compati- ble use zone, or AICUZ, that must be disclosed by a seller. As for other alternatives, Arizona requires that a seller provide a proper and timely notice when a property is in a High Noise and Accident Potential Zone.226 A seller must disclose that the property is located within the zone and is subject to a require- ment of compatibility with a military airport, as well as disclose to a buyer that there is a potential for aircraft noise.227 In Maryland, sellers of residential real property must disclose to buyers known military operations affecting a property, including flight operations and the testing of munitions that may subject the property to high noise levels.228 In Virginia, an owner of residential real property located in any locality in which a military air installation is located shall dis- close to the purchaser whether the subject parcel is lo- cated in a noise zone or accident potential zone, or both, if so designated on the official zoning map by the locality in which the property is located on a form provided by the Real Estate Board.229 Furthermore, an owner must disclose “the specific noise zone or accident potential zone, or both, in which the property is located according to the official zoning map.”230 Section 2(e) defines an airport influence area. As for other alternatives, California defines an airport influ- ence area as one “in which current or future airport- 222 OKLA. STAT. § 60-832(5) (2010); S.D. CODIFIED LAWS ANN. § 43-4-37(5) (2010). 223 N.Y. REAL PROP. LAW § 430(6) (2010). 224 IOWA CODE § 558A.1(5) (2010). 225 HAW. REV. STAT. § 558A.1(6) (2010). 226 ARIZ. REV. STAT. ANN. § 28-8484(E) (2010). 227 Id. §§ 28-8461(20) and 28-8484 (2010). 228 Id. 229 VA. CODE ANN. § 55-519.1 (Michie 2010). 230 Id. related noise, overflight, safety, or airspace protection factors may significantly affect land uses or necessi- tate restrictions on those uses as determined by an air- port land use commission.”231 Section 2(i) defines an airport noise exposure map, which some airports have submitted voluntarily to the FAA pursuant to its regulations appearing at 14 C.F.R. Part 150. As of January 2011, as required by the Vi- sion 100–Century of the Aviation Reauthorization Act, Public Law 108-176, the FAA makes available to the public on the FAA’s Web site noise exposure maps and other information on public airports that have submitted a noise exposure map under Part 150.232 Section 2(l) defines the term residential real prop- erty. Current residential real property disclosure laws typically apply to real property consisting of not less than one or more than four dwelling units. Although the Act applies to sales of residential real property, the Act also applies to lots that are intended to be improved with a dwelling, as well as to property that may be subdivided, advertised, and sold to the public for resi- dential use. Presently, most residential real property disclosure laws are concerned with defects in a dwell- ing unit and thus are inapplicable to unimproved land. Section 2(l) is consistent with current disclosure laws, which do not apply to commercial real property. How- ever, the Act could be expanded to apply to all trans- fers of real property, including agricultural, commer- cial, and undeveloped property, because of the possibility of a change in land use affecting property in the vicinity of an airport. As for Sections 2(p), 2(r), and 2(s), not all resi- dential real property transactions are necessarily in the form of a real estate contract. Thus, the use of the terms transfer, transferee, and transferor is intended to embrace more transactions involving transfers of property subject to the Act. However, certain transfers are exempt under Section 3. B.3. Exempt Transfers This Act shall not apply to the following transfers of residential real property:233 231 CAL. CIV. CODE § 1353 (2010). 232 See Airport Noise and Land Use Information, including Noise Exposure Maps, available at http://www.faa.gov/ airports/environmental/airport_noise/noise_exposure_maps/, last accessed on May 26, 2011. As the FAA advises, the noise exposure maps and land use information developed pursuant to Pt. 150 are voluntarily prepared by airport sponsors, and not all airport sponsors have prepared them. 233 CAL. CIV. CODE § 1102.2(b) (West 2010); CONN. GEN. STAT. § 20-327b(b) (2010); DEL. CODE ANN. tit. 6, §§ 2577(1)-(9) (2010); HAW. REV. STAT. §§ 508D-3(1)-(8) (2010); IOWA CODE §§ 558A.1(4) (a)-(h) (2010); ME. REV. STAT. tit. 33, §§ 172(1)- (12) (2010); MD. CODE ANN., REAL PROP. §§ 10-702(b)(i)(2)(ii- vii) (2010); MICH. COMP. LAWS §§ 565.953, § 3(a)-(i) (2010); MISS. CODE ANN. § 89-1-501(2)(g) (2010); NEB. REV. STAT. §§ 76-2,120(6)(a)-(l) (2010); NEV. REV. STAT. §§ 113.115(3)(a)-(d) (2010); N.Y. REAL PROP. LAW §§ 463(1)-(14) (2010); N.C. GEN. STAT. §§ 47E-2(1)-(11) (2010); OHIO REV. CODE ANN.

