Do Owners and Landlords of Older Buildings Need to Worry About Lead-Based Paint?
Lead paint in older housing threatens the health and development of children, even those in utero. In response to shocking numbers of children with high lead levels in their blood, government at all levels highly regulates the sale and lease of housing units constructed before 1978. Any owner or landlord of such property has significant responsibilities and should consult with a knowledgeable real estate attorney to understand applicable federal, state and local laws.
Lead was an oil-based paint ingredient from around 1900. In 1972, the federal government started regulating the level of lead in residential paint and in 1978 lead was limited to a trace amount. Older housing is at higher risk because lead-free latex paint became increasingly popular beginning in the 1950s.
The ingestion of contaminated peeling paint and dust causes lead poisoning. Young children are especially at risk because of their proximity to dusty floors and windowsills, and to contaminated soil around buildings, and because of their propensity to put into their mouths objects, particularly paint chips, as well as their dirty hands. Because of deteriorating inner-city housing, minority and low-income kids are at higher risk.
Short- and long-term effects of lead poisoning include:
- Brain and nerve damage
- Mental retardation, learning disability and reduced IQ
- Vision and hearing impairment
- Memory problems
- Interference with growth
- Kidney injury
- Fatigue, irritability, hyperactivity, and attention and behavior problems
- Anxiety and depression
Sometimes lead poisoning is asymptomatic and can silently hurt a child unbeknownst to the parents or doctor, and it can take years for the condition to manifest. A child with symptoms or who has spent time in a lead-infested building should take a blood test and possibly a follow-up bone test.
Property owners must take care in the renovation of older homes because restoration and repair can release more lead-laced dust. Before undertaking paint-disturbing activity, owners should understand applicable regulations and may be required to contract with a licensed expert for at least some of the work. Government assistance may be available to help with the cost of such repairs.
The main federal law regulating residential lead-paint exposure is the Residential Lead-Based Paint Hazard Reduction Act of 1992 (also referred to as Title X). Title X applies to virtually all US housing built before 1978 and requires before finalizing any contract for sale or rental that a seller or lessor:
- Give the potential buyer or tenant a government-approved brochure about lead-paint hazards
- Provide copies of inspection and evaluation reports
- Include in the contract or lease a lead-warning statement and confirmation of compliance with notice requirements
- Reveal any known facts about lead paint on the property
In addition, the seller must offer a 10-day period during which the potential buyer can do his or her own lead-paint inspection. A seller's real estate broker also has responsibilities under Title X. Lessors are exempt from the disclosure requirements if the premises have been certified free of lead.
State and local law, both statutory and judge made, often require additional actions of sellers and lessors, sometimes even affirmatively requiring testing and abatement, especially when young children occupy the premises. Usually owners and landlords may not avoid such regulation by refusing to deal with families with young children; this may violate anti-discrimination laws.
In general, violators of lead-paint laws, especially knowing violators, may receive civil and criminal penalties, and may be subject to private lawsuits for injury based on statutes and common-law theories like negligence, negligence per se, breach of contract, breach of the duty to repair rental property, intentional infliction of emotional distress, strict liability and breach of the warranty of habitability. Tenants may be able to sue for repair and abatement of the dangerous condition, as well as for money damages.
In particular, Title X imposes harsh consequences for violations of its disclosure requirements, including intervention by the US Department of Housing and Urban Development (HUD), and for knowing violations, civil fines and triple damages to wronged purchasers, as well as court costs, and legal and expert-witness fees.
The law demands that lead paint in residential settings not be taken lightly. A landlord, property owner or other potentially responsible party like a real estate agent, property manager, manufacturer, appraiser, contractor, inspector, lender or insurer, should retain a skilled real estate lawyer to help him or her to comply with the many and complex lead-paint laws.
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