| Requirements for lead
hazard disclosure are a key feature of Title X (the 1992 federal law that
strengthened and redirected lead poisoning prevention efforts). Under
these national requirements, prospective buyers and renters must be told
of known lead-based paint and lead hazards in properties built before
1978 and must be given a pamphlet
approved by the U.S. Environmental Protection Agency (EPA) with practical
tips about controlling hazards. In addition, prospective home buyers must
be given the opportunity to conduct a lead evaluation before purchasing
the property. Under the authority of Title X, EPA and the U.S. Department
of Housing and Urban Development (HUD) have issued regulations to implement
these disclosure requirements, which took full effect in December of 1996.
The following questions and answers provide information on these requirements.
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Q. What were the effective dates for the
lead hazard disclosure requirements?
A. The effective date for owners of more
than four residential dwellings was September 6, 1996. (A
dwelling can be a house or a single apartment unit.) As of
December 6, 1996, the requirements were effective for all
owners who sell or lease property covered by the disclosure
requirements.
Q. What sources of lead must be disclosed?
What about drinking water?
A. The disclosure regulations for real estate
transactions are limited by the definition of "lead-based
paint hazard" that was established in law by Title X.
That definition covers lead-based paint, lead-contaminated
dust, and lead-contaminated bare residential soil.
The disclosure regulations consistently use the phrase "lead-based
paint and/or lead-based paint hazards." Since that can
be a cumbersome phrase, people often use shorter phrases like
"lead hazards" when discussing this regulation,
but they are referring to the official definition that includes
paint, dust, and soil.
Nothing in the disclosure regulations covers lead in water. EPA has other
regulatory programs to address lead in water. However, if a property owner
knows about high levels of lead in their water, they may be obligated
to disclose that fact under other existing state laws or common law.
Q. Does the past or current presence of
a poisoned child have to be disclosed under the requirements?
A. NO. The preamble to the regulation explains
that this was considered, but decided against because children
are sometimes poisoned by causes other than lead hazards in
the home. Also among the concerns was the privacy of the affected
individual.
However, if a child living in the property was previously
identified as poisoned, there is a good chance that the health
department investigated the child's home. Any information
about lead hazards in the property developed through such
an investigation (or through a lawsuit) would be subject to
the disclosure requirements.
Q. Does this federal disclosure requirement
supersede existing state disclosure requirements?
A. NO. Nothing in the federal law or regulations
supersedes existing state requirements, so compliance by the
property owner with all state and local laws and regulations
is still required. However, the federal regulation is written
with sufficient flexibility that state officials may be able
to combine required lead disclosures into one process. Requests
about such state efforts must be directed to appropriate state
officials.
Q. Are purchasers required to use certified
inspectors and risk assessors for a lead hazard evaluation
during the 10-day period?
A. In states with contractor certification laws, yes—you
must use a certified professional. More than half the states already have
enacted certification programs. In states without such laws, not yet.
Eventually, all states will have either an EPA-approved state certification
program or an EPA-certification program for lead inspectors, risk assessors,
and abatement contractors. At that time, certified inspectors and risk
assessors will be required.
If your state does not now require certification of inspectors and risk
assessors, EPA and HUD recommend that you try to hire a professional licensed
or certified in another state, or at least try to find someone who has
successfully completed an EPA-approved training course. (Note that rental
property owners seeking the disclosure exemption for "lead-based
paint free" properties must use a certified lead inspector, even
in states without current certification programs.)
Q. I want to get a risk assessment (or inspection)
before I buy my house, but I don’t think I can find
someone to do the inspection within 10 days. What can I do?
A. The regulations allow for the 10-day
period to be lengthened, shortened, or waived altogether by
mutual agreement between the buyer and seller. You can extend
the time period in writing in your purchase offer, if you
need that extra time to get an evaluation.
Q. I want to get a risk assessment (or inspection)
before I buy my house, but the seller refuses to let me do
one. Can he/she do that?
A. It depends on where you are in the transaction.
Most buyers concerned about lead are expected to make their
offers contingent upon a satisfactory lead evaluation, which
means the sales contract will still be subject to negotiation
over the findings of the lead evaluation. This approach is
in compliance with the regulation, since the buyer would not
be obligated to purchase the home until the lead evaluation
contingency has been resolved with the seller.
Sellers who want to sell their homes are likely to favorably
consider offers containing lead evaluation contingencies.
However, sellers may reject a buyer's offers containing a
lead contingency, just like they may accept, reject, or make
a counter-proposal to any other term of a purchase offer.
And, sellers have no obligation to permit others to examine
their properties without a ratified contract.
Q. Can the purchaser cancel a sales contract
if the evaluation (inspection or risk assessment) identifies
lead-based paint or lead-based paint hazards?
