MAR Legal Hotline

Notes From the Legal Hotline: Lead Paint

The MAR Legal Hotline received this interesting question about lead paint, and have shared the answer with us… Would you know what to do?  Question: “I’m working on taking a listing that was built before 1978. The seller did a lead test from a testing kit that she bought and it was positive for lead paint. A version of EPA’s pamphlet “Protect Your Family from Lead in Your Home” states that studies suggest that home test kits for lead are not always accurate, and that consumers should not rely on home test kits to assure safety. Therefore, does the use of home test kits for lead constitute knowledge of lead-based paint for disclosure purposes? Must this be disclosed to potential buyers?”

Answer:  Yes, this must be disclosed to prospective buyers.  According to a HUD Guidance Memo, “if an owner has information obtained from the use of a home test kit for lead, that information must be disclosed; however, the owner should also disclose information about the reliability of the test kit results.”

Therefore, if the testing kit showed the presence of lead paint in the home, this must be disclosed to prospective buyers. It is recommended that the results of the test-kit be affixed to the lead paint disclosure, which will also indicate that the homeowner conducted the test, rather than a trained professional. As always, the prospective buyer shall have a 10-day opportunity to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards. The foregoing also applies to rental properties built before 1978.