23 (a) Transfers pursuant to court order such as trans- fers ordered by a court in the administration of an es- tate, trust or guardianship or pursuant to a writ of exe- cution, by eminent domain, and transfers resulting from a decree for specific performance. (b) Transfers to a mortgagee by a mortgagor in de- fault by a deed in lieu of foreclosure. (c) Transfers by any sheriff's sale for default on an obligation secured by a mortgage, judgment, tax or other lien. (d) Transfers by a fiduciary in the course of the ad- ministration of a decedent's estate, guardianship or trust. (e) Transfers from one co-owner to one or more other co-owners. (f) Transfers made to a spouse or to a person or per- sons in the lineal line of consanguinity of one or more of the transferors. (g) Transfers between spouses resulting from a prop- erty settlement incident to a divorce. (h) Transfers to any government entity.234 Comment Section 3 reflects the approach in many states to ex- empt specific types of transfers from residential real estate disclosure laws. The California disclosure law has an even more extensive list of exempt transfers.235 Some residential real property disclosure laws ex- empt the first sale of residential property that has never been occupied or inhabited.236 Although such an exemption may be justified regarding defective mate- rial or workmanship in a house that may be under §§ 5302.30(B)(2)(a)-(n) (2010); OKLA. STAT. § 60-838(A)(1) (2010); R.I. GEN. LAWS §§ 5-20.8-3(1)-(10) (2010); S.C. CODE ANN. §§ 27-50-30(1)-(15) (2010); S.D. CODIFIED LAWS ANN. §§ 43-4-43(1)-(6) (2010); TENN. CODE ANN. §§ 66-5-209(1)-(12) (2010); VA. CODE ANN. §§ 55-518(1)-(9) (Michie 2010); WASH. REV. CODE §§ 64.06.010(1)-(7) (2010); WIS. STAT. §§ 709.01(2)(a)-(d) (2010). 234 Subsection (h) does not include transfers from any gov- ernment entity. Although land acquired under Pt. 150 is not to be resold for residential use, sales have been permitted on rare occasions. Subsection (h) is drafted to avoid exempting an air- port from providing a disclosure statement when it disposes of residential property acquired under Pt. 150. 235 CAL. CIV. CODE § 1102.2(b) (West 2010). 236 ALASKA STAT. § 34.70.120 (2010); CONN. GEN. STAT. § 20-3276(b)(4) (2010); HAW. REV. STAT. § 508D-3(6) (2010); IDAHO CODE § 55-2505(12) (2010); 765 ILL. COMP. STAT. 77/15 (9) (2010); IND. CODE ANN. § 32-21-5-1(b)(8) (Burns 2010); KY. REV. STAT. § 324.360(7) (2010); MD. CODE ANN., REAL PROP. § 10-702(b)(2)(i)(1) (2010); MINN. STAT. § 513.54(10) (2010); NEB. REV. STAT. § 76-2,120(6)(k) (2010); N.Y. REAL PROP. LAW § 463(12) (2010); N.C. GEN. STAT. § 47E-2(9) (2010); OHIO REV. CODE ANN. § 5302.30(B)(2)(l) (2010); OKLA. STAT. § 60-838(9) (2010); R.I. GEN. LAWS § 5-20.8-3(8) (2010); S.C. CODE ANN. § 27-50-30(10) (2010); S.D. CODIFIED LAWS ANN. § 43-44-43(6) (2010); TENN. CODE ANN. § 66-5-209(9) (2010) (exempting first sale “provided the builder offers a written warranty”); VA. CODE ANN. § 55-518(9) (Michie 2010). warranty, there appears to be no reason for an airport disclosure act to exempt a first sale of previously unoc- cupied or uninhabited property. B.4. Seller’s Duty to Disclose an Airport (a) When residential real property is offered for sale or otherwise transferred, a seller or other transferor shall disclose to a buyer whether the property is located within the boundaries: (1) of an airport Noise Exposure Map or an Airport Influence Area or (2) of a military Air Installation Compatible Use Zone. (b) If neither Section 4(a) (1) or (2) applies, then a seller must disclose whether the residential real prop- erty is within 2 miles of an airport and its traffic pattern, as defined in Sections 2(b) and 2(o), including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or the airport or airport authority, as well as actual radar flight paths used by landing and departing aircraft.237 Comment With respect to Section 4(a), there will not be a noise exposure map that has been submitted to the FAA (submission is voluntary) or a map of a designated airport influence area for all airports within the vicin- ity of property subject to the Act. Consequently, Sec- tion 4(b) is intended to embrace an airport for which there is no noise exposure map, designated airport in- fluence area, or AICUZ. For example, in Indiana, a seller must disclose the existence of an airport that is located within a certain geographical distance from the seller’s property as determined by the state real estate commission.238 The real estate commission may con- sider the differences between an airport serving com- mercial airlines and an airport that does not serve commercial airlines in deciding the distance to be dis- closed.239 B.5. Airport Disclosure Statement (a) An Airport Disclosure Statement (1) shall identify the property being offered for sale or otherwise being transferred by its legal de- scription (as shown in the land or tax records for the property) and its street address; (2) shall state whether the property is within the boundaries of an airport Noise Exposure Map or Airport Influence Area or a military Air Installation Compatible Use Zone; and (3) if Section 5(a)(2) does not apply, shall state whether the property is within 2 miles of an airport and its traffic pattern as described in Section 4(b) of this Act. 237 HAW. REV. STAT. §§ 508D-15 and 508D-15(a)(2) (2010). 238 IND. CODE ANN. § 32-21-5-7(4) (Burns 2010). 239 Id.

