Detailed regulations issued by the federal Department of Housing and Urban Development and the federal Environmental Protection Agency which implemented portions of the Residential Lead-Based Paint Hazard Reduction Act of 1992 require owners of most pre-1978 housing units to disclose known lead paint hazards when selling or leasing targeted dwelling units. The goal of these regulations is to increase general awareness of the hazards of lead paint using property owners to transmit such information to the public. The federal regulations impose no duty on property owners to perform any new lead paint testing. Instead, the regulations focus on disclosing known hazards and providing mandatory warnings in sales agreements and leases.
Which Housing Units Are Affected By The New Regulations?
The regulations apply to virtually all housing units constructed prior to 1978 (hereafter, "target dwelling units"). Dwelling units constructed in 1978 and thereafter are exempt as the use of lead based paint was banned from residential use in 1978. Several other narrow exceptions to the regulations include:
- sales of dwelling units by foreclosure sale (but not resales thereafter);
- leases for less than 100 days (e.g. hotels and vacation rentals), provided there is no possibility for extension beyond 100 days; leases of zero bedroom dwelling units (e.g. efficiencies, lofts and dormitories);
- housing for the elderly (at least one occupant 62 years of age or older), unless a child also occupies the dwelling unit; housing for the handicapped, unless a child also occupies the dwelling unit;
- and rental units which have been inspected by a certified inspector and found to be free of lead base paint.
Clearly, most sales and leases involving pre-1978 dwelling units are subject to these regulations. Although a precise trigger date is never defined, the most conservative approach would be to apply the regulations to any dwelling unit for which a building permit or certificate of occupancy was issued prior to 1978.
What Is Required?
As of September 6, 1996, owners of four or more target dwelling units must comply, and, as of December 6, 1996, all owners of target dwelling units must comply with the regulations. The regulations are summarized below with any distinction between sales and leases noted.
- Informational Pamphlet. The first step for an owner, or owner's agent, is to provide the prospective buyer or tenant with the government-approved informational pamphlet entitled, "Protect Your Family From Lead in Your Home." Delivery of the pamphlet must occur before any contract, lease or binder is signed by the prospective buyer or tenant.
- Disclosure of Known Problems. Next, the owner, or the owner's agent, must disclose any lead paint problems concerning the target dwelling unit actually known to the owner.
- Mandated Warnings. Mandated warnings must be added to every sales contract or lease for a target dwelling unit (except as noted above). Although these warnings vary somewhat depending on whether a sale or lease is involved, both are designed to alert the prospective buyer or tenant to the wide-range of dangers of lead paint.
- Delivery of Existing Reports. The owner, or owner's agent, must provide to the prospective buyer or tenant any lead hazard evaluation reports available to the owner concerning the target dwelling unit. The regulations suggest that reports concerning other target dwelling units in a multi-unit complex are relevant to the sale/rental of every unit in the complex. The sales agreement or lease must identify all such reports, and the prospective buyer/tenant must acknowledge receipt of copies of the reports. The owner (or former owner in the event of a sale) must also maintain records of such reports for three years following the actual sale date or lease commencement date.
- Buyer's Contingency. The regulations also provide that a prospective buyer (but not tenant) must be given a contingency period to allow his or her own investigation of any lead paint hazard. While the regulation presumes a ten day contingency period, the parties are free to adjust the duration of the contingency period or, in fact, eliminate it completely by a written waiver. The critical concept is that the prospective buyer not be obligated under the contract until after the expiration of the contingency period.
- Agent's Responsibilities. Any agent engaged by the owner to assist the owner in selling or leasing a target dwelling unit who receives compensation from the owner must also comply with the regulations. The agent must sign a statement in the sales contract or lease confirming that the agent has informed the owner of the owner's obligations under the Act and acknowledging the agent's responsibilities to ensure compliance under the Act.
Although not technically part of the regulations, EPA and HUD have provided sample disclosure and inspection contingency clauses for use in sales contracts and leases. While some of the warnings are mandatory, much of the sample language can be modified to accommodate the specific transaction.
Failure to comply with the regulations can expose a homeowner to considerable civil and criminal liability. Owners are subject to civil penalties of up $10,000 for each violation. The Act also provides that any person who knowingly or willfully violates its provisions can, in addition to or instead of civil penalty, be subject to a fine of not more that $25,000 per day of violation or to imprisonment of not more than one year or both. In addition, the possibility of direct civil liability to the buyer or tenant also exists. The Act provides that any person who knowingly violates its provisions shall be jointly and severally liable to the purchaser or lessee in an amount equal to three times the amount of damages incurred by such individual. Failure to comply with the regulations does not void a contract or lease, but does expose the owner to the above-described civil and criminal actions.
State Law: Removal and Abatement
While these federal regulations focus primarily on the disclosure of known hazards, Connecticut law requires abatement of these hazards in some situations. On June 28, 1995, The Connecticut Legislature passed Public Act 95-204 entitled "An Act Concerning Lead Paint Abatement".
"The owner of any dwelling in which the paint, plaster or other materials contain toxic levels of lead and in which children under the age of six reside, shall abate or manage such dangerous materials consistent with regulations adopted pursuant to this section. The commissioner of public health shall adopt regulations, in accordance with the provisions of chapter 54, establishing removal and abatement requirements and procedures for materials containing toxic levels of lead.
The commissioner shall authorize the use of any liquid, cementitious or flexible lead encapsulant product which complies with an appropriate standard for such products developed by the American Society for Testing and Materials or similar testing organization acceptable to the commissioner for the abatement of toxic levels of lead, unless the commissioner disapproves the use of any such product. The commissioner shall maintain a list of all such lead encapsulant products that may be used in this state for the abatement of toxic levels of lead." Section 19a-111c of the General Statutes.
Failure to comply with this Act and the relevant state regulations will expose a property owner to both possible state action and independent civil claims by affected tenants.
The war on lead paint poisoning has escalated again. The federal government is determined to use the owner of target dwelling units as the means to the end for eliminating, or greatly reducing, lead paint poisoning throughout the country. Owners of pre-1978 housing units, whether single-family residences or multi-unit apartment buildings, must be aware of these responsibilities. Compliance with the regulations during each step of the negotiation process with a prospective buyer or tenant is mandatory.