Welcome to the third final part of my conversation with James A. Kozachek, a construction law and litigation partner/owner at Bisgaier Hoff, LLC, about what buyers (and sellers) should know when it comes to lead paint in homes. If you missed our first two parts, click here to get up to speed:
Trish: James, I talked to one contractor about all this [lead paint in homes] already – just trying to do a little research on my own. He told me not to worry. He said a kid would have to chew through a lead paint window to be adversely affected. Based on what experts really know about the health affects of lead paint, how accurate is his statement?
James: This question touches on a lot of disciplines, including medical doctors trained and experienced with lead poisoning. If your contractor’s response was supposed to take all lead conditions into account, then it clearly is inadequate, because it is not just lead paint that is the issue.
Sanding and scrapping lead-based painted surfaces can release lead into the air that could present a problem. Contaminated soil from an exterior renovation project could present a problem. Lead pipes could present a problem. If a contractor is performing a significant renovation project on an older home, then worrying about only paint would seem insufficient.
That said, older homes with lead based paint do not need to be completely shunned. I live in a 17th/18th century home myself. The trick is to ensure that any remaining lead-based paint in the home is locked behind barriers so that it cannot be released into the living environment, whether in the form of dust, debris, chips, vapor or another contaminated medium like water or soil.
Obviously the best course would be to eliminate any lead all together, but the risk in that process may be significantly higher than locking it away with the proper paints and barriers, like a very good heavy-duty elastomeric paint.
Trish: So you can “seal” lead paint behind another non-lead based paint?
James: That is certainly an option in many situations. This is a tried and true method for resolving many different environmental conditions. The goal is to ensure that the occupants do not ingest or breath-in any lead contaminated material. Renovation projects can often create a lot of dust and debris. If this dust and debris come, at least in part, from lead-based paint, you are facing a contamination issue. If you want to remove all the lead paint in a home, you can certainly do so, but to scrape it or sand it all off creates an incredible amount of contaminated dust and debris that could be a serious danger. Removing loose material and then covering the rest with an appropriate paint can often be the safer and more certain method of resolving the problem.
Trish: What sort of credentials do I need to look for from a contractor before letting him do any work in a home that may contain lead paint?
James: The credentials vary depending on the work the contractor is performing. Renovation contractors working on pre-1978 homes should be certified by the EPA and must be using certified renovators who are trained by EPA-approved training providers to follow lead-safe work practices.
Individuals can become certified renovators by taking an eight-hour training course from an EPA-approved training provider. They must, at a minimum, contain their work areas, minimize dust and clean up thoroughly. As the EPA recommends, a homeowner should expect their contractor to:
- Provide a copy of his or her EPA or state lead training certificate;
- Tell you what lead-safe methods he or she will use to perform the job;
- Be able to inform you of the lead laws that apply to your project and their certification and lead-safe work practices;
- Ask you to share the results of any previously conducted lead tests;
- Be ready, willing and able to provide you with references from at least three recent jobs involving homes built before 1978;
- Have records to demonstrate that he or she and all their workers have been trained in lead-safe work practices and that they follow lead-safe work practices on the job.
Similarly, lead abatement contractors must have an EPA or State Certification. The lead abatement contractor must be able to perform the following tasks:
- The removal of lead-based paint and lead-contaminated dust, the permanent enclosure or encapsulation of lead-based paint, the replacement of lead-painted surfaces or fixtures, and the removal or covering of lead contaminated soil; and
- All preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures.
- Lead abatement does not include renovation, remodeling, landscaping or other activities, when such activities are not designed to permanently eliminate lead-based paint hazards, but, instead, are designed to repair, restore, or remodel a given structure or dwelling, even though these activities may incidentally result in a reduction or elimination of lead-based paint hazards. Furthermore, abatement does not include interim controls, operations and maintenance activities, or other measures and activities designed to temporarily, but not permanently, reduce lead-based paint hazards.
It is also important for the homeowner to retain fully insured contractors.
Trish: What if we buy the house and then decide we want to sell the home in a few years. What would our obligations as sellers be with regard to the lead paint or any work we remediation work we have had done? And what would our liabilities be?
James: If you have had lead abatement work performed you will want to ensure that you retain the post abatement clearance letter from the contractor. A Buyer should request and a Seller would want to provide this clearance letter. As long as all is disclosed and the Seller has fully informed the Buyer of the work they had done, there should be no liability associated with the lead abatement and renovation work. Liability generally attaches to a Seller where no disclosures are made and where a Buyer claims that the Seller defrauded them by hiding the condition.
Trish: Okay, now I’m wondering if the mere mention of lead or lead abatement is going to keep me from ever finding a buyer for this house should we decide to sell one day….
James: I think this question touches on the larger issue of whether older homes or newer homes are preferred.
An older home generally comes with the following advantages: (a) often better “old world” construction; (b) often larger yards; (c) often considered to have more “character” or “charm”; (d) often far more mature trees and vegetation surrounding the home; (e) often a more established neighborhood; and (f) they have already completed any settling that a newer home has yet to do. At the same time, older homes generally require more maintenance and can be far more expensive to maintain than a new home. They also might require significant HVAC equipment and electrical updates. And – as we have been discussing – older homes are more likely to have environmental issues such as asbestos and lead.
New Homes, on the other hand, generally are far more energy efficient, do not have the same risk of problem materials, like lead and asbestos, are cheaper to maintain, have more modern conveniences and generally have a statistically preferable “new” look to them. Newer homes also generally come with a new home warranty.
There are various surveys available on the internet that suggest older homes are preferable and other surveys that suggest newer homes are preferable. For those who know and love older homes, lead paint is a known hazard and there is no suggestion in the available statistical data that it plays a significant role in their decision-making. Indeed, one could easily argue that having completed a lead remediation and being able to hand the Buyer a clearance letter should make the home even more saleable because unlike most older homes (which many people prefer) this home would have already had the lead issue addressed. That should be a big plus for most buyers.
James A. Kozachek, Esq.’s comments here are made for informational and educational purposes only and do not constitute legal advice. These comments are not intended to provide any form of legal advice or to form the basis of an attorney-client relationship. Statements made herein are solely those of the author and do not reflect the views of Bisgaier Hoff, LLC. Nothing herein should be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This information is not published for advertising or solicitation purposes, but only to heighten awareness of certain issues that can arise in connection with improvements to real property.