24 (b) A seller shall be deemed to be in compliance with this Act when the seller discloses an airport by using the following form and thereafter performing the requirements set forth therein and in Section 6 of this Act: Airport Disclosure Statement Pursuant to the Airport Fair Disclosure Act (Act) enacted by this State, [citation], which defines the terms used in this Statement, and , (Seller), the owner of residential real property as defined in the Act, situated in the City/County of known as [Legal Description, such as Subdivision, Block, Square, Lot] located at [Street Address], (Property), hereby discloses to and , (Buyer), that the aforesaid Property is affected by an airport as described below in that the Property is located within the boundaries of: [COMPLETE ENTRIES THAT APPLY TO THE PROPERTY] ❏ a Noise Exposure Map for the [Name of Airport] submitted by the [Name of Airport or Airport Authority] to the Federal Aviation Administration; ❏ an Airport Influence Area for the [Name of Airport] designated by the [Name of Airport or Airport Authority]; ❏ a military Air Installation Compatible Use Zone, which is also known as the [Name of Military Airport or Air Installation]; or ❏ the property is located within 2 miles of an airport known as the [Name of Airport] and its traffic pattern as defined in the Act, including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or by the [Name of Airport or Airport Authority], as well as the ac- tual radar flights paths used by landing and departing aircraft. This Airport Disclosure Statement shall be attached to and made a part of any real estate contract between the Seller and the Buyer and shall survive the delivery of a deed of conveyance by the Seller to the Buyer at final settle- ment. Pursuant to the Section 6(d) of the Act, (1) the Seller’s (or other Transferor’s) Airport Disclosure Statement shall be incorporated by reference in the Deed and recorded with the Deed in the land records of the [City/County] in which the aforesaid Property is situated, or (2) the Seller’s (or other Transferor’s) Deed shall include the Notification prescribed by Section 6(d)(2) of the Act prior to its recording in the aforesaid land records. The Buyer is hereby notified that, prior to signing a real estate contract for the purchase of the aforesaid Property, the Buyer should conduct any investigation that the Buyer deems prudent and necessary to assess the impact, if any, of the airport, including but not limited to airport-related noise, that may affect the Buyer’s use and enjoyment of the Property. Date Seller Seller I (We) acknowledge receipt of the foregoing Airport Disclosure Statement: Date Buyer Buyer Comment Although several states’ disclosure laws prescribe the form for the disclosure of defects and conditions either in the statute or as required by a real estate commission or equivalent body, Section 5 is based on California’s form entitled Notice of Airport in Vicin- ity.240 240 CAL. CIV. CODE § 1353(a)(1) (West 2010).

25 B.6. Timing and Delivery of Airport Disclosure Statement (a) A seller or a seller’s broker or agent shall deliver an Airport Disclosure Statement at the time residential real property is being offered for sale and/or listed with a broker or agent for sale and not later than when a buyer makes an offer to purchase the property.241 (b) The Airport Disclosure Statement shall be in- cluded within the real estate contract or shall be in- corporated by reference in the contract and made an addendum to the contract.242 (c) The real estate contract shall state that the Air- port Disclosure Statement survives the delivery of the deed of conveyance to the property. (d) A Seller’s deed of conveyance (1) shall incorporate an Airport Disclosure State- ment that shall be recorded as an addendum to the deed or (2) shall include the following statement and no- tification: Airport Disclosure Statement and Notification This Notification is required by the Airport Fair Disclosure Act, [citation] enacted by the State of . The property being conveyed hereby is within the boundaries of an airport Noise Exposure Map for the [Name of Airport], an Airport Influence Area for the [Name of Airport] designated by the [Name of Airport or Airport Authority], and/or a military Air Installation Compatible Use Zone for the [Name of Military Airport or Air Installation], or is within 2 miles of the [Name of Airport] or its traffic pattern, including the runways and landing and departure flight paths as shown on a map published by the Federal Aviation Administration or the [Name of Airport or Airport Authority] and the actual radar flight paths used by landing and departing 241 Id. §§ 1102.3 and 1102.12 (authorizing delivery by a real estate agent); CONN. GEN. STAT. § 20-327b(a) (2010); HAW. REV. STAT. § 508D-4(2) (2010); IDAHO CODE § 55-2509 (2010); MISS. CODE ANN. § 89-1-503 (2010); NEB. REV. STAT. § 76- 2,120(7) (2010); NEV. REV. STAT. § 113.070(2) (2010) (stating that “[t]he seller shall retain a copy of the disclosure document which has been signed by the initial purchaser acknowledging the date of receipt by the initial purchaser of the original document”); OHIO REV. CODE ANN. § 5302.30(I) (2010); OKLA. STAT. § 60-834(D) (2010); R.I. GEN. LAWS §§ 5-20.8-2(a) and 5- 20.8-5(a) (2010) (“Every agreement for the purchase and sale of residential real estate located in the state shall contain an acknowledgement that a completed real estate disclosure form has been provided to the buyer by the seller.”). 