How Lead Paint In Homes Impacts Buyers, Sellers, and Homeowners; Part 1 of 3

good old lead paintFor the sake of this blog, I’m pretending to be a 28-year-old woman, expecting my first child, and shopping for a home where I plan to raise a family with my husband.

It’s really not such a stretch.  I have, in fact, been all of these things at one time or another, which perhaps makes me a bit more sensitive to a very controversial topic:  Lead paint in homes.

We all know lead is toxic – especially to small children — and that it was banned in household paint a long time ago (1978 to be exact).  But what most people (at least most homeowners don’t know) is that Federal law now requires home renovation firms to be certified and trained in the use of lead-safe work practices before engaging in a project that entails the disturbance of lead painted surfaces – a high likelihood in renovations to just about any home built before 1978.

The intention of this law is to protect occupants and the workers from the potentially harmful ingestion of lead paint particles or dust that are disturbed during the renovation process.  As you might guess, some contractors are less than thrilled with this new requirement.  The certification and training costs them money and the prescribed procedures create more labor and expense.  It’s a controversial topic among contractors to say the least.

However, I’m more interested in how this new law impacts homeowners like me, especially the “pregnant” me I am pretending to be in the following conversation with James A. Kozachek, a construction law and litigation partner/owner at Bisgaier Hoff, LLC, a law firm in the greater NYC area.

I asked James to join me in a little game of She Asked/He Said about lead paint and how this new rule impacts homeowners and home sellers.

Remember, in this scenario, I’m pregnant, so I apologize in advance if my hormones get the best of me.  I’m in full-on-mommy-mode, which makes me about as irritable and protective as a grizzly bear with cubs. Here goes….

Trish: James, my husband and I have found the cutest little 3-bedroom Craftsman bungalow, circa 1972.  There’s room for us, our soon-to-be-born son (I’m expecting in June!), and perhaps another little one in a couple of years or so.  It’s perfect in every way – except my mother-in-law insists we shouldn’t buy an older home because it may have lead paint in it.  I usually ignore her, but in this case, I am concerned.  Should I be?

James: Yes.  One should always be concerned about the environment in which they plan to live.  Any number of negative environmental conditions could exist in a home and wisdom dictates performing an adequate due diligence prior to taking title.

Trish: Due diligence, huh? Geez.  You are a lawyer.  Translation, “Yes, this stuff could present a danger to my family, but it is up to me to investigate the dangers and determine what I want to do about it.”  Sound about right?

James: Yes.  It is up to each of us to investigate and learn about a product before we buy it.  Many of us read labels on groceries in the store before we buy them.  While a home is a very different product than a box of pasta, it is nevertheless extremely important for us to be aware of the ingredients in both.  At the same time, it is the obligation of the sellers of those products to make required disclosures (nutrition labels on groceries and disclosure statements with respect to homes).  As a buyer we can choose to read those disclosures or to ignore them.

Trish: How do I know for sure if this house even has lead paint?  What do I ask my realtor or seller?  And what are they obligated to tell me before I make an offer?

James: You should ask both the realtor and the seller.  While the disclosure laws vary from state to state, they are generally required to tell you what they know.  Often an adequate notice could be “the house was built before 1978 and as a result we are placing you on notice that it could contain lead paint.”  In many jurisdictions this would be enough to satisfy the disclosure obligation and it would then be the Buyer’s burden to proceed at their own risk or perform a due diligence by testing samples to determine levels of lead.  If the test results are positive for lead, agreements of sale generally enable the Buyer to declare the agreement null and void.

Trish: Is the current owner required to have the home tested for lead before putting it on the market?  And if it has lead, is he or she required to remove it or remediate it before anyone moves in?

James: No.  The seller has no such obligation for residences.  If, however, a prior purchaser performs such a test and cancels the agreement based on those results, then the Seller generally has an obligation to disclose those test results to the next potential purchaser.  Buyers should make sure they ask probing questions of the Seller, such as whether they have previously tried to sell and if a prior sale fell through, and the reason. The Buyers should request copies of all reports generated with respect to the condition of the premises, as well as any performed on the site for any potentially hazardous material (e.g. lead, mold, chemicals, asbestos).

To be continued

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.

17 Responses »

  1. I never use lead paint.

  2. I agree with the law and am certified. Here is the disappointing thing. I always test and then emply the techniques I was trained to utilize. However, no one has ever checked behind to make sure it was done correctly and completely. This was supposed to be policed by the inspections departments across the country. They were to evaluate each application and if the house was built before 1978 they were to check to see if the contractor was certified by the EPA or the stae health agency. I work in 4 counties and have never been asked. I wish more people understood the potential impacts of this paint when it become particulate and spreads through the house.

    • Britt,

      I know it is frustrating for contractors. I feel their pain. On the other hand, many certified contractors complain that they will be unfairly targeted with inspections while the work of unlicensed contractors goes unrecorded and uninspected. It is a difficult situation from all ends; that is quite clear to me.

      The best I can offer is for certified contractors to continue to refer homeowners to these blogs so they can get a full understanding of their own obligations and liabilities.

      Thanks for reading and commenting!