A. The regulation does not explicitly give
the purchaser such a right; however, it does require that
such a testing period be completed before the purchaser is
obligated under a sales contract. Therefore, if a purchaser
agrees to buy a house by signing a sales contract in advance
of the lead evaluation, he/she must have an opportunity to
cancel the purchase after the evaluation. In practice, a contingency
to the sales contract like that used for conventional home
inspections offers the simplest route to ensuring compliance
and protecting the interests of both the seller and the buyer.
To avoid confusion if lead hazards are identified, such contingency
language should clearly specify the steps that each party
must take to resolve any issues raised by the lead evaluation
and remove the contingency or cancel the contract.
Q. How are foreclosures handled under the
regulations?
A. The regulations exempt properties being
sold at foreclosure from the disclosure regulation. In such
circumstances, the properties are almost always bought "as
is" with no opportunity for evaluations or inspections.
This exemption applies when the property title passes from
the delinquent owner to the new owner (possibly the mortgage
holder or possibly a member of the public who bids on a property
at a "sheriff's sale" or similar process).
Once the initial foreclosure process has occurred and another
party (including a bank) owns the property, the disclosure
regulations do apply to subsequent resale of the property.
Q. My landlord does not want to give me
a written lease to rent an apartment. Does he/she still have
to disclose information about lead hazards?
A. Yes. Owners of properties who rent through informal
rental agreements must fully comply with the notification and disclosure
requirements. It is not necessary to have a written lease to be subject
to disclosure. There has been some confusion about this point because
the proposed regulation suggested excluding oral leases—a decision
that was reversed in the final regulation.
Q. My landlord has inserted a waiver of
liability statement in my lease. Does the disclosure process
debase my landlord from legal liability in any way?
A. NO. The federal notification and disclosure
regulation does not relieve property owners of liability,
nor supersede their legal duties to provide a safe dwelling.
Some landlords may try to relieve themselves of liability
by attempting to insert a waiver into your lease. If you sign
a lease with such a waiver, it might limit your rights. You
should review prospective leases very carefully and, if you
have any questions, seek legal advice.
Q. The owner of the apartment I am considering
renting has told me it has some lead paint. The building is
generally well-kept, and the paint is not chipping or peeling.
I want to live in this neighborhood, but I do have a young
child. Should I be concerned?
A. Some concern is probably healthy, but it doesn't
sound like you should worry if the building is well maintained and the
paint is intact. Keep in mind that 40 percent of all US. homes and apartments
have some lead paint—and that the vast majority of children living
in them are not poisoned. You could ask the landlord whether Essential
Maintenance Practices are being followed. For example, has the maintenance
crew had basic training in lead? Do they do specialized cleaning for lead
dust after repair projects that disturb paint? If the building was built
before 1950, you could also ask whether a Lead Hazard Control Plan developed
by a certified risk assessor is being followed.
Q. My lease is being renewed and my landlord
just provided some information on lead paint. What can I do
to protect my family?
A. While it's the landlord's responsibility
to provide a property safe for habitation, there are several
things that you can do to avoid lead poisoning.
- Immediately report all maintenance
problems to the owner, including flaking and peeling paint,
binding doors or windows, and water leaks.
- Avoid damaging painted surfaces.
- Regularly clean areas where lead dust
may accumulate with a good detergent.
- Never allow unsafe practices to be
used on old paint (e g., dry scraping, abrasive blasting,
use of heat gun).
Q. I just signed a lease and my landlord
did not provide any information on lead. Isn’t the landlord
required to provide this information?
A. The vast majority of rental properties
built before 1978 are covered by the disclosure regulations,
but certain types of properties are exempted:
- properties built after 1977
- zero-bedroom dwellings (such as efficiencies,
dorm rooms, etc.)
- housing for the elderly or disabled,
unless occupied by a child under age 6
- properties leased for less than 100
days
- properties that have been found to
be "lead-based paint free" by a certified lead
inspector
- lease renewal where disclosure has
already occurred and no new information is available
(Also, if your lease was signed between September 6 and
December 6,1996, your landlord was not required to provide
the information if he/she owned fewer than five properties.)
Q. If I sublet my apartment, do I have to
comply with the disclosure regulations?
A. Yes, subleases are covered. However,
if the lease is shorter than 100 days, then that exemption
would apply.
Q. What about leases that have converted to month-to-month
status?
A. For leases that are on a month-to-month basis, disclosure
is not required until the terms of the rental agreement are significantly
changed in writing. For example, if the rent is changed, then disclosure
would be required.
For new leases that begin with an open-ended month-to-month
arrangement, disclosure is required up front unless the lease
term is limited to less than 100 days.
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