242 DEL. CODE ANN. tit. 6, § 2573 (2010) (providing also that the disclosure form signed by the buyer and seller must “be- come a part of the purchase agreement”); N.Y. REAL PROP. LAW § 462 (2010) (stating that “[a] copy of the property condition disclosure statement containing the signatures of both seller and buyer shall be attached to the real estate purchase con- tract”). aircraft. The property being conveyed may be affected by airport operations including but not limited to noise, vibration, smoke, odor, and/or traffic. This Notification is binding on the grantee and all future grantees and all other transferees of the herein described real property. Comment Section 6(a) requires the disclosure of an airport af- fecting the property as soon as the property is offered or listed for sale and no later than when a buyer makes an offer. In contrast, some residential real property disclosure laws permit disclosure to be made even after a real estate contract has been executed by a buyer and seller. The intent of Section 6(a) is to pro- vide for early disclosure so as to avoid any dispute later regarding the transaction because of a seller’s failure to make a required airport disclosure. Section 6(a) is consistent with disclosure laws in some states that authorize a seller’s broker or agent to deliver a required disclosure statement.243 Section 6(b) differs from most residential real prop- erty disclosure laws. Virtually all of the current disclo- sure laws do not require that a property disclosure statement be made a part of the real estate contract.244 The intent of Section 6(b) is that rather than a dis- closure statement being merely informative, the state- ment will continue to be binding both on a seller and a buyer. Local real estate practice may vary; however, in many if not most jurisdictions a prospective buyer’s offer to purchase real property is often in the form of a real estate contract signed by the buyer that is presented to the seller for the seller’s acceptance. If so, a real estate contract may include an airport disclo- sure clause to be completed by a seller or a seller’s agent or broker prior to a buyer’s offer. Alternatively, an addendum may be completed by a seller that is pro- vided to a buyer for attachment to the buyer’s offer to purchase. In either instance, the disclosure must com- ply with Sections 4, 5, and 6. The intent of Section 6(c) is to avoid unambiguously the merger-by-deed doctrine whereby a deed of con- veyance to real property supersedes either in whole or in part the real estate contract. It does not appear that any of the present residential real property disclo- sure laws provide that the real estate contract sur- vives the deed. In Biddle v. BAA Indianapolis, LLC,245 because the effect of airport noise on the property pur- chased by the buyers had been disclosed to the buyers 243 See, e.g., ME. REV. STAT. ANN. tit. 33, § 176(1) (West 2010) (stating that information in the disclosure statement is for disclosure only and not intended to be part of the contract between the purchaser and seller). 244 But see DEL. CODE ANN. tit. 6, § 2573 (2010) (providing also that the disclosure form signed by the buyer and seller must “become a part of the purchase agreement”). 245 860 N.E.2d 570 (Ind. 2007).

26 both in the real estate contract and in the deed to the property, the court affirmed a trial court’s dis- missal of the buyers’ later inverse condemnation claim against the Indianapolis Airport Authority for an al- leged taking based on airport noise. Pursuant to Section 6(d), if an Airport Disclosure Statement is referenced in, attached to, and recorded with the deed, or if the deed includes the prescribed Airport Disclosure Statement and Notification, all sub- sequent buyers and transferees will be on notice of an airport affecting the property. B.7. Buyer’s Duty to Investigate On receipt of an Airport Disclosure Statement in compliance with this Act, a buyer shall have a duty to investigate the current or future impact of an airport on the property that is the subject of the Airport Disclo- sure Statement. Comment Section 7 is consistent with the disclosure laws in several states providing that a seller’s compliance with a residential real property disclosure law is not a sub- stitute for a buyer’s inspection of the property or an excuse for a buyer not to exercise reasonable care.246 For example, in Hawaii, “[t]he disclosure statement shall not be construed as a substitute for any expert inspection, professional advice, or warranty that the buyer may wish to obtain.”247 The nature of an investigation would be in the buyer’s discretion, but could include a review of the land records in the county where the property is located, the use of an appraiser, another expert, and/or the buyer’s own reconnaissance of the area. 246 367 DEL. CODE ANN. tit. 6, § 257 (2010); GA. CODE ANN. § 10-6A-5(b)(2) (2010); HAW. REV. STAT. § 508D-1(3) (2010); IDAHO CODE § 55-2507(4) (2010); NEV. REV. STAT. § 113.140(3) (2010) (“Neither this chapter nor chapter 645 of NRS relieves a buyer or prospective buyer of the duty to exercise reasonable care to protect himself.”); OHIO REV. CODE ANN. § 5302.30(D)(1) (Baldwin 2010); OKLA. STAT. § 60-833(B)(2)(c) (2010); R.I. GEN. LAWS § 5-20.8-2(b) (2010); S.C. CODE ANN. § 27-50-80 (2010). 