With more and more residential property being advertised as “For Sale By Owner” (“FSBO”), it is important for both buyers and sellers to understand lead paint disclosure requirements.
The Massachusetts Lead Poisoning Prevention Act requires owners of residential property that have paint, plaster, soil and other accessible materials containing dangerous levels of lead to have these materials removed or adequately concealed if children under age six will live there. Sellers of residential premises built before 1978 must notify all prospective purchasers about the dangers of lead poisoning using the Department of Public Health’s (DPH) Childhood Lead Poisoning Prevention Program Lead Paint form, as further discussed below.
Federal regulations also require a home owner of residential real estate built before 1978 to disclose to a prospective buyer any information that the seller has about lead paint, and to warn the buyer of the hazards of lead paint. The DPH Property Transfer Notification Certification meets both Massachusetts and Federal law requirements (seller, buyer and real estate agent, if there is one, must all sign this form).
How Children Become Lead Poisoned
Children are most frequently lead poisoned by household lead paint dust created by flaking or peeling paint, opening and closing lead painted windows, or renovations to lead-painted surfaces. Children then ingest the lead when they put their hands, or other objects, into their mouth (e.g. their toys). Children can also be lead poisoned by mouthing lead painted surfaces and eating lead paint chips.
Complying with Lead Paint Law
1. Purchase and Sale of Residential Property: The seller, or the seller’s realtor, must provide the Property Transfer Lead Paint Notification Packet to the buyer for any structure built before 1978 that is being sold (or leased if there is an option to buy) before signing the Offer to Purchase. The buyer must then be given ten days to inspect for the presence of lead, unless this right is waived.
2. Rentals: You must provide a lead paint packet to new tenants along with the certification form which must be signed by the owner, tenant, and real estate agent. To comply with both state and federal Tenant Notification requirements, the owner must supply the prospective tenant with the following documents before entering into a rental agreement:
- Two copies of the Tenant Notification and Tenant Certification Form (one for the owner to keep and one for the tenant to keep);
- A copy of the most recent lead inspection or risk assessment report for the rental unit, if one exists; and
- A copy of any Letter of Compliance or Letter of Interim Control for the rental unit, if it exists (as further explained below);
3. Short-Term and Vacation Rental Notification: Short term vacation rentals are exempt from lead paint laws so long as: (1) the rental is for 31 days or less; (2) there is no chipping or peeling paint; and (3) the tenant has received the Short-Term Vacation or Recreational Exemption Form before creating the tenancy.
Child Under the Age of Six Lives at Property
- Have all Lead Hazards Removed or Covered: The home owner must first hire a licensed lead inspector to test the home for lead and document the presence of lead. Once adequate steps are taken and the property is approved, the home owner will receive a Letter of Full Compliance.
- Have only Critical Lead Hazards Corrected: In the alternative, the home owner may correct the most pressing risks and control other lead problems (this is called “interim control”) within 90 days of purchasing. The home owner must first hire a licensed risk assessor to explain what work needs to be done to temporarily address the issue. The home owner will receive a Letter of Interim Control once the work is approved. The home owner will then have up to two years to cover or remove the remaining hazards and receive a Letter of Full Compliance.
Violations of Massachusetts Lead Laws
Failure to adequately comply with lead paint laws can result in serious penalties, such as (1) all damages caused by noncompliance (e.g. all medical bills for a child who suffered from lead poisoning); (2) a $1000 fine; and (3) violation of 93A the Consumer Protection Act (for a successful plaintiff, 93A provides the possibility of triple damage remedies and an award for all costs and attorney’s fees).