Lead Paint Liability: Navigating The Risks Of Rental Investments

If you're considering buying a rental investment property, it's important to be aware of the potential presence of lead paint, especially in older buildings. Lead paint was commonly used in the past due to its practical benefits, but it was later discovered to be toxic, leading to its ban in 1978. As an investor, you should know the associated risks, disclosure requirements, and ways to address this issue. Older homes, particularly those built before 1978, are likely to contain lead paint, which can pose serious health hazards, especially to children. Federal and state laws mandate disclosure of any known information on lead paint to potential buyers and tenants. Understanding the legal responsibilities and taking appropriate steps to address lead paint will help ensure a safe environment for your tenants and protect you from potential lawsuits and penalties.

Lead paint dangers: health risks and toxicity

Lead paint has been used since the 4th century BC, and its dangers have been known about since the early 20th century. It was banned in the US in 1978, but it is still present in many older homes, and it can cause serious health issues. Lead paint is toxic because lead is a metal that can build up in the body over time, affecting almost every organ. It is stored in the bones, blood, and tissue, and can be released back into the body as bones demineralize over time.

Lead poisoning can occur through swallowing, inhaling, or absorbing lead through the skin, with the most common sources being lead-based paint and lead-contaminated dust in older buildings. Lead paint chips can be eaten, and lead paint dust can be inhaled, with children under six being particularly vulnerable due to their tendency to put their hands and other objects in their mouths. Lead paint can also be dangerous for pregnant women, as it can be released into the blood during pregnancy, exposing the fetus.

The health effects of lead poisoning can be severe and include damage to the brain and nervous system, reproductive problems, kidney damage, behavioural issues, and reduced intelligence. Even small amounts of lead can cause serious health problems, and there is no known safe level of lead exposure. Lead poisoning can be fatal at very high levels.

To protect against lead poisoning, it is important to assess older properties for the presence of lead paint and to have it removed by a professional if found. Simple measures such as regular handwashing, cleaning dusty surfaces, and removing shoes before entering the house can also help reduce the risk of lead exposure.

Disclosure requirements for sellers and landlords

Disclosure Requirements for Sellers:

Before finalising a contract for the sale of a property, sellers are required by federal law to provide buyers with specific information and disclosures regarding lead-based paint. This applies to most buildings constructed before 1978, as they are more likely to contain lead-based paint. The specific requirements for sellers include:

• Providing an EPA-approved information pamphlet: Sellers must give buyers the "Protect Your Family From Lead In Your Home" pamphlet, which is available in multiple languages. This pamphlet educates buyers about identifying and controlling lead-based paint hazards.
• Disclosing known information: Sellers must disclose any known information about the presence of lead-based paint or lead-based paint hazards in the property. This includes information on the location of the lead-based paint and the condition of the painted surfaces.
• Providing records and reports: Sellers must provide any available records and reports related to lead-based paint or lead-based paint hazards. For multi-unit buildings, this includes information about common areas and other units obtained through a building-wide evaluation.
• Including a "Lead Warning Statement": The sales contract must include an attachment or specific language confirming that the seller has complied with all notification requirements. This attachment should be provided in the same language as the rest of the contract.
• Allowing time for inspection: Sellers must provide buyers with a 10-day period to conduct a paint inspection or risk assessment for lead-based paint. This timeframe can be mutually adjusted with the buyer's agreement, and the buyer may also waive this inspection opportunity.

Disclosure Requirements for Landlords:

Similar to sellers, landlords have specific disclosure requirements when leasing properties that were built before 1978. These requirements are in place to protect tenants, especially children and pregnant women, from the health risks associated with lead exposure. Here are the key disclosure requirements for landlords:

• Providing an EPA-approved information pamphlet: Landlords must give new tenants the "Protect Your Family From Lead In Your Home" pamphlet, which is available in multiple languages. This pamphlet educates tenants about the risks of residential lead exposure.
• Disclosing known information: Landlords must disclose any known information about lead-based paint or lead-based paint hazards in the rental unit and the building. This includes information about common areas and other units if obtained through a building-wide evaluation.
• Including a "Lead Warning Statement": The lease agreement must include an attachment or specific language confirming that the landlord has complied with all notification requirements. Both the landlord and tenant must sign and date this attachment.
• Obtaining tenant acknowledgement: Before moving in, tenants must sign a form acknowledging that they understand the risks associated with lead-based paint and have received the required pamphlet and information.
• Providing inspection opportunities: If requested by a prospective tenant, landlords may be asked to obtain a lead hazard inspection from a certified inspector before the tenant signs the lease. While this is not mandatory, it can help fill the unit.
• Record retention: Landlords must retain copies of the signed disclosures for at least three years from the date the lease begins. These records can provide legal defence in the event of tenant health issues related to lead poisoning.

Both sellers and landlords are responsible for complying with these disclosure requirements. Failure to do so can result in civil and criminal fines, and tenants may also take legal action if they suffer health consequences due to lead exposure.

Testing for lead paint: professional vs DIY

If you're considering buying a rental investment, it's important to be aware of the presence of lead paint, especially in older properties. While lead paint was banned in 1978, it is still present in many homes and can pose serious health risks, particularly to children.