247 IDAHO STAT. § 55-2507(3) (2010); IND. CODE ANN. § 32- 21-5-9 (Burns 2010); KY. REV. STAT. ANN. § 324.360(7) (2010); LA. REV. STAT. ANN. § 3198(D)(1) (West 2010); MICH. COMP. LAWS § 565.951, § 7(1) (2010); MISS. CODE ANN. § 89-1-509 (2010); NEB. REV. STAT. §§ 76-2,121(3)(e), (f), and (g) (2010); NEV. REV. STAT. § 113.130 (2010) (“A completed disclosure form does not constitute an express or implied warranty regarding any condition of residential property.”); OHIO REV. STAT. ANN. § 5302.30(D)(1) (2010); OKLA. STAT. § 60-832(10) (2010); OR. REV. STAT. § 105.464 (2010); R.I. GEN. LAWS § 5-20.8-2(b) (2010); S.D. CODIFIED LAWS ANN. § 43-4-44 (2010); TENN. CODE ANN. §§ 66-5-201 and 66-5-210 (2010); VA. CODE ANN. § 55-518(B) (Michie 2010); and WASH. REV. CODE § 64.06.015 (2010). B.8. Buyer’s Right to Withdraw an Offer or Rescind a Contract248 (a) If an Airport Disclosure Statement is not deliv- ered to a buyer or is not delivered to a buyer until af- ter a buyer makes an offer to purchase, the buyer may withdraw an offer to purchase or rescind any resulting real estate contract at any time between the date of the offer to purchase or the resulting real estate contract and the final settlement on the property. (b) A buyer may withdraw an offer to purchase or rescind a resulting real estate contract by notifying the seller or the seller’s broker or agent: (1) by delivering a letter in person to the seller or the seller’s broker or agent; (2) by mailing a letter to the seller or the seller’s broker or agent by certified mail, return receipt requested; or (3) by sending a letter by any other method, including a courier service or electronic mail or facsim- ile, as long as there is a record showing the delivery of the letter to the seller or the seller’s broker or agent. (c) If a buyer withdraws an offer to purchase or re- scinds a real estate contract in accordance with this section, the withdrawal of the offer or the rescission of the resulting real estate contract is without penalty to the buyer and the seller or the seller’s broker or agent shall return to the buyer (or direct any third party to return to the buyer) within two business days the buyer’s deposit and any other funds paid by the buyer in advance of the final settlement for the purchase of the property. Comment The presence of an airport is a condition that may affect a buyer’s use and enjoyment of property, as well as affect a resale of the property. Consequently, Section 8(a) is more favorable to buyers than most if not all of the current real property disclosure laws. Rather than limit a buyer to a few days to withdraw an offer or re- scind a contract, Section 8(a) permits a buyer to do so at any time prior to final settlement. Although a buyer should be able to withdraw an offer any time prior to a seller’s acceptance, it may be important to specify that a buyer has the right to withdraw an offer, 248 ALASKA STAT. § 34.70.020 (2010); CAL. CIV. CODE § 1102.3 (West 2010); HAW. REV. STAT. 508D-16(b) (2010) (re- quiring return of all deposits); 765 ILL. COMP. STAT. 77/40 (2010) (providing for termination of the contract); LA. REV. STAT. §§ 9:3198(B)(2) and (3)(a) (2010); ME. REV. STAT. tit. 33, § 174(2) (2010); NEV. REV. STAT. §§ 113.130(b)(1) and 113.150(1) and (2) (2010); N.C. GEN. STAT. § 47E-5(b) (2010); OHIO REV. CODE ANN. § 5302.30(K)(2) (2010); OR. STAT. § 105.475(1) (2010); R.I. GEN. LAWS §§ 5-20.8-4(a) and (b)(1) and (2) (2010); S.D. CODIFIED LAWS ANN. §§ 43-4-38 and 43-4- 39 (2010); TENN. CODE ANN. § 66-5-203(b) (2010); VA. CODE ANN. § 55-520(B) (Michie 2010); WASH. REV. CODE §§ 64.06.030 and 64.06.040(3) (2010).

27 such as one made at an auction or when a buyer has made a firm offer. However, some states may want to limit the time within which a buyer may withdraw an offer or rescind. For example, some disclosure laws limit a buyer’s right to withdraw an offer or to rescind a contract to 72 hours, excluding federal and state holidays and week- ends, after delivery of the disclosure statement.249 Fur- thermore, some states may want to provide that non- compliance with the Act does not invalidate a sale or conveyance when a buyer does not exercise his or her rights pursuant to this Section.250 If so, the following S ections (d) and (e) could be used in Section 8. (d) Any rights of a buyer to terminate a real estate contract provided by this section are waived conclusively if not exercised prior to final settlement or prior to occu- pancy of the property, whichever is earlier, by the buyer. A buyer’s right to rescind a real estate contract or a con- veyance of residential real property subject to