Uncovering A Buried Problem: Propane Tanks Often Not Conveyed In Home Sales
It is common in Cecil, Kent, and Harford Counties for a home to have a buried propane tank adjacent to its foundation. The 300 to 1,000 gallon propane tanks serve as the source of energy for home heating, hot water, and cooking. When a propane supplier owns a tank, the homeowner is usually forbidden by contract from purchasing propane from any other supplier. The supplier almost always charges a substantial premium for propane when it owns the tank versus when a homeowner owns the tank. Other suppliers are forbidden by law from filling a tank owned and marked by another supplier. See 98 O. A. G. 136, Maryland Attorney General Opinion sent to Cecil County State’s Attorney, November 21, 2013.
If you are considering purchasing a home in Cecil County that uses propane, then you should inquire with the seller about the ownership of the propane tank because it may not come with the property. Many realtors, purchasers and even experienced lawyers assume that propane tanks, as fixtures, come with the sale of the home. Generally, fixtures are included in the sale of real estate, under Maryland law, however, propane tanks are specifically excluded from this assumption when owned by a supplier. See Md. Real Prop. § 8 – 117. Passed in 1978, this law was originally drafted to be included in the Commercial Law addressing the refilling of marked propane containers, therefore, a Court might be persuaded that the legislative intent was to address only tanks in which the supplier took steps to mark the tank that later becomes the subject of a detinue action filed in District Court.
Though no Maryland court appears to have addressed the matter, a supplier’s failure to mark a tank or to record its ownership interest in the land records may warrant a counterclaim for violation of the Maryland Consumer Protection Act. A supplier, however, may assert that it need not mark tanks or file notices in the land records because a new owner could ask neighbors and such conversations would reveal that a large number of homes are served by the supplier. Such arguments may or may not prove persuasive in court. Regardless, the supplier may appeal given the potential for disruption of its business practices.
Even if a consumer could win at trial or on appeal, an aging propane tank is probably not worth the fight. A supplier will sometimes file a detinue or replevin action against the new homeowner in District Court as a matter of course if the new owner attempts to engage the services of another supplier or denies the supplier access to the tank. In many cases, a tank can be replaced for under $3,000. The cost of legal fees to fight for a tank can easily exceed the value of the tank. Until the legislature changes the 1970s era law or a new home buyer decides to fight a supplier, more detinue actions can be expected and unsuspecting home buyers be subject to additional and unanticipated expenses.