Many homes and apartment buildings constructed before 1978 contain lead-based paint. While the presence of lead paint, in and of itself,
does not necessarily pose a hazard to a
dwelling’s tenants, it can be harmful to
young children under the age of 5 if the
integrity of the painting surface is compromised by chipping and peeling. Lead
exposure claims are especially pervasive
in inner-city areas that typically have older
housing.
“As a person in the rental property business, it is very important to protect oneself from childhood lead exposure claims
or lawsuits,” says Rebecca Filiatraut, partner at Secrest Wardle.
Smart Business spoke with Filiatraut
about how to protect oneself from lead
exposure claims, how the remediation
process works and what type of legal liabilities can arise.
How can landlords/property owners protect
themselves from lead exposure claims?
First and foremost, a property owner
should have his rental property inspected
by a certified lead remediator if it was built
before 1978 to determine if there are any
lead paint hazards present. If there are
lead hazards at the property, he or she
should hire a certified lead remediator to
perform the repairs in order to prevent the
spread of lead dust and chips during the
process. Secondly, whether or not the
property contains or has ever contained
any lead-based paint hazards, the owner
must provide Title X disclosure statements
as well as the EPA pamphlet titled ‘Protect
Your Family From Lead in Your Home’ to
all tenants at the inception of their leases.
It is also wise to obtain a signed and dated
statement from the tenant acknowledging
receipt of these materials.
Title X disclosures provide the tenant
with a written statement by the landlord
indicating if the property has ever tested
positive for any lead paint hazards. The
requirements of Title X are federally mandated and are strictly enforced by the
Environmental Protection Agency. A landlord or property owner can obtain copies of these documents either from their local
health department or from the EPA Web
site located at www.epa.gov.
In addition, any complaints from tenants
about chipping or peeling paint conditions
should be promptly and thoroughly investigated by the property owner.
How does the remediation process work?
Remediation of lead hazards can be a
costly and time-consuming process. If a
child is found to have an elevated blood
lead level by his or her pediatrician, a
referral to the appropriate health department is usually made. Following referral
to the health department, an inspection
will be conducted to determine the actual
source of the child’s exposure. If it is determined by the health department inspector
that the rental property does have areas of
hazardous chipping and peeling lead paint,
a written notice will be sent to the owner
of the property, and the owner will have a
period of time within which to complete
all repairs, usually 30 to 60 days.
Occasionally, it is possible to receive a
grant to cover the cost of the remediation
through HUD or even Section 8.
If the landlord or property owner
intends to perform the remediation work
him or herself, it is extremely important to
remember to completely encapsulate,
preferably with Visquine, the area being
remediated in order to contain any lead
dust, which could contaminate other
areas of the property, including the soil
surrounding the property itself. The area
being remediated must also be wet-sanded, as dry sanding will only serve to
spread the hazardous lead paint dust and
further contaminate the subject property.
What type of legal liabilities can arise from
lead exposure?
If a child is found to have an elevated
blood lead level due to exposure determined to have occurred while living at a
particular property, legal liability may
result. A child may be entitled to receive a
monetary sum to compensate him or her
as a result of damages due to the high lead
levels. These damages can include loss of
IQ points, learning disabilities requiring
special education, behavioral problems,
and other related brain or neurological
damage. Certainly, the damages in these
cases can be very significant.
Additionally, if a landlord or property
owner is found to have knowingly violated the requirements of Title X, liability
may be deemed admitted and the only
issue remaining for the trier of fact will be
damages. Outside of the context of civil
liability, a fine can also be imposed by the
EPA against a property owner who has
not provided the requisite Title X information to his tenants. This fine could be
up to $10,000 per property. In recent
years, the EPA has been conducting independent audits of landlords and property
owners across the country to determine
compliance.
REBECCA FILIATRAUT is a partner at Secrest Wardle. Reach her at (248) 539-2827 or [email protected].