RE20R01: Lead Paint – Residential Sales and Rentals

RE20R01: Lead Paint – Residential Sales and Rentals

1. Summary –Why Lead is an issue
   1.   A.        General History of Use of Lead in Building Product; plaster, paint, pipes, etc.
   2.   B.        What is lead poisoning and who is at risk?
   3.   C.        How does someone get lead poisoned, what are the symptoms and how it is detected?
   4.   D.        What are the effects of lead poisoning and what are the treatments
2. “The Lead Law” as a combination of both federal and state law

Federal and State Law Requirements

1. Disclosure. Applies to properties constructed prior to 1978.

Form Notice Disclosure: State Form Satisfies Federal and State Disclosure Requirements.

1.          a.        Sales or Leases with Option to Purchase
2.          b.        Rentals
3.          c.        Vacation Rentals
4. Timing:
   1.          a.        Prior to the time the Parties are bound in contract

The federal law explicitly states, that to comply with federal lead disclosure, that “before the purchaser or lessee is obligated under contract to purchase or lease” the lead notification must be given. U.S. Code Sec. 4852d(a).

1. The Right to Inspect for the Presence of Lead based hazards.
   1.          a.        Sales or Lease with Option to Buy.
      1.                  i.        Statutory Right: ten day opportunity to inspect for the presence of lead base hazards
      2.          b.        Rentals
         1.                  i.        Tenants have a right to ask to have the property inspected
         2.                 ii.        If the property has lead and a prospective tenant has a child under six, the landlord may delay the tenancy for up to 30 days.
         3.                iii.        New owners must bring property into compliance within ninety (90) days of purchase
   2. Lead Paint and Unlawful Discrimination
      1.          a.        Residential Sales:

A seller may not discriminate under the Lead Law:

1.                  i.        because a prospective buyer has children under the age of six
2.                 ii.        has asked about lead
3.                iii.        has included a lead inspection contingency with an offer to purchase
4.          b.        Residential Rentals:

A Landlord may not:

1.                  i.        refuse to rent to because of the presence of lead
2.                 ii.        charge a tenant for the cost of the deleading
3.                iii.        enter into a contract limiting a landlord’s obligation to delead or liability under the statute

The Landlord must:

1.                iv.        delead or bring make lead-safe property where a child under six resides
2.                 v.        subject to the right to delay a new tenancy for up to thirty days, the landlord is responsible for finding alternate housing during the period of deleading

A Landlord may be held strictly liable for lead poisoning of a child, regardless of actual knowledge of the presence of lead paint. If the apartment is subject to a Letter of Compliance or Letter of Interim Control by a licensed lead inspector, the Landlord may not be held liable, rather a plaintiff must prove they acted negligently in order that the Landlord be held liable.

A Landlord sued by the parents acting on behalf of a child who suffered lead paint poisoning may not file a cross-complaint or counter-suit against the parents for negligence. Rather, the Landlord must defend the suit, and if found liable, sue the parents in a separate action within one year of the entry of judgment against the Landlord.

1. Duty to Delead, Abatement and Interim Control

Massachusettslaw compels the abatement of lead-based materials in dwelling units where a child under six resides. The law is designed to protect children under six years of age that permanently reside in a dwelling that contains lead.

1. Penalties for Non-Compliance with Lead Law for Sellers, Landlord and Real Estate Agents

.      Federal and State law allow civil and criminal penalties for failure to give lead notification, Penalties for violations

1. Monetary penalty
   Civil Penalties under state law up to $1,000 and under federal law up to $10,000 per offense..
2. Action by Government
   Offenders may face injunctions ordering them to cease in violations
3. Civil liability and Costs
   Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual under federal law. Also under federal law, a court may award court costs to the party commencing such action, together with reasonable attorney fees and any expert witness fees, if that party prevails. Under state law, real estate agents, property managers and certain landlords and sellers, where applicable, may be subject to civil liability under the Consumer Protection Statute, M.G.L. c. 93A, which allows award of up to two or three times actual damages and attorneys fees.
4. Other Prohibited acts/Fines
   It shall be a prohibited act under section 409 of the Toxic Substances Control Act (15 U.S.C. 2689) for any person to fail or refuse to comply with a provision of this section or with any rule or order issued under this section. For purposes of enforcing this section under the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), the penalty for each violation applicable under section 16 of that Act (15 U.S.C. 2615) shall not be more than $10,000.
5. Federal 42 U.S.C. Sec. 4851-4856
6. CommonwealthofMassachusettsM.G.L, c. 111 Sections 189A-199B 105 C.M.R. Sections 460 et seq.

