As most of us know, there is a risk of lead-poisoning (especially among children) for those who live in homes which have lead-based paint. In fact, the National Safety Council now estimates that over 1.7 million children in the United States have blood-lead levels above safe limits, mostly due to exposure to lead-based paint hazards. As a result, Congress passed the "Residential Lead-Based Paint Hazard Act of 1992." This law directed the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD) to require the disclosure of known information on lead-based paint hazards before the sale or lease of most housing built before 1978 (the year after lead-based paint was outlawed). The EPA and HUD have responded with a set of comprehensive regulations concerning these disclosures. The regulations take effect on September 6, 1996, for those who own four or more residential units and on December 6, 1996, for those who own less than four such units. If you intend to lease or sell a home or apartment built before 1978, you must comply with these regulations.
First of all, you should be aware that the rules do not require you to conduct any testing or remove any lead-based paint from your property. Rather, the rules only require that you provide certain information to potential purchasers and tenants, if the housing is a covered type. Covered types of dwellings include all residential units built before 1978, except:
(a) "Zero-Bedroom" units, such as efficiency apartments, dormitory rooms, etc;
(b)housing for the handicapped or elderly (unless children are also living there);
(c)leases for less than 100 days (such as vacation rentals, etc.);
(d)rental housing which has been inspected and found to be free of lead-based paint by a certified inspector; and
(e)foreclosure sales.
To comply with the rules, sellers and landlords must provide potential buyers or tenants with a pamphlet developed by EPA titled "Protect Your Family from Lead in Your Home". The rules indicate that EPA and HUD may approve other alternative pamphlets in the future, but, for now, this is the only acceptable pamphlet. Sellers and landlords must also disclose known lead-based paint and lead-based paint hazards and provide buyers or tenants with any available reports concerning the property and such matters.
In order to ensure that proper notice is given, the rules require that any covered lease or sales agreement contain specific language and notices advising the tenants or buyers of their rights to such notices. In addition, buyers (but not tenants) must be provided with a ten-day period to conduct a lead-based paint inspection or risk assessment (at their own expense), if they so desire.
Brokers and real estate agents involved in a transaction have a duty to advise sellers and landlords of their responsibilities under the rules and to see that the seller or landlord complies. However, the broker or agent who advises the seller or landlord of his duties is not liable for the failure of the seller or landlord to disclose matters of which the broker or agent is unaware.
In order to prove that proper notices and disclosures were made, any transaction should be documented and appropriate acknowledgments executed. EPA and HUD recommend that this documentation be maintained for three years after the transaction.
Those who violate the rules are subject to a variety of sanctions. Civil and/or criminal penalties of up to $10,000.00 may be imposed. In addition, if a non-complying party is sued by a purchaser or tenant, the law authorizes an award of three times the actual damages, plus attorney’s fees, expert fees, and court costs. Obviously, non-compliance carries with it a significant risk of financial expense. Sellers, landlords and real estate agents must therefore be careful to meet the requirements of the new rules. If you anticipate being involved in a transaction of this type, you should consult your attorney to be certain that proper notification is given and documented.
©2000 Gamble Mojock Piccione & Palmer, LLP