For 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).
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.