      Trish

  3. In Ohio it is standard practice going on 35 years that a lead paint disclosure doc is in the pile of papers that home buyers and sellers must sign. I thought it was federal requirement put in place many years ago. Most of my customers are fed up with this government intrusion in their homes. They realize to do a repair job in accordance with the strict regs of the heavy-handed law it costs much more, and they don’t want to pay. Of course, on the home improvement television shows everyone goes along and smiles at the camera while thousands of their dollars are used to build tarp barriers, super sucking micro vacs, and their home basically what looks like a superfund contaminated site. Government run amuck and total nonsense.

    • It is true, Bud, that having regulations which specify how a repair and renovation job is to be performed will tend to increase the price. Maybe none of your clients have toddlers zooming around their houses. Maybe you don’t either. Maybe none of the sales of these houses will be to families with toddlers or expectant parents-to-be.

      I just wonder if you have the guts to look a mother in the eye whose 2-year-old is diagnosed with irreversible brain damage due to ingesting lead paint flakes, and tell her that lead paint abatement regulations just cost too much to comply with, so you didn’t. Ask *her* if she feels it is too costly or if this is government run amuck.

      Or maybe you believe that brain damage due to lead paint is just another example of governmental junk science.

      Do you, or do you not, comply with repair and renovation laws and regulations?

    • Bud, I never thought about it but lots of the TV shows involve older homes which must involve lead paint. I don’t see any of them following RRP rules, i.e. noone is wearing bunny suits, no plastic sheeting to prevent dust flying around, etc, etc

  4. I am an EPA Lead Certifed Renovator (as well as my firm). I understand that the Lead Laws were put into effect to protect consumers from unscrupulous landlords (and renovation contractors) and I endorse this. However there have been some unforeseen consequence of the EPA’s rules such as homeowners under taking renovation work, knowing there is the presences of lead, because they do not want to pay the cost of safe removal and disposal of lead contaminated construction debris. They expose themselves (and members of the household) to lead dust as well as unsuspecting trades people such as plumbers, electricians, trash collectors, etc. that they choose to hire to perform work in their homes that the are not capable of doing themselves. This is a serious issue. Public education is the key to understanding (and abiding by) the EPA’s Rules.

  5. Great article. can it be copied and used if credit is given to author? Id love to share it.

    • Rob, you may use the article as long as you credit Greenspiration Home and give a direct link back to the original article.

      Thanks,

      Trish

  6. It’s always a health hazard being exposed to lead paint, but down the road if you ever need to it’s usually possible for a lawyer to find a way to sue in regards to lead paint exposure. It doesn’t make it ok, but it makes dealing with the consequences easier if you know you have some big money on the way.

  7. Every home I ever lived in has always been built before 1978, I was born well before that so I couldn’t avoid it and probably help dad paint the house, inside and out, with most probably lead paint. I also remember my dad saying the house I grew up in had asbestos siding as it was built in the ’10′s (1910′s). The house still stands, in Detroit, but it is in really rough shape and still lived in.

    Sorry for digressing, my current house also was built before 1978 and we have done little to remodel anything, did do painting, maybe fixed a few holes / cracks in walls / ceiling. . . but don’t know how much different our repairing / painting would be done compared to the typical licensed contractors in our area would do it. We hire someone when we can’t do it for some reason and we can afford it. What about “Student Painters”, the college students that do this, they licensed for, besides business, lead. . .?

    Our church goes into different areas in and around Detroit (MI) to have volunteers to help rebuild homes / churches which I know instinctively have been built before 1978, are all these volunteers at risk? Should they be told to stop helping the disadvantaged? Wouldn’t be able to do much help if we had to call in and pay special licensed contractors. What would be your advice here? Any contractor want to come down to the big inner-city “D” and work for free? Are there any “free” classes to teach volunteers how to protect themselves. . . when working on pre-’78 homes? Don’t get me wrong, I am not being critical here but you brought up very valid points and I am just trying to find a workable practical solution for us “not yet rich and may never be” and “God has it in our heart to help” folks to do the jobs right.

    On one more point that I feel needs to also be considered and I feel may not even be realized (certianly not mentioned yet). Even in homes built long after 1978, there could be lead in them as well. HOW? you ask? Well I read improvement and “green” magazines and watch the shows sometimes on TV that talk about recycling old building parts and using to creatively / artistically decorate a “new” home. Wouldn’t it stand then that if these “old” and/or “antique” recycled decoration or functional “character” additions, if painted pre-78 and never stripped to bare wood, would contain “lead”? Would a green (or not) post-’78 home owner have to declare on selling their home that the house contains lead in the antique recycled character of the home? More dilemmas, now what?

    Hmmm, if someone (father and son or kids or family) is/are restoring. . . an “old” pre-’78 car, is there lead in that paint too. Repainting cars can be a nasty dusty dirty job there too!

    Questions, anyone with helpful answers to share?

    Have a blessed day Trish, all. =];-)

    • Great Points! I thought about some of the same things while watching a recent episode of “pickers” who get farm-fresh goodies to be recycled [a green endeavor] by builders, artists and designers. As usual every ordinance, rule or law has a backwash effect to it. As a General Contractor we have to make sense of it as it applies to us and educate the client, which as you all know is never an easy task.

  8. Molly McCabe’s response is important. I know a young couple who bought a fixer upper in Durham and undertook renovations themselves. During renovations, they had 2 children born. She told me about the youngest being in and out of Duke Med trying to diagnose unexplained health problems. There’s far more than just lead paint to be concerned about.
    Chris Julian

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