this Act for reasons other than a seller’s non-compliance with the Act are not affected by this section.251 (e) A transfer subject to this Act is not invalid or is to be invalidated solely because of the failure of the seller or the seller’s broker or agent to comply with this Act.252 The inclusion of subsections (d) and (e) would mean that a buyer would not be able to rescind a purchase after a transfer of title. If subsections (d) and (e) are included in Section 8, then Section 9 below will re- quire revision or deletion. However, Section 9(d) that permits a buyer to claim actual damages directly and proximately caused by a seller’s noncompliance with the Act could be retained. B.9. Buyer’s Right to Claim Damages (a) If residential real property has been transferred to a buyer prior to a seller’s disclosure of an airport, as defined in Section 2, the buyer may bring an action within one year of the final settlement on the real property to rescind the purchase and the transfer of title to the buyer and to recover any actual damages directly and proximately caused by the seller’s failure to disclose an airport as required by this Act.253 249 LA. REV. STAT. § 9:3198(3)(a) (2010); ME. REV. STAT. tit. 33, § 174(2) (2010). 250 372 CAL. CIV. CODE § 1102.13 (2010) provides: No transfer subject to this article shall be invalidated solely because of the failure of any person to comply with any provision of this article. However, any person who willfully or negligently violates or fails to perform any duty prescribed by any provision of this article shall be liable in the amount of actual damages suffered by a transferee. 251 LA. REV. STAT. § 3198(3)(b) (2010); ME. REV. STAT. tit. 33, § 174(4) (2010); MD. CODE ANN., REAL PROP. § 10-702(k)(2) (2010). 252 LA. REV. STAT. § 3198(3)(d) (2010); ME. REV. STAT. tit. 33, § 174(5) (2010). 253 ALASKA STAT. § 34.70.070 (2010); CAL. CIV. CODE §§ 1102.1(a), 1102.8, and 1102.13 (West 2010); HAW. REV. STAT. § 508D-14 (2010); IDAHO CODE § 55-2514 (2010); 765 ILL. (b) In lieu of rescission under Section 9(a), a buyer may elect to retain the property and commence an action for actual damages directly and proximately caused by the seller’s failure to deliver an Airport Dis- closure Statement as required by this Act.254 (c) A buyer’s right to claim damages for a seller’s noncompliance with the Act is not affected by a buyer’s sale or re-conveyance of the subject property within one-year of the final settlement on the residential real property at issue. (d) In any legal or equitable action by a buyer based on or arising out of a seller’s non- compliance with the Act, the buyer may recover attorney’s fees and costs as determined by the court.255 (e) This section does not limit any other rights or remedies a buyer may have under state law, whether by statute or at common law. Comment Section 9 provides a buyer with several remedies. Even if a buyer elects to rescind a transaction after conveyance, Section 9(a) permits a buyer to recover any actual damages sustained by a buyer that were directly and proximately caused by a seller’s noncompliance. Section 9(b) permits a buyer to elect to retain the property and sue to recover actual damages that were directly and proximately caused by a seller’s noncom- pliance. The intent of Section 9(c) is to preserve a buyer’s rights and remedies even though within 1 year of final settlement a buyer has sold or reconveyed the prop- COMP. STAT. 77/45 (2010); LA. REV. STAT. 9:3198B.(d) (2010); ME. REV. STAT. tit. 33, § 178 (2010); MINN. STAT. § 513.57, Subd. 3 (2010) (“[n]othing in sections 513.52 to 513.60 pre- cludes liability for an action based on fraud, negligent misrep- resentation, or other actions allowed by law”); OHIO REV. CODE ANN. §§ 5302.30(J) and (L) (2010); PA. CONS. STAT. tit. 68, § 7313(a) (2010); TENN. CODE ANN. §§ 66-5-208(a)(1)(a)-(a)(3) and (b) (2010); WASH. REV. CODE § 64.06.070 (2010). 254 ALASKA STAT. § 34.70.090(b) (2010); HAW. REV. STAT. § 508D-16(c) (2010); IDAHO CODE § 55-2517 (2010); 765 ILL. COMP. STAT. 77/55 (2010); IOWA CODE § 558A.6 (2010); MINN. STAT. § 513.57, Subd. 2 (2010) (“recover damages and receive other equitable relief as determined by the court”); MISS. CODE ANN. § 89-1-523 (2010) (providing that “any person who will- fully or negligently violates or fails to perform any duty pre- scribed by any provision of sections 89-1-501 through 89-1-523 shall be liable in the amount of actual damages suffered by a transferee”); NEB. REV. STAT. § 76-2,120(12) (2010); N.Y. REAL PROP. LAW § 465(2) (2010) (applying to a “willful failure”); OKLA. STAT. § 60-837(B) (2010); PA. CONS. STAT. tit. 68, § 7311(a) (2010); S.D. CODIFIED LAWS ANN. § 43-4-42 (2010); TENN. CODE ANN. § 66-5-208(a)(1) (2010) (for owner’s misrep- resentations on residential disclosure statement); VA. CODE ANN. § 55-524(B)(2) (Michie 2010). 255 ALASKA STAT. § 34.70.090(d) (2010); HAW. REV. STAT. § 508D-16(c) (2010); 765 ILL. COMP. STAT. 77/25 (2010); NEB. REV. STAT. § 76-2,120(12) (2010); NEV. REV. STAT. § 113.150(4) (2010); OKLA. STAT. § 60-837(D) (2010); S.C. CODE ANN. § 27- 50-65 (2010); S.D. CODIFIED LAWS ANN. § 43-4-42 (2010).