“The Lead Law” is both federal and state law, with state law requiring affirmative duties on the part of owners to de-lead or make their properties “lead safe” rather than simple notification.

1. Mechanics of Compliance For Brokers and Salespersons

.      Notifications/CLPPP Forms. If properly filled out and given, comply with both federal and state law

Transfer Notification Certification
(Residential Sales or Lease with Option to Purchase)

Tenant Notification Certification (Residential tenancies)

Short-Term Vacation or Recreational Rental Exemption Notification (Vacation Rental)

1. Filled out by the Seller or Landlord
2. Tenant or Prospective Buyer Acknowledges Receipt of FILLED OUT Notification, which includes reports
3. Broker acknowledges compliance with duties to inform owner and prospective buyers and tenants
4. Record Maintenance
5. Fines and Civil Penalties

1. Lead Paint Inspection
   1. The Right to Inspect
   2. Duty to Delead
   3. Contingencies in Offers to Purchase or Purchase andSaleAgreements

Short-term Vacation or Recreational Rental Exemption Notification (Dwelling units rented or occupied for vacation or recreational purpose for a period of 31 days or less)

1. Abatement and Certificates of Compliance

.      Three Categories of Risk and Who May do the Work

Break down work that must be done by licensed and what work may be done by unlicensed persons and training requirements. Explain process for being approved to do certain work

1. Low Risk Abatement
2. Moderate Risk Abatement
   1. What it is
   2. Who may do it/Certification Requirements
   3. High Risk Requiring Licensed Persons

.      Inspectors are Licensed by Dept. of Public Health

1. DeLeaders are Licensed by the Dept. of Labor
2. Disclosure During Renovations

Pre-Renovation Lead Information Rules

1. Application

.      Property constructed prior to 1978 and renovation project will disturb more than 2 square feet of paint.

1. Renovations done by a person for compensation
2. Notice Requirements to Owner and Tenants
3. Pamphlet: Protect Your Family From Lead in Your Home
4. Funding Abatement

• Tax Credits
• Funding Options

1. Liability Issues Review

• Failure to Give Disclosures
• Strict Liability for Lead Poisoning
• Effect of Certificates of Compliance and Negligence Standard

Laws and Resources for Instructors and Students

Federal 42 U.S.C. Sec. 4851-4856
(Specifically Discuss Section 4852d)
Commonwealth of Massachusetts M.G.L, c. 111 Sections 189A-199B
105 C.M.R. Sections 460 et seq.

Case Law.

Instructors may wish to discuss broker liability in relation to recent case law:
Piers v. Wheeler & Taylor, Inc. No. 960088 (Jan. 26, 1998) Superior Court, Berkshire SS

Suggested Handouts:

• Transfer Notification Certification
  (Residential Sales or Lease with Option to Purchase)
• Tenant Notification Certification
  (Residential tenancies)
• Short-term Vacation or Recreational Rental Exemption Notification
  (Dwelling units rented or occupied for vacation or recreational purpose for a period of 31 days or less)
  (Regulations governing Short-Term Vacation Rentals are found at 105 CMR 460.100(D). See also CLPPP Publication Protocol for Maintaining Intact Paint in Vacation Rental Property)

Links for Additional Information and Material:

http://www.mass.gov/dph/clppp/

Other Sources

• The Real Estate Desk Book, A Broker’s Guide to Consumer Protection, Procuring Cause and Commissions, Philip S. Lapatin, Esq., GreaterBoston Real Estate Board, 1999
• Landlord Rights and ResponsibilitiesMassachusetts Association of REALTORS® andMassachusetts Office of Consumer Affairs and Business Regulations
• Tenant Rights and ResponsibilitiesMassachusetts Association of REALTORS® andMassachusetts Office of Consumer Affairs and Business Regulations