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Lead Paint Law Disclosure Violations Can Result in a Hefty Fine
The
U.S. Environmental Protection Agency (EPA) is keeping an eye on real estate
agents and property owners to ensure lead paint disclosure laws are being
followed in New England. A local company and several property owners recently
reached a settlement resolving EPA allegations that the companies violated lead
paint disclosure laws at rental properties in Boston and Rhode Island, costing
them over $300,000 in damages and repair work. The settlement is one of three
enforcement actions recently announced by the EPA in New England states
regarding violations of lead paint disclosure laws.
The
size of the penalties, in this case demonstrate how imperative it is for all
real estate agents to understand lead paint laws, properly convey them to
owners, potential buyers and tenants, and make proper disclosures in the correct
format, to avoid liability and fines.
Seller’s Responsibilities
It is
required by Massachusetts law (M.G.L. 111 S 197A) and Federal law (Title X,
Section 1018) that sellers of a house built before 1978 are legally required to
complete and sign the Property Transfer Lead Paint Notification form. Failure
to comply may result in legal action and liability. The Notification includes
information that explains the lead law, legal responsibilities and the hazards
of lead paint. The prospective purchaser has ten (10) days from receipt of
notice (or longer if mutually agreed) in which to conduct an inspection.
The
law requires the seller to provide the prospective purchaser with information
about the compliance status of the property, which includes notifying the
prospective buyer of the presence of lead paint and to provide them with any
reports pertaining to the presence or removal of lead, if any have been
prepared. The seller must sign the notification and a copy of the documents must
be provided to the prospective purchaser prior to the signing of the Purchase &
Sale Agreement. The buyer must sign the form provided to them, which has already
been signed by the seller. Therefore, the buyer’s signature acknowledges this
information and receipt of these documents.
Duties of Real Estate Licensees
The
real estate agent is required by the law to inform the seller of the seller’s
obligation to disclose and notify prospective buyers of the presence of lead
paint and make the seller aware of their responsibility to comply with the law.
The agent is also required to verbally inform the prospective buyer of the
possible presence of dangerous levels of lead, and their obligation to bring the
property into compliance with the Massachusetts Lead Law, if a child under six
will reside in the property. The Buyer is not required to have a lead paint
inspection however; the buyer only has 90 days after the purchase to bring the
home into compliance.
Compliance Issues Related to Rental Property
All
owners or managing agents or any real estate agent involved in the rental of
property built before 1978 must provide prospective tenants with the Tenant Lead
Paint Notification form and existing lead status documents (inspection reports,
letter of compliance or interim control letter). The Tenant Lead Paint
Notification form provides the tenant with information on lead poisoning,
specific prevention tips for parents, the requirements of the Lead Law, and an
explanation of the lead status documents. Contained within the document is the
Tenant Certification form to be signed by both parties to indicate that the
notification procedure was followed.
A
property owner is strictly liable for all damages associated with lead poisoning
resulting from their failure to comply with the Lead Law. The owner could be
responsible for medical costs, special education for an impaired child, and in
the case of knowingly violating the law, punitive damages in the amount of
triple the damages.
Property owners cannot use the Lead Law to discriminate against families with
young children. Children are a protected class in Massachusetts and
discrimination against them is a violation of Fair Housing Laws and it is
illegal to refuse to rent or sell to families with young children.
Further, owners of rental property may not evict tenants with young children,
harass tenants or raise the rent in an attempt to get tenants with young
children to vacate a property or require a blood test on a child as a condition
of renting.
Lastly, no owner may require or request the parent or guardian to sign a waiver
of compliance to the lead paint law. The law provides the right for a child
under six to live in a “lead safe” environment and that right flows directly to
the child. No adult, parent or guardian may waive the right of the child.
Article written by Bill Mullen, GBAR Counsel
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