QUERIN LAW: Lead Based Paint

iStock_000002909062SmallIf inhaled or swallowed, lead can be very toxic, especially to small children.  If ingested, it accumulates in the body’s bones and other tissues and is known to impair the physical and mental development of children and aggravate blood pressure problems in adults.  In older homes lead is principally found in the paint and plumbing.

In 1992, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act, directing the Environmental Protection Agency (EPA) and the U.S. Department of Housing and Urban Development (HUD) to establish regulations requiring disclosure of lead-based paint and lead-based paint hazards in the sale or lease of residential housing constructed before 1978, which is referred to in the Act as “target housing.”  On March 6, 1996, the EPA and HUD issued the final rules known as “Title X Regulations.”  Compliance for owners of four or fewer residential properties began on December 6, 1996.  The Lead-Based Paint law affects most private housing, public housing, Federally owned housing, and housing receiving Federal assistance.

Even though the regulations are directed toward owners of residential property, they also provide that any real estate agents involved in the transaction must ensure that the seller’s disclosure obligations to the buyer are met.

Sellers, as well as real estate agents, can be held liable for federal penalties of up to thousands of dollars, as well as costs and attorney fees for noncompliance with the regulations.  Intentional violations may also result in civil liability for three times the amount of the actual damages incurred by the buyer.  However, real estate agents cannot be held liable for information intentionally withheld by their sellers.

Here is what the law requires be disclosed in the sale or leasing of most residential housing:

  • Give an EPA-approved information pamphlet titled “Protect Your Family From Lead In Your Home.”
  • Disclose any known information concerning lead-based paint or lead-based paint hazards.
  • Provide any records and reports on lead-based paint and/or lead-based paint hazards which are available to the seller or landlord.
  • Include a Lead Warning Statement as an attachment to the sale contract or lease which confirms that the seller or landlord has complied with all notification requirements.
  • If requested, sellers must provide home buyers a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. The time period may be mutually lengthened or shortened.

Seller/Landlord Tip: Rarely do prospective buyers or tenants ask for a LBP inspection or assessment for target housing.  However, the consequences of failing to deliver the necessary information and forms can be significant. First, the sale or lease agreement is not legally binding until compliance has occurred.  Second, there can be sizeable fines for intentionally or negligently ignoring the law.  Third, tort liability is potentially significant in those cases in which an injury has occurred.