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With its scenic and tranquil lakes and ponds, a great many people look to New Hampshire as a location for second residences that will serve as vacation homes, family retreats, and investment properties. Given the desirability of these types of properties, it's not surprising that willing sellers looking to dispose of their very own "On Golden Pond" idyll have no difficulty locating eager buyers. In such cases, however, the operative phrase is "seller beware": New Hampshire law (RSA 485-A:39) mandates an oft-overlooked procedure which must be followed in selling any "developed waterfront property" that uses a septic disposal system.

In New Hampshire, "developed waterfront property" is statutorily defined as:

• any parcel of land which is contiguous to or within 200 feet of tidal waters or a "great pond", i.e., a pond or lake more than 10 acres in area, and

• upon which stands a structure suitable for either seasonal or year-round human occupancy.

This law, sometimes called the "Waterfront Site Assessment" statute, does not apply to properties situated along or near rivers and streams. Nor does it affect conveyances in which "developed waterfront property" is the subject of a gift, or is transferred under the terms of a will.

However, for those properties that are covered by the statute, the owner must, prior to the execution of a purchase and sale agreement (or a "PSA") and at her expense, engage a permitted subsurface sewer or waste disposal system designer to conduct an on-site inspection, and to perform a site assessment study to determine whether the site meets the current septic system standards of New Hampshire Department of Environmental Services. The resulting site assessment study form becomes part of the PSA, and its receipt must be acknowledged in writing by the buyer.

Significantly – unlike other New Hampshire statutory disclosure requirements for residential real estate sales pertaining to lead paint, radon, and insulation – the Waterfront Site Assessment statute has some teeth: failure of the seller or his agent to comply with the statute is a violation and is punishable by a fine not to exceed $500.

Before putting his "developed waterfront property" on the market, a careful seller – or his representative – should consider whether the law applies to the property being sold. The first question to ask, obviously, is whether your property is served by a septic disposal system. If it is, consider whether the property lies on or near New Hampshire tidal waters or a "great pond." (Artificially enlarged bodies of water or impoundments qualify as "great ponds," so long as the lake or pond was more than ten acres in area prior to the installation of the dam.) Note that if you’re selling waterfront property for which a site assessment study has been conducted for a previous sale, and circumstances have not significantly changed on the premises, you and your permitted assessor may be able simply to update the previous study in lieu of conducting a new assessment.

It’s also worth noting that realtors sometimes fail to recognize those sales that must adhere to the requirements of RSA 485-A:39. In addition, the statute and the New Hampshire Department of Environmental Services regulations that implement the statute are fairly complex. Both of these factors are good reasons why a careful seller will enlist the assistance of counsel when selling waterfront property.