New Lead Paint Laws in Effect
Robert S. Griswold
New rules concerning disclosure of the presence of lead-based paint or lead-based paint hazards have gone into effect nationally, affecting virtually all housing built before 1978. In San Diego, as elsewhere, the new rules have great impact on apartment rentals and on the sales of single-family homes, mandating that people selling or leasing most residential housing must provide purchasers and renters with a federally approved lead hazard information pamphlet and disclose known lead-based paint and/or lead-based paint hazards. The joint regulations by the federal Department of Housing and Urban Development and the Environmental Protection Agency went into effect Dec. 6 and apply to single-family houses and apartment buildings with four or fewer units.
Owners of more than four residential units built before 1978 have had to comply with the new disclosure requirements since Sept. 6, 1996. According to the EPA, more than 64 million residences in the country contain some lead paint, or about 80 percent of U.S. housing building before 1978. Lead poisoning attacks the nervous system and can cause brain damage and other problems. Children are especially susceptible to such poisoning from paint chips, dust particles and other exposure, health experts say. More than 1.7 million children under the age of 6 have unsafe lead levels in their blood, much of it from exposure to paint, according to the EPA. Virtually all private housing built before 1978 now is included in the lead-based paint rules and is termed target housing. However, there are limited exceptions to the new rules including:
The rules require sellers and/or lessors of targeted housing to do the following before a contract or agreement for sale or lease can be considered ratified:
1) Provide the buyer or lessee with copies of any available records or reports pertaining to known lead-based paint and/or lead-based paint hazards existing anywhere on the premises (e.g. all living spaces and common areas such as stairwells, lobbies, recreation rooms, laundry rooms, etc.). Owners must disclose this information based on their actual knowledge of whether the target housing contains lead hazards. Note that there is no requirement to perform any inspections or to remove any lead-based paint/hazards, but merely to disclose.
2) Provide the buyer or lessee with the lead pamphlet developed jointly by the EPA, HUD and the Consumer Product Safety Commission, titled "Protect Your Family From Lead in Your Home." This pamphlet describes ways to recognize and reduce lead safety hazards. Copies can be purchased from the San Diego County Apartment Association (297-1000) or from a local Board of Realtors. Owners may also choose to distribute complete and legible photocopies of the pamphlet after obtaining camera-ready copies from the National Lead Information Center at (800) 424-LEAD.
3) The buyer or lessee must execute an acknowledgment of receipt of the "Lead Warning Statement," the seller's or lessor's lead-based paint hazards disclosures, and the EPA pamphlet. There are federally developed acknowledgment forms available from the same sources as the EPA pamphlet above or an owner or property manager can develop his or her own form or incorporate the form into existing purchase/lease documents as long as it contains all of the required elements. All parties must sign and date the form, and it must be retained for three years from the completion of the sale or the commencement of the lease or rental agreement. Sellers (but not lessors) of targeted housing must also offer the prospective buyer 10 days to inspect for lead-based paint and lead-based paint hazards. This 10-day inspection period can be increased, decreased or waived by written agreement between buyer and seller. It is also important to note that the new regulations do not require the seller to pay for an inspection or to remove any lead-based paint/hazards, but merely give the buyer the opportunity to have the property inspected. A list of state-certified lead inspectors and contractors is available at no cost by calling the California Department of Health Services at (800) 597-LEAD. While some of the specific interpretations of the new requirements are still being resolved, in August 1996 EPA and HUD issued some additional interpretive guidance for the real estate community. For example, the new disclosure rules apply to month-to-month rentals at the time of the initial agreement unless the parties have specifically limited the term to not exceed 100 days. Where a fixed-term lease reverts to a month-to-month agreement (very common in San Diego), the EPA and HUD interpret renewal to occur at the point when the lessee becomes obligated to the change in the rental period. That means at the time the lease expires and the rental converts to the month-to-month status, the owner or property manager must comply with the new lead-based paint/hazards regulations. Many owners may choose to simply notify all existing residents immediately and then notify each new tenant upon unit turnover. The EPA and HUD indicate that this is acceptable except that where disclosure is made in advance of a specific lease renewal, the owner must disclose any new information that becomes available.
ROBERT S. GRISWOLD, a Certified Property Manager, is host of KSDO Radio's "Real Estate Management Today!" An Associated Press report was used in compiling this column.
Copyright Union-Tribune Publishing Co.
Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.
Revised and Updated - Wednesday, April 26, 2006
Robert S. Griswold, CRE, CPM, CCIM,
PCAM, GRI, ARM
©2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996 Robert S. Griswold.
All Rights Reserved.