April 2018 marks the 50th anniversary of the passage of the Fair Housing Act in the United States. In commemoration of Fair Housing Month, today’s Legal Brief will discuss discriminatory practices and lead paint testing.
The Massachusetts lead paint law (most recently modified in December 2017) applies to structures built before 1978, where a child under the age of six resides. The law specifically stipulates that property owners must remove or cover (encapsulate) dangerous levels of lead on window sills measuring five feet or less from floor, stair tread or ground, from handrails and from railing caps. All other “Accessable/Mouthable” (“A/M”) surfaces only need to be at an intact standard for compliance. “Friction” (or “F”) surfaces, which include door edges, door jambs and stair treads, require de-leading of all points of potential friction, stair treads will need to be de-leaded in their entirety, and these surfaces cannot be encapsulated.
Whenever any residential premises containing dangerous levels of lead in paint, plaster or other accessible structural material undergoes a change of ownership and as a result a child under six will become or will continue to be a resident therein, the new owner shall have 90 days after becoming the owner to obtain a Letter of Full Compliance or a Letter of Interim Control. Further, the owner’s legal obligation exists regardless of the owner’s knowledge of the presence of lead paint.
As such, any new owner with a child under six must address this issue within the first 90 days they reside in the property or they will be in violation of the law after that period. Further, current owner’s who reside in the property with a child under the age of six who had not previously tested for lead paint, cannot now refuse a buyer’s right to test for fear that lead paint will be found on the property and they will be found to be in violation.
In property sales, the Childhood Lead Poisoning Prevention Program requires owners of property built before 1978 who are selling or leasing with an option to purchase and any agent who is involved with the sale or lease to provide prospective purchasers with information regarding the compliance status of the property. Also included in this information is a Property Transfer Lead Paint Notification package explaining the Lead Law, legal responsibilities, the hazards of lead paint, etc.; a copy of any lead determination inspection, risk assessment and/or compliance documents; information about lead poisoning which occurred at the property; and information about any criminal complaints that have been brought against the owner for violations of the Lead Law.
A real estate agent has the following responsibilities in property sales:
(1) Read or allow the buyer to read the Notification form;
(2) Verbally inform the buyer of the possible presence of lead and the provisions of the Lead Paint Law;
(3) Verbally inform the buyer of the availability of a lead paint inspection; and
(4) Have the buyer sign the Notification form that has been filled out by the seller of the property.
Note: Sellers and real estate agents are in violation of the federal and Massachusetts law if the buyer signs the Notification form prior to receipt of the Seller’s written responses on that form.
Although Massachusetts law states that the completed Property Transfer Lead Paint Notification form must be acknowledged by all parties prior to the signing of the purchase and sales agreement, the Notification form must actually be signed by both parties prior to the acceptance of any offer, in instances where an Offer To Purchase Residential Real Estate is utilized, because such offer is a binding contract for the sale of the property and the Purchase and Sale Agreement is simply a reiteration of the terms of the offer with other terms and conditions for performance thereunder. The law allows the buyer 10 days in which to have a lead inspection performed. If lead is discovered, the buyer may withdraw from the sales transaction.
Does a seller have the ability to refuse to allow a potential buyer to perform a test for lead hazards on a property? No, any potential buyer has an absolute right under Federal and State law to perform such testing prior to becoming obligated under a sales contract. But can the seller legally instruct the listing agent to inform all potential buyers to waive this right, or that they will reject an offer? No, any instructions along these lines would potentially give rise to a fair housing violation for discriminatory practices against families with children under the age of six and lead to liability on behalf of both the seller and listing broker for participating in discriminatory behavior.
Similarly, a property owner cannot refuse to sell or lease property to a person(s) with children under the age of six in order to avoid the lead paint law requirements. If a seller does, the property owner will be discriminating against families with young children in order to avoid testing or de-leading a unit with a rental. As such, a listing broker must follow all the lead paint laws to inform consumers of their rights under the law and avoid potential liability. Listing brokers must beware of potential liability for participating in discrimination if property owners refuse to follow the law, or instruct you to avoid following lead paint or fair housing laws.
Are there penalties if an owner or brokers fail to comply with the lead paint law notification requirements? Yes, M.G.L. chapter 111, section 197A(e), states that an owner who fails to comply is (1) liable for all damages caused by the failure to comply (including medical expenses and special education expenses); (2) a penalty of up to $1,000; and (3) subject to a M.G.L. chapter 93A (Consumer Protection Act) lawsuit if the person is in the real estate business (e.g. a real estate broker or builder). In addition, all Federal and State penalties under fair housing laws are also applicable, including, but not limited to, actual damages, punitive damages, injunctive relief, civil penalties upwards of $10,000 for a first offense and loss of your business and broker’s licenses.
Following all applicable lead paint and fair housing laws is a sound business decision.