What Owners, Landlords, and Property Managers Need to Know
By: Howard S. Goldman, Esq.
While lead-based paint, having been banned in 1978, may seem like a distant memory for most of us, the presence of lead-based paint in older condominiums and apartment buildings poses some very real challenges for landlords and property managers today. The state and federal laws with respect to lead-based paint set up a strict set of rules for residential property owners and managers which must be adhered to closely in order to avoid large fines and other potential legal ramifications.
The lead-based paint laws (“Lead Laws”) require that lead paint hazards must be remediated in residences built before 1978 if a child under six years old lives there. The process of lead remediation (“deleading”) requires that a certified lead inspector perform an evaluation of the residence and thereafter certain discovered lead paint hazards must be deleaded in accordance with the Lead Laws. The remedy varies depending on the type of surface that is found to contain lead and the concentration of lead on that surface. Not all lead paint requires deleading. In general, surfaces which are impacted, such as window sills and door frames, along with surfaces that can be accessed by a small child must be deleaded only if the lead concentration is higher than 1.0 mg/cm2. Lead hazards on other surfaces, such as metal or those which are impossible to be accessed by children, only need to be made intact so that paint chips and dust do not contaminate the residence— for these no deleading is required.
These requirements pose a variety of problems for property owners and managers. In addition to the requirements of deleading, the Lead Laws also prevent any landlord or property manager from evicting or refusing to rent to a family that has a child under the age of six. This provision was added to the law to prevent housing discrimination. Landlords who are found to be in violation of this provision can be subjected to significant financial penalties.
Apartment buildings and condominiums present an additional layer of complexity because the Lead Laws require that, in addition to the unit, certain portions of the common areas in such buildings must also be deleaded. In the context of such multi-unit buildings, owners and property managers may find that they must delead common areas and exterior surfaces in order to be in compliance with the Lead Laws. Common areas include hallways, stairways, passageways, or other interior spaces between dwelling units, as well as exterior areas that are shared by occupants of multi-unit residential properties. But importantly, interior common areas extend only from the basement to the floor on which a child under six lives, and do not include common areas to which a child has no possible access.
As applied to condominiums, a single unit owner or tenant who has a child under six years old may cause the condominium owners’ association to pay for deleading of certain portions of the common areas and other unit owners to pay for the deleading of certain unit owners’ exterior features which are accessible to children (i.e. windows). Should such a situation present itself, it is important to carefully analyze the master deed and declaration of trust for the condominium, in order to determine which impacted or accessible lead hazards may be attributable to individual unit owners, and which hazards are in common areas can be attributable to the association as a whole.
If you own or manage a condominium or rental property that was built before 1978, be aware that your building may contain lead-based paint which will need to be deleaded if a child under 6 years old moves into a unit within the building. Since the law prevents you from refusing tenants, which may trigger the deleading requirements, it is prudent to have considered the implications of renting to such tenants and how to respond should you need to delead your building. Depending on the size of the building and the financial position of the owner(s), some may decide that it is a valuable preventative measure to have the whole building deleaded to make the residence safer and avoid the need to take emergency deleading action if the Lead Laws’ requirements are triggered. If you do not decide to take preventative action, it is still valuable to be aware of the potential financial liabilities associated with deleading so that you are prepared if you must someday delead your property.
About the Author
Attorney Howard S. Goldman is the founding partner of the law firm of Goldman & Pease LLC, 160 Gould Street, Needham, Massachusetts 02494 (781) 292-1080, hgoldman@goldmanpease.com. Goldman & Pease LLC provides experienced, professional legal counsel in corporate and business law, real estate and civil litigation. The firm provides legal planning and counseling to help clients avoid problems by addressing changing circumstances and by anticipating future opportunities.
Mr. Goldman concentrates his practice in the areas of real estate, finance, and civil litigation, where he represents property managers, lending institutions, developers, and contractors for more than thirty years. He is an active member of the Massachusetts, Norfolk, and Rhode Island Bar Associations in his field and is also an active member of CAI and IREM, where he frequently lectures and writes columns affecting the real estate and finance industries. Mr. Goldman serves as a member of the Zoning Board of Appeals for the Town of Needham and as a court appointed mediator at the Boston Municipal Court and as a pro bono advocate at Federal District Court mediations.
This Client Update is designed to provide accurate and authoritative information in connection with the subject matter covered, but it should not be construed as legal advice or legal opinion on any facts or circumstances. You are urged to consult an attorney concerning your own situation and any specific legal questions you may have.