Lead Reduction Efforts
Nov. 20, 2022
To help continue the national strategy to eliminate lead-based paint hazards, Congress passed into law the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851). This legislation included an amendment to the Toxic Substances Control Act (Title IV: Lead Exposure Reduction), requiring the Administrator of the U.S. Environmental Protection Agency (EPA) to impose new requirements to identify and reduce environmental exposure to lead hazards.
For landlords, the new law requires disclosure. Landlords must inform potential tenants that lead is present in rental properties (and distribute a pamphlet on lead approved by HUD and the EPA), before a lease is signed. If the tenant has young children, disclosure may prevent those children from being exposed to lead. If the landlord can’t rent the property, that may force its sale to someone who will do lead abatement (or, the landlord may at last have the lead professionally removed). Failure to either inform tenants or abate the property can result in treble damages awarded to an injured tenant, damages that must be paid by the landlord. In all cases, these measures are likely to ensure one less potential hazard for children.
Similar principles apply between sellers and buyers of homes: disclosure to potential buyers — if the presence of lead is known to the seller — is mandated by law. And potential buyers also have the legal right to obtain a lead inspection (as they do for radon, termites, and asbestos). If lead is found, such a finding may allow them to renegotiate the selling price downward to accommodate the cost of abatement. Or, it may allow them to rescind a prior agreement to buy. In addition, once lead has been found on the property, all future interested parties legally must be informed.
The legal mandates affecting lenders and borrowers, insurers and the insured all pertain to disclosure at the time of a transaction. If a sum is borrowed for renovating a property, the lender has an incentive to be certain that the property value will not be diminished by the discovery of lead. And Federal Housing Authority (FHA) and other government-insured loans will require lead inspections. For insurers wishing to protect themselves from claims, excluding lead coverage will serve as a red warning light to potential insureds, and they will learn of the presence of lead (if it exists) on the property they wish to insure.
When homeowners hire contractors to improve their property, those contractors can be held legally responsible if they do work that creates lead dust or uncovers Lead-Paint. So contractors are mightily encouraged to test for lead before they begin work. The homeowner can hold contractors legally accountable if they do not live up to this mandate. As for the real estate industry’s private sector, the law will inevitably build demand for lead free (or, at least, lead-safe) homes, while creating “lead consciousness” among consumers in a position to buy, rent or renovate.
In the arena of public housing, the law puts forth stringent new regulations including the imposition of direct requirements on the owners of purely public housing to conduct risk assessment, implement interim controls, complete inspections and conduct abatements based on existing guidelines and future regulations.
The federal government, too, is forced to become a “model landlord” by provisions in the Hazard Reduction Act. The government now has an expanded duty to abate property constructed prior to 1960 and 1978. Fines against federal agencies that fail to comply can be as much as $10,000.
There are many other safe-guarding provisions put forth by the new law in an effort to reduce the hazard of leased-based paint for children. Congress has finally become sufficiently disturbed by its own findings regarding the toxic effects of lead to take significant, first-step action. As one such finding reads, “the health and development of children living in as many as 3,800,000 American homes is endangered by chipping or peeling lead paint, or excessive amounts of lead-contaminated dust in their homes.”
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