Are you the buyer, seller, tenant, landlord or real estate broker involved with the sale or lease of a house, condo or apartment built before 1978? If you are, the federal Residential Lead-Based Paint Reduction Act (RLPHRA) applies to you.
Lead-based paint was banned by the Federal Consumer Product Safety Commission in 1978. The reason was lead-based paint exposure can harm individuals exposed to contaminated dust, soil or deteriorated paint. Small children are especially vulnerable if they play around or ingest lead-based paint chips.
Purchase Bob Bruss reports online.
To enforce this ban on lead-based paint and limit damages, in 1992 Congress enacted RLPHRA, which requires residential sellers, landlords and their real estate agents of pre-1978 residences to (a) disclose if they know of lead-based paint and (b) provide buyers and tenants with an information booklet about lead-based paint.
But the federal law does not require sellers and landlords to remove lead-based paint.
WHAT THE FEDERAL LAW REQUIRES. If a house, condo or apartment was built before 1978, it probably has lead-based paint. But that is not a serious health problem unless the paint is peeling or its dust might be ingested, especially by small children who are vulnerable to lead poisoning.
The RLPHRA requires home sellers and residential landlords of pre-1978 residences to provide buyers and tenants with lead-based paint disclosures, including (a) the Lead Warning Statement required by federal regulations, (b) a disclosure statement by the property owner of any known lead-based paint, and (c) a notice to buyers (but not prospective tenants) giving them a 10-day opportunity to obtain a professional lead-based paint inspection.
Home buyers can waive their 10-day inspection contingency period in writing. Short-term vacation rentals less than 100 days are exempt from these federal rules.
However, long-term leases and month-to-month rentals over 100 days of pre-1978 rental property must include the landlord’s lead-based paint disclosure. The disclosure form must include the lead warning statement, the landlord’s report of any known lead-based paint hazard, and the signatures of the landlord, tenant and real estate broker (if any).
WHY THIS FEDERAL LAW IS IMPORTANT FOR HOME SELLERS, LANDLORDS AND REALTY AGENTS. Just a few weeks ago, the First Circuit U.S. Court of Appeals ruled in an important decision involving Jason and Natasha Mason, both minors, who were diagnosed with elevated levels of lead in their blood. High levels of lead often lead to mental retardation and other physical problems, especially in small children.
Their mother rented a lead-ridden pre-1978 apartment and was not notified of the possible lead-based paint risk because the landlords did not comply with RLPHRA to notify her of the risk.
However, on a technicality, the appellate court ruled the landlords were not liable to the minor children because RLPHRA only applies to actual tenants and the minor children of the tenant did not have standing to sue for violation of RLPHRA. The case is Mason v. Morrisette, 403 Fed.3d 28.
Although the landlords were found not liable for their admitted failure to comply with RLPHRA disclosures, they had to pay their defense costs. If they were found liable, the penalty would have been treble damages as determined by a jury.
HOW HOME SELLERS, LANDLORDS AND REALTY BROKERS CAN AVOID LIABILITY. The purpose of RLPHRA is to inform home buyers and residential tenants of pre-1978 residences there might be lead-based paint in the property. But the federal law does not require sellers or landlords to remove the lead-based paint.
The easy way for home sellers, landlords and realty agents to avoid potential liability is to provide prospective buyers and tenants of pre-1978 property with (a) a copy of the Environmental Protection Administration (EPA) lead hazard information booklet “Protect Your Family from Lead in Your Home” and (b) the owner’s written disclosure of the lead-based paint warning, plus any specific information known about lead-based paint in the property.
The EPA lead-based paint booklet can be obtained on the Internet at www.epa.gov.
PENALTIES FOR FAILURE TO COMPLY. If a seller or landlord of a pre-1978 residence fails to comply with RLPHRA, in addition to the costs of defending a lawsuit, the potential liability is three times actual damages suffered by the home buyer or tenant, plus court costs and attorney fees.
The obvious solution is for the home seller or landlord to provide the lead-based paint disclosure booklet and the statutory disclosure form to prospective buyers and tenants.
Unless the residential property is in very bad condition, such as peeling paint, which obviously should be removed because it might harm small children, disclosure of the possibility of lead-based paint usually won’t harm the property seller or landlord. But, if a dangerous condition exists, the disclosure will alert the buyer or tenant to take precautions and seek further information. For more details about compliance with RLPHRA, please consult a local real estate attorney.
(For more information on Bob Bruss publications, visit his
Real Estate Center).
***
What’s your opinion? Send your Letter to the Editor to opinion@inman.com.