When it comes to testing for lead paint, you have two main options: hiring a professional or doing it yourself with a DIY kit. Here's a detailed comparison of the two options:

Professional Lead Testing

Hiring a licensed professional to test for lead paint offers several advantages. Professionals use X-ray technology to detect lead in multiple layers of paint, providing more accurate and reliable results. They can inspect every surface of your home, including walls, windowsills, baseboards, and other painted areas. This comprehensive approach ensures that all potential sources of lead are identified.

Additionally, professionals can assess the condition of the lead paint and advise on the best course of action for remediation. They can determine whether the paint is cracked, exposed, or adequately covered by non-lead-based paint. This information is crucial for understanding the level of risk and deciding on the appropriate remediation method.

While hiring a professional may be more expensive, it provides greater peace of mind and ensures compliance with health and safety regulations. It is worth noting that the cost of professional lead removal can range from $8 to $17 per square foot, according to HomeAdvisor.

DIY Lead Test Kits

DIY lead test kits are widely available at hardware stores and home improvement centers, offering an affordable and convenient option for testing lead paint. These kits typically use one of two reagents: sodium rhodizonate or sodium sulfide. The test involves scraping or peeling the paint, exposing all layers, and then swabbing the area with the reagent. If lead is present, the swab will change colour, with rhodizonate tests turning red or pink and sulfide tests turning black.

It is important to choose the right type of test kit for the colour of paint being tested. Rhodizonate kits may give false positives on red or pink paints, while sulfide kits can produce inaccurate results on dark paint. To ensure accuracy, it is recommended to test the same area more than once and use an EPA-recognized test kit, which has a 95% accuracy rate.

DIY lead test kits are ideal for initial screening or when renovating on a budget. However, they have limitations and may not provide the same level of accuracy and reliability as professional testing.

Both professional lead testing and DIY test kits have their advantages and disadvantages. While DIY kits are affordable and easily accessible, they may not always provide accurate results, especially for certain paint colours. On the other hand, professional testing offers greater accuracy, reliability, and peace of mind, but at a higher cost.

Ultimately, the decision between professional and DIY testing depends on your budget, the scope of your project, and the level of accuracy required. If you plan to renovate or disturb painted surfaces, it is always best to prioritize accuracy and opt for professional testing to ensure the health and safety of your tenants.

The cost of removing lead paint

The average cost for lead paint removal is $3,514, but this can range from $1,481 to $5,614, or even as high as $20,000, depending on the amount of lead paint present and the chosen removal method.

For example, the average cost of lead paint encapsulation is $4 per square foot, whereas the average cost of lead-based paint removal is $13 per square foot. Encapsulation is a cheaper option but is not a permanent solution, as it only seals the paint to prevent exposure. Removal, on the other hand, is more expensive but provides a permanent solution.

Other methods include enclosure, which averages $10 per square foot, and chemical stripping, which ranges from $10 to $17 per square foot. Enclosure involves covering the lead-painted surface with drywall or panels, while chemical stripping uses chemicals to lift the paint, which is then vacuumed up.

In addition to the direct costs of removal, there may be additional costs for post-removal repairs, especially if the lead has contaminated the surface it was painted on.

It is worth noting that removing lead paint can be dangerous, and it is recommended to hire a licensed professional to ensure the job is done correctly and safely.

Lead paint lawsuits: tenant rights and landlord responsibilities

Lead paint is a serious health hazard, particularly to children, pregnant women, and unborn children. Inhaling or ingesting lead can lead to a range of health issues, including behavioural and learning problems, lower IQ, hyperactivity, slowed growth, hearing problems, and anaemia. In rare cases, ingestion can result in death.

In 1978, the federal government banned the manufacture, sale, and use of lead-based paint. However, this law did not require homeowners to remove existing lead content from their properties. As a result, older properties, particularly those built before 1978, are likely to contain lead-based paint.

Tenant Rights

Tenants have the right to know if they are moving into a property with lead-based paint. Landlords are required by law to disclose any known information on lead-based paint and lead-based paint hazards before the lease of a property built before 1978. Landlords must also inform tenants about the hazards of lead paint, not just its presence.

Tenants can request a lead hazard inspection if they suspect their rental property contains lead-based paint. If landlords are aware of lead-based paint but do not disclose it, tenants who suffer injuries can sue for damages, such as medical costs associated with lead poisoning.

Landlord Responsibilities

Landlords must assess their property to determine if it contains lead-based paint, especially if the property was built before 1978. While landlords are not required to test for lead paint, it is advisable to hire a professional inspector to test for its presence.

Landlords must provide tenants with an EPA-approved pamphlet that discusses lead-based paint hazards. They must also disclose any known lead-based paint applications in the property, including the location and condition of the paint. Landlords should also inform tenants of any measures taken to remove or cover the paint with a non-lead-based alternative.

This information should be included in the lease agreement, using a "Lead Warning Statement" to ensure tenants are aware of the potential risks.

Failure to comply with lead paint laws can result in significant consequences for landlords, including fines, civil penalties, and potential criminal charges. Courts may also award tenants up to three times the amount of their damages, as well as court costs and attorney's fees.

Frequently asked questions