28 erty to another buyer or transferee, possibly because of the effect of airport noise. Section 9(d), which is consistent with several state disclosure laws, permits a buyer to recover attorney’s fees and costs. Section 9(e) preserves any other rights and remedies that a buyer may have under state law. For example, although a seller may make the required airport dis- closure, the seller could accompany the disclosure with misrepresentations or conceal information known only to a seller regarding an airport’s impact on the prop- erty. However, consistent with several current disclo- sure laws, some states may prefer that the Act’s remedies supersede all other rights and remedies un- der state law.256 B.10. Limitation of Seller’s Liability 257 A seller is not liable for any error, inaccuracy or omission of any material information provided by a government or governmental agency or by an airport or airport authority on which a seller relied when comply- ing with Sections 4, 5, and 6 of this Act as long as the error, inaccuracy or omission was not within the actual knowledge of the seller.258 Comment Section 10 is intended to protect a seller who has re- lied on material information provided by a government or governmental agency or by an airport or airport au- thority that proves to be erroneous, inaccurate, or in- complete. The section is similar to existing disclosure laws that provide that a seller has no liability for in- formation supplied by the government when the seller has no actual knowledge that the information that is 256 OKLA. STAT. § 60-638(F) (2010). 257 ALASKA STAT. § 34.70.030 (2010); CAL. CIV. CODE § 1102.9 (West 2010); DEL. CODE ANN. tit. 6, §§ 2575(1) and (2) (2010); HAW. REV. STAT. § 508D-13 (2010); PA. CONS. STAT. tit. 68, § 7314 (2010); VA. CODE ANN. § 55-521(B) (Michie 2010). 258 CAL. CIV. CODE § 1102.4(a) (West 2010); CONN. GEN. STAT. § 20-327c (2010); GA. CODE ANN. § 10-6A-5(b)(2) (2010) (applicable to brokers); HAW. REV. STAT. § 508D-9(1) (2010) (stating “[f]acts based on only the seller’s personal knowledge”); IDAHO CODE § 55-2507 (2010) (“actually known by the trans- feror”); 765 ILL. COMP. STAT. 77/25(b) (2010) (“The seller shall disclose material defects of which the seller has actual knowl- edge.”); IND. CODE ANN. § 32-21-5-11(a) (Burns 2010); LA. REV. STAT. 9:3198E.(2) (2010); ME. REV. STAT. ANN. tit. 33, ch. 7, § 177(1); MD. CODE §§ 10-702(e)(2)(viii) and 10-702(e)(3)(iv)(1) and (2) (2010); MICH. COMP. LAWS § 565.955, § 5(1) (2010); MINN. STAT. § 513.57, Subd. 1 (2010); MISS. CODE ANN. § 89-1-505 (2010); NEB. REV. STAT. 76-2,120(8) (2010); NEV. REV. STAT. § 113.150(5)(a) (2010); N.C. GEN. STAT. § 47E- 4 (2010); OHIO REV. CODE ANN. § 5302.30(F)(1) (2010); OKLA. STAT. §§ 60-833(B)(1) and 60-835(C) (2010); PA. CONS. STAT. tit. 68, § 7309(b) (2010); R.I. GEN. LAWS §§ 5-20.8-2(a) and 5- 20.8-9 (2010); S.C. CODE ANN. §§ 27-50-40(B) and (C) (2010); TENN. CODE ANN. §§ 66-5-204(a) and (b) (2010); VA. CODE ANN. § 55-521(A) (Michie 2010); WASH. REV. CODE § 64.06.050(1). material to the transaction is erroneous or inaccurate or omits information. B.11. Seller’s Compliance as Precluding Liability for Airport Changes After Final Settlement A seller who complies with Sections 4, 5, and 6 has no liability to a buyer regardless of any change in an airport, including its operations, flight paths, or noise, occurring after final settlement. Comment Section 11 is intended to protect a seller from any claim arising out of a change in an airport, including airport-related noise. However, some states may want to require a seller to disclose to a buyer whatever the seller knows at the time of the buyer’s offer regarding an airport’s plans that may affect the air- port’s future size, operations, or flight paths. If so, a state may want to provide also that a seller has to act in good faith, which in many states means honesty-in- fact.259 B.12. Waiver Prohibited260 (a) The requirements of this Act may not be waived, orally or in writing, by a buyer of residential real prop- erty subject to this Act. (b) Any waiver signed by or on behalf of a buyer is void ab initio. Comment Section 12 is the opposite of disclosure laws in a majority of states (that address the issue) that permit a buyer to waive a disclosure act’s requirements. Allow- ing a waiver of an airport disclosure act could under- mine the Act’s effectiveness as sellers or their brokers or agents could include a standard waiver in real estate contracts to avoid disclosing an airport to a prospective buyer. Nevertheless, some states may want to allow a buyer to waive the protection of an airport disclosure act. 259 ALASKA STAT. § 34.70.060 (2010); CAL. CIV. CODE § 1102.7 (West 2010); HAW. REV. STAT. § 508D-7 (2010) (requir- ing “good faith and due care”); IDAHO CODE §§ 55-2507(5) and 55-2516 (2010) (stating that “good faith means honesty in fact”); LA. REV. STAT. ANN. § 9:3198B.(1) (West 2010); MICH. COMP. LAWS § 565.960, § 10 (2010); MINN. STAT. § 513.55, Subd. 1(b) (2010); MISS. CODE ANN. § 89-1-511 (2010); Ohio REV. CODE ANN. § 5302.30 (Baldwin 2010) (good faith meaning “honesty in fact”); S.D. CODIFIED LAWS ANN. § 43-4-41 (2010). 260 CAL. CIV. CODE § 1102(c) (West 2010) (stating that “[a]ny waiver of the requirements of this article is void as against public policy”); MD. CODE ANN., REAL PROP. § 10-702(K)(1) (2010) (stating that “[t]he rights of a purchaser under this sec- tion may not be waived in the contract of sale and any at- tempted waiver is void”); WASH. REV. CODE § 64.06.010(7) (2010) (stating that “the buyer may not waive the receipt of the ‘Environmental’ section of the seller disclosure statement”).

