LEAD BASED PAINT--THE LAW AND
LANDLORDS EPA LEAD BASED PAINT DISCLOSURE AND FORMS (includes 9/15/2000 HUD update)
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Lead based paint is cited as the number one
environmental threat to children. Abnormally high levels of lead can cause
damage to the nervous system and cause other health problems, particularly to
young still developing ones.
The federal Environmental Protection Agency (EPA)
and Housing and Urban Development (HUD) issued joint regulations, known as the
"Disclosure Rule," which became effective September 6, 1996. The rule
requires that landlords and their agents of certain rental housing disclose the
possible presence of lead based paint on the premises before the effective date
of any lease or rental agreement. Landlords and their agents must provide the
tenant with an EPA approved lead hazard information pamphlet and comply with
other requirements as set forth below.
The property
is covered if it was
constructed (that is, the first construction permits were pulled) before 1978,
and it does not fit into one of the following exceptions:
1.
0-bedroom units such as
lofts, efficiencies and studios.
2. rentals of dwelling units for less than a total of 100 days
(but periodic tenancies, e.g., month to month, which may go on for more than
100 days are covered). This exception is designed to cover arrangements such
as vacation homes.
3. designated
housing for the elderly or
handicapped unless it is expected children will live there.
4. housing that has been inspected by a
certified inspector and found to be free of lead based paint.
The disclosure must be made before the effective
date of the rental agreement.
There are consequences to the failure to disclose. In the event of lead poisoning which
can be traced to lead hazard in the rental unit, the landlord would be liable
for triple the tenant's actual damages plus penalties. This would probably not
be covered by the landlord's insurance. These would probably be in the nature of
a penalty, which insurance cannot cover as a matter of public policy.
The disclosure form (downloadable below) requires
the landlord to disclose and explain known lead based paint or lead based paint
hazards on the premises, or to state that the lessor has no knowledge of such
paint or hazards. The landlord must provide to the tenant any records or reports
in the landlord's possession disclosing such hazards. If, for example, the owner
received a report through escrow from the former owner when the building was
sold to him disclosing areas of lead based paint hazard, copies of such reports
would have to be provided to the prospective tenant. If the report is
voluminous, it may be extracted, so long as the extracts are in context and
understandable. If there are no such reports, the disclosure requires the
landlord to say so. There is space on the form for the lessee to acknowledge
that he has received such reports and information that exist, and a federally
composed lead hazard pamphlet (downloadable below). If the disclosure is made by
an agent for the owner, the agent must certify that he has informed the owner of
his responsibilities regarding disclosure, which is provided for under
"Agent's Acknowledgement." Then all parties must sign. A pre-printed
or rubber stamp signature is sufficient for the owner.
The landlord is obligated to provide one copy of
the EPA pamphlet for each rental unit, but not one for each rental agreement
signatory. Each time a fixed term lease is extended or a new lease with an
existing tenant executed, a new disclosure must be made. The rule is not
entirely clear about periodic tenancies, but a prudent landlord will want to
give a new disclosure whenever he obtains new information about lead hazards on
the premises.
The law neither exculpates the landlord if he
complies, nor does it increase his potential exposure through disclosure. The
landlord assumes no duty to remove lead based paint or for that matter, to
correct lead based paint hazards (although there are probably local building
codes which will have to be complied with in any event). The federal law, at
this point, simply requires the disclosure of these things, permitting the
tenant to make an informed choice of whether he wishes to rent the premises.
The following documents are available for
download in PDF format and were published by the Environmental Protection Agency
on line as of March 3, 1999.
Interpretive Guidance for the Real Estate Community on
the Requirements for Disclosure of Information Concerning Lead-Based Paint in Housing Part I
Interpretive Guidance for the Real Estate
Community on the Requirements for Disclosure of Information Concerning
Lead-Based Paint in Housing Part II
EPA/HUD Fact Sheet
Protect Your Family From Lead in Your Home, the
pamphlet which must be provided to the tenant in:
English or
Spanish
Lessor's Disclosure of Information on Lead-Based Paint
and/or Lead-Based Paint Hazards,
the required disclosure form
EPA and HUD Real Estate Notification and
Disclosure Rule Questions and Answers
SUPPLEMENT
HUD has issued new
regulations pertaining to lead paint disclosure and removal in certain types of
housing. It is important to emphasize that these regulations to not affect
owners of pre-1979 housing who do not participate in certain types of subsidies.
The new regulations, which went into effect on September 15, 2000, affect
federally owned housing and owners of housing receiving a federal subsidy such
as project-based Section 8, housing occupied by a family that receives a voucher
or certificate, public housing, federally owned housing in the process of being
sold, multifamily housing for which a federal mortgage is being requested, and
housing that receives federal assistance for rehabilitation or other purposes.
IREM has produced an
exhaustive
analysis of the new regulations – complete with impressive charts, etc.
– that is a must read for all landlords who think they might come under these
new regs. The bulk of the treatment of the new abatement rules and how
they interface with the old regulations is in the final half of the article.
In the meantime, though, HUD has come to the realization that regardless of how
much they might want all this lead paint removed, there is practically no one in
the country – no one at all in some states – who knows how to do it.
For this reason, they have designed a phase-in period, which you can study in
this
PDF document.
Due to the complexity of the new regulations,
we recommend that landlords who believe their property may be subject to the new
rules contact the HUD Lead Paint Compliance Assistance Center in Washington,
D.C., full contact information can be found in the PDF document linked above.
