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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.