29 B.13. Statute of Limitations261 Any legal or equitable action based on non- compliance with the Act must be brought within one year of the date of an executed real estate sales con- tract if there was no transfer of title to the buyer or transferee, or if there was a transfer of title to the buyer or transferee, within one year of the date of the final settlement on the property. Comment Section 13 sets an outermost limit on the initiation of claims for failure to comply with the Act. Current residential real property disclosure laws bar claims after 1 year or at the most 2 years. C. Suggested Practices for Implementing an Airport Disclosure Act As seen in Section 2 of the Act, an airport means an airport having a noise exposure map, an airport in a designated airport influence area, or a military AICUZ. If an airport affecting nearby residential prop- erty does not have a published noise exposure map or a recorded airport influence area or AICUZ that is read- ily available to the public then the airport authority (or other responsible authority) may want to designate an airport influence area as defined in Sect ion 2(e) of the Act and record a noise contour map in counties in which any part of an airport is located and make the map available on its Web site. Another approach is provided by Section 4(b) of the Act that does not involve plotting noise contours on a map. An airport authority could use an existing map showing the airport and its environs that includes all property within 2 mi of the airport and its traffic pattern as defined in Sections 2(b) and 2(o). The map could be made available via the airport or airport authority’s Web site. Depending on the circumstances the airport authority may want to extend the map’s coverage beyond 2 mi to show the possible impact of the airport’s operations on property in the vicinity of the airport. The Act is drafted so as to make a disclosure state- ment binding on all future buyers and grantees of the property. However, for the Act to be successful the local real estate industry will need to be informed of a seller’s responsibility under the Act and of the Act’s 261 765 ILL. COMP. STAT. 77/60 (2010) (“No action for viola- tion of this Act may be commenced later than one year from the earlier of the date of possession, date of occupancy, or date of recording of an instrument of conveyance of the residential real property.”); NEB. REV. STAT. § 76-2,120(12) (2010) (“Any action to recover damages under the cause of action shall be commenced within one year after the purchaser takes posses- sion or the conveyance of the real property, whichever occurs first.”). See HAW. REV. STAT. § 508D-17 (2010) (2 years); MINN. STAT. § 513.57, Subd. 2 (2010) (2 years); OKLA. STAT. § 60- 837(c) (2010) (2 years); PA. CONS. STAT. tit. 68, § 7311(b) (2010) (2 years). particular directives. For example, real estate con- tracts in use where an airport is located may fail to include an anti-merger clause, and deeds commonly in use are unlikely to refer to an airport disclosure statement or include within the deed an airport disclo- sure statement. Thus, real estate brokers and agents, as well as lo- cal bar associations and attorneys, will need to be in- formed of a seller’s obligation to disclose an airport (Section 4 of the Act) and that a seller must do so in the manner required by Sections 4, 5, and 6. An airport authority will want to inform sellers, brokers, agents, prospective buyers, city and county recording or land office officials and clerks, and others of the importance of using the disclosure form and notice provided in Sec- tions 5 and 6 so that the form and notice become com- monly accepted practice. Besides providing a copy of the form and notice (as well as of the disclosure act) to per- sons involved in real estate transactions, an airport authority could make the information available on its Web site, as well as provide links for users to download the disclosure law and the Airport Disclosure State- ment form and notice. An airport authority will want to draw special atten- tion to the requirement in Section 6 of the Act that when property subject to the Act is being offered for sale, the real estate contract must provide that the air- port disclosure statement survives a transfer of title. Furthermore, if the deed does not incorporate by refer- ence and attach an airport disclosure statement, then the airport disclosure statement and notification pre- scribed by Section 6 of the Act must be included in the text of the deed. An airport authority may need to make available both an addendum with an anti-merger clause for attachment to a real estate contract and an addendum with the airport disclosure statement and notification that may be attached to a deed. Without an airport authority or other office taking steps to assure that the Act’s requirements are being observed, even if an airport disclosure statement is delivered to a buyer, the statement may have no effect after a closing on the property and it would not be binding on future buyers and grantees so as to give them notice of an airport in the vicinity of the property being conveyed. An airport authority’s outreach should include po- tential home buyers so that they are informed not only of a seller’s obligations under the Act but also of a buyer’s obligation to inspect a property under Section 7 and of their rights and remedies under Section 8 in the event of a seller’s noncompliance. In notifying the public regarding the Act’s provisions and obligations, an airport authority would want to note that the meth- ods of giving a proper notice of termination of a con- tract are set forth in Section 8. Buyers, moreover, should be made aware of their right to actual damages and attorney’s fees and costs under Section 9 for a seller’s noncompliance, subject to a 1-year statute of limitations. Finally, if not unduly burdensome for an airport au- thority, it may want to contact neighborhood associa-