Lead Hazard Disclosure: Tell What You Know

May 24, 2009

Federal law requires housing providers to disclose to potential renters and buyers the presence of lead-based paint hazards on the premises. Almost all housing built before 1978, whether subsidized by HUD or not, is covered by the disclosure law. The penalties for noncompliance can be substantial, not only from the agencies enforcing the rules, but also from negligence suits from residents who are harmed by the presence of lead.

Federal law requires housing providers to disclose to potential renters and buyers the presence of lead-based paint hazards on the premises. Almost all housing built before 1978, whether subsidized by HUD or not, is covered by the disclosure law. The penalties for noncompliance can be substantial, not only from the agencies enforcing the rules, but also from negligence suits from residents who are harmed by the presence of lead. Violations are subject to Environmental Protection Agency (EPA) and HUD enforcement, and there are also many state and local laws regarding lead-based paint that housing providers must comply with.

What You Need to Know About Federal Disclosure

The federal disclosure law covers both housing for rent and housing for sale, if the housing was built before 1978. The law applies whether or not a child lives there or will live there.

A standard lead warning and disclosure form is available from HUD and the EPA, though you may develop and use your own form. Before signing a lease, you must also give applicants a copy of a pamphlet titled “Protect Your Family from Lead in Your Home,” which is also available at no charge from HUD and the EPA.

The applicant's signature on the disclosure form is an acknowledgement that she has read the required warning statement and your disclosure and received the pamphlet. If the disclosure form is required for your site, it is a required attachment to the lease.

You must provide the disclosure form and pamphlet whenever the lease is renewed, modified, or renegotiated, unless you have received no new information on the subject and you have already provided the residents with the disclosure information and the pamphlet.

You and your resident must sign, date, and initial the disclosure form in multiple places. You must initial once in section (a) and once in section (b), and sign and date the bottom. The resident must initial section (c) and section (d), and sign and date the bottom. Keep the completed form with the lease.

On the form, you must disclose lead-based paint hazards that exist in the unit and/or in common areas, whether inside or outside. If there are no hazards to disclose or no reports pertaining to the unit and/or common areas, write “None” on the form. If the unit and/or the common areas have a paper trail documenting lead-paint remediation, you must provide applicants with the pertinent records and list them on the form.

According to HUD guidance, you must disclose all known information, including information that shows that the lead-based paint or lead-based paint hazards at your site have been corrected. You may summarize or excerpt documents as long as you provide free access to the full documents to the applicant on request.

PRACTICAL POINTER: The required lead hazard pamphlet can be found, in English, Spanish, and several other languages, at HUD's Web site, at: http://www.hud.gov/offices/lead/library/lead/pyf_eng.pdf. The disclosure form is also available there in English and Spanish.

What Constitutes 'Knowledge' of a Hazard?

Once you become aware of a lead hazard at your site, you must take action to remedy it, and you must disclose it to current and future residents. Some courts have ruled that a site owner can be considered “aware” of a lead hazard based on his general professional experience and knowledge. In other words, courts can assume that you as a site owner or manager know that lead-based paint is found in older homes, and that it poses a health hazard to children. Thus, you have a responsibility to investigate complaints if children live in your housing.

For instance, in 2008 an Ohio court said that notice from a resident that paint in a unit is chipping and peeling is not in itself the same as an outright notification of the presence of lead-based paint in the premises. However, when combined with evidence showing the owner's knowledge that lead-based paint generally exists in older housing, a court must question whether the owner knew, or should have known, of the lead hazard on his premises. In the Ohio court's view, the owner's knowledge that his housing site probably contained lead-based paint and that its woodwork was chipping created a duty to inquire [Richardson v. Boes, November 2008].

Comply with State and Local Laws

Keep in mind that there are state and local laws on lead paint, and their requirements are sometimes stricter than federal laws. For example, a law in New York City establishes a presumption that, in any multiple-unit building built before 1960, peeling paint in a dwelling unit occupied by a child 6 years of age or under comprises a hazardous lead condition. The owner has a duty to repair and to take reasonable steps to abate the lead hazard.

In addition, HUD rules establish certain requirements for disclosure and abatement. Consult your attorney to be sure you are meeting all responsibilities.

EDITOR'S NOTE: For more information on lead paint requirements, see “HUD Cracks Down on Owners for Lead Paint Violations,” Insider, August 2007, p. 1.

  • EPA lead-based paint regulations: 40 C.F.R. Part 745.100.

  • HUD lead-based paint regulations: 24 C.F.R. Part 35.

  • Lead Information Clearinghouse: (800) 424-LEAD (5323); http://www.epa.gov/opptintr/lead/pubs/nlic.htm.

  • Residential Lead-Based Paint Hazard Reduction Act of 1992: 42 USC §§ 4851 et seq.

 

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