In 1978, the federal government banned lead-based paint from housing and required home sellers and landlords to disclose any known information about lead paint in the property to prospective buyers and tenants. And as of April 22, 2010, contractors who renovate more than two square feet of painted surfaces built before 1978 must be certified lead-safe under guidelines issued by the Environmental Protection Agency.
In addition to the federal disclosures, many states (including those in the Washington area) have their own disclosure form that must be provided to prospective buyers or tenants.
Recently, the District’s Department of the Environment (DDOE) significantly revised the lead disclosure form that sellers and landlords must now provide before they can enter into a lease or a real estate sales contract.
Under federal law, the disclosure need only state what is known to the property owner. Now, however, under the new D.C. disclosure form, property owners must not only disclose what is actually known but — according to the instructions issued by DDOE — “must also disclose what it is reasonable for them to know about such presence.”
DDOE gives this example:
If an owner has not applied a new coat of paint in the past 20 years on his pre-1978 property, “it is reasonable for the owner to know that the paint is no longer in intact condition.” Therefore, the owner must disclose that lead-based paint hazards are present “in the form of deteriorated presumed lead-based paint.”
The department makes it clear that District law is significantly different from federal law and accordingly, property owners must use both the federal as well as the District disclosure form. For example, although federal law does not require disclosure for foreclosure sales of pre-1978 residential housing, there is no such exemption under D.C. law. But federal law requires landlords and property owners to provide a pamphlet prepared by the EPA called “Protect Your Family From Lead in Your Home,” and D.C. law requires landlords to provide that material only if the owner learns of the presence of lead when tenants are residing in the property.
DDOE proudly says that the District’s definition of “lead-based paint hazard” is stricter than the federal definition and makes it clear that owners who use the District’s Lead Disclosure Form “must use the District law’s definition.”
Under D.C. law, the definition includes “presumed lead-based paint.” What does this mean and how are property owners to determine if something is presumed? Once again, the District provides an illustration:
If an owner knows there is peeling paint on his pre-1978 residential property, that paint “is presumed by District law to be lead based paint, and because the paint is in deteriorated condition, it is a lead-based paint hazard” under D.C. law and must be listed that way on the District’s Lead Disclosure Form.
This definition is printed on the form itself and will clearly be the subject of much litigation. The EPA, for example, points out in one of its lead paint fact sheets that “in most cases, lead-based paint that is in good condition is not a hazard.” So if the property owner did some spot painting five years ago to cover selected areas of peeling paint, is this “presumed”? Is this “known”?
What should property owners who plan to rent or sell their homes do to avoid the risk of fines and sanctions by the District or, worse, a lawsuit by a buyer or a tenant? First, the safe harbor is to obtain a report from an inspector certifying that the dwelling unit is lead-free. Once you have that report, you can just provide a copy to your prospective buyers or tenants instead of completing the disclosure form.
Next, if the inspector does not give you a clean bill of health, hire an EPA-certified contractor to remediate the situation. The EPA has another pamphlet called “The Lead-Safe Certified Guide to Renovate Right.”
Finally, confirm with your hazard insurance carrier that you will be properly covered by your insurance policy should you be sued by a family who claims your property caused injury. Your carrier will want to make sure that you have properly corrected any lead-based hazard.
Lead is harmful to children as well as adults. Lead is harmful to people living anywhere in the world, so just because disclosure laws in Maryland and Virginia track the federal law, that may not be sufficient if someone is injured because of the lead paint in your property.
Preventive action is needed. Don’t wait until you are sued.
The new D.C. form can be located at ddoe.dc.gov/publication/rental-housing-lead-paint-disclosure-form.
Benny L. Kass is a Washington lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.