Lead Paint Compliance is a Major Issue for Multi-Family Investors: Massachusetts
By John P. Wells, Wellsco Realty Newburyport
You cannot have children under the age of six as tenants in a property that has lead paint, as nearly all properties do that were built before 1978. You cannot refuse to rent to a family with children under six. If you are buying a multi-family and you discover that there are children under the age of six currently living there, then you will be inheriting an illegal situation.
You will need to notify the tenant of the lead paint situation (there is a specific form for this), and then you have 60 days to delead from the date of your acquisition. If you do so you have complied with the law, but you remain liable for any damage to a child caused by lead paint during that period.
A buyer recently bought a 2-family with the intent to live in one unit and rent out the other. The seller provided a certificate for the 2nd floor unit stating that it had been deleaded. Because the buyer wanted to delead the downstairs unit, he called in an inspector. The inspector told him that someone had tried to delead the downstairs unit illegally and it was done wrong. He then went upstairs and found that was done wrong too. It turned out the certificate was fake and the person who produced it wasn’t licensed.
If a property has been illegally deleaded, a new buyer can within a certain period of time step in and correct the situation. It is interesting to note that the compliance standards for deleading have been greatly simplified and it is no longer a major expense to be in compliance. All friction surfaces such as door and window jams need to be deleaded, but most surfaces are in compliance as long as the paint is intact and maintained. Once chipped it is no longer in compliance so a landlord must remain alert and inspect the property regularly to make sure it remains in compliance, unless fully deleaded. A compliance letter is only valid the day it is written, unless you have 100% deleaded.
To see if a house has been legally deleaded, check this website: https://eohhs.ehs.state.ma.us/leadsafehomes/default.aspx. It will show you the status of any lead paint inspections and procedures.
The overriding policy of the Mass. Lead Paint Law is to encourage full disclosure of all lead paint related issues and give buyers the opportunity to test for lead paint before they purchase a home with lead paint. Unlike rental properties, however, there is no obligation on the seller to de-lead prior to a private sale. But common sense dictates that a lead-free house may be more valuable and marketable, and this is particularly true for multi-family properties where tenants with children under six years of age may in any event trigger the de-leading requirements of the law.
Further, penalties for non-compliance with the disclosure requirements are quite stiff. Sellers and real estate agents that do not meet the requirements can face a civil penalty of up to $1,000 under state law and a civil penalty of up to $10,000 and possible criminal sanctions under federal law for each violation. In addition, a real estate agent who does not meet requirements may be liable under the Massachusetts Consumer Protection Act, which provides up to triple damages.
The cost of deleading has dropped substantially due to changes in the requirements. We will be happy to refer you to a specialist.
What does the lead law require?
The Lead Law requires the removal or covering of lead paint hazards in homes built before 1978 where any children under six live. Lead paint hazards include loose lead paint and lead paint on windows and other surfaces accessible to children. Owners are responsible with complying with the law. This includes owners of rental property as well as owners living in their own single family home. Financial help is available through tax credits, grants and loans.
How does an owner comply with the lead law?
There are two ways:
- Have all lead hazards removed or covered. The owner must first hire a licensed lead inspector who will test the home for lead and record all lead hazards. After the work is approved, the owner will receive a Letter of Full Compliance.
- Have only urgent lead hazards corrected, while controlling remaining hazards. This temporary method is called interim control. The owner must first hire a licensed risk assessor who will explain what work needs to be done for interim control.
After the work is approved, the owner will receive a Letter of Interim Control. Owners then have up to two years before they must have the remaining lead hazards removed or covered and receive a Letter of Full Compliance.
Who can remove or cover lead hazards?
Some work must be done by a licensed deleader. However, an owner or agent (someone working for an owner without a deleader's license) can perform some specific tasks. An owner or agent cannot begin any of those tasks until:
- The home is inspected by a licensed lead inspector
- The owner or agent is properly trained to perform the deleading work
For more information about what work may be done by an owner or agent and how to become trained, call the Childhood Lead Poisoning Prevention Program at 1-800-532-9571
Can a rental property owner be held liable for a lead poisoned child?
Yes. If a child is lead poisoned by lead hazards where the child lives, the owner is legally responsible. An owner cannot avoid liability by asking tenants to sign an agreement that they accept the presence of lead paint. Complying with the Lead Law is the best protection an owner has from liability.
Can an owner evict or refuse to rent to a family with children under six if there is lead paint in the home?
No. An owner cannot evict or refuse to rent to anyone because of lead paint. Discrimination is against the law and carries penalties.
John P. Wells
Broker/Owner Wellsco Realty
Partner, Multi-Family Property Exchange