Notes from our State Legal Team
There has been a debate amongst Berkshire members about the obligations of proper handling of the Lead Paint Property Transfer Form. Everyone agrees that the seller’s agent must give the LPPT form before the signing of a purchase and sale agreement. Buyer’s agents are accepting the form, but many are not then providing the Listing Agent with a copy of the signed document. Their argument is that the seller’s agent has an obligation to present the form – period – but do not have a legal mandate to get a signed copy returned to them.
Answer: In my opinion, the listing agent is absolutely entitled to an executed copy of the certification form. They are the source of the information and are required to provide it and ensure the information is received. Due to the exclusive representation arrangement with a buyer agent, they must rely on that agent for any additional explanation but should be entitled to an executed copy. If one is not provided or refused to be provided I would recommend the listing broker attach an addendum to the P&S stating the information was provided timely and correctly to avoid any liability. This being said; I also think, from a fiduciary requirement, the buyer agent should retain a copy of the executed document as well.
In our MLS agents can open, view and print additional documents attached to the listing data. These attachments can be (1) Signature page of the Lead Paint Form (2) Seller’s Description of Property (3) Notification of Right to Farm (4) Plot plans or assessor cards, etchttp://www.berkshirerealtors.org If a seller’s agent attaches the Lead Paint form to their listing (and we have electronic proof of that) do they still have an obligation to physically present the material to the buyer, or does it become the responsibility of the buyer’s agent, since the listing agent technically “provided” it to the buyer’s rep?
Answer: Uploading the documents to the MLS probably doesn’t satisfy the regulatory requirement. Each prospective buyer should be provided a copy of the form and request a signed copy. The consumer does not have access to the MLS and therefore the listing broker might have difficulty tracking train of possession of the document. It is possible it would be okay, but I wouldn’t chance it.
Massachusetts Department Of Public Health CLAPP
(Childhood Lead Poisoning Prevention Program)
Under Massachusetts and federal law, owners and real estate agents must comply with Property Transfer Lead Paint Notification requirements when a prospective buyer or tenant with an option to buy is about to purchase a home built before 1978.
The aim of this requirement is to inform prospective buyers about:
- The danger lead paint poses to children and adults
- Lead poisoning prevention steps
- The requirements of the Lead Law
To comply with both state and federal requirements, sellers and real estate agents must provide the Property Transfer Lead Paint Notification to a prospective buyer before signing a purchase and sale agreement, a lease with an option to purchase, or a memorandum of agreement used in foreclosure sales. In addition, they must:
- Provide a copy of any lead inspection report, risk assessment report, Letter of Compliance, or Letter of Interim Control.
- Tell the buyer anything they know about lead in the home.
- Tell the buyer that, under the Lead Law, a new owner of a home built before 1978 in which a child under six will live or continue to live must have the home either deleaded or brought into Interim Control within 90 days of taking the title.
- Sign, and have the buyer sign, the certification page of the Property Transfer Lead Paint Notification, which contains a checklist to ensure that the buyer has been fully notified of the requirements of the Lead Law.
Sellers or real estate agents who fail to comply with Property Transfer Lead Paint Notification requirements are subject to civil penalty under Massachusetts law, and both civil and criminal penalties under federal law.
What does the lead law require?
The Lead Law requires the removal or covering of lead paint hazards in homes built before 1978 where any children under six live. Lead paint hazards include loose lead paint and lead paint on windows and other surfaces accessible to children. Owners are responsible with complying with the law. This includes owners of rental property as well as owners living in their own single family home. Financial help is available through tax credits, grants and loans.
How does an owner comply with the lead law?
There are two ways:
1. Have all lead hazards removed or covered. The owner must first hire a licensed lead inspector who will test the home for lead and record all lead hazards. After the work is approved, the owner will receive a Letter of Full Compliance. or…
2. Have only urgent lead hazards corrected, while controlling remaining hazards. This temporary method is called interim control. The owner must first hire a licensed risk assessor who will explain what work needs to be done for interim control.
After the work is approved, the owner will receive a Letter of Interim Control. Owners then have up to two years before they must have the remaining lead hazards removed or covered and receive a Letter of Full Compliance.
Who can remove or cover lead hazards?
Some work must be done by a licensed deleader. However, an owner or agent (someone working for an owner without a deleader’s license) can perform some specific tasks. An owner or agent cannot begin any of those tasks until:\
1. The home is inspected by a licensed lead inspector
2. The owner or agent is properly trained to perform the deleading work
For more information about what work may be done by an owner or agent and how to become trained, call the Childhood Lead Poisoning Prevention Program at (800) 532-9571
Moderate-Risk deleading: A New Option for Owners and Their Agents
The Massachusetts Department of Public Health’s Childhood Lead Poisoning Prevention Program’s (CLPPP’s) regulations allowing people who are not deleaders to do moderate-risk deleading work take effect February 4, 2000. The purpose of these regulations is to lower the costs of deleading, with the ultimate goal of having more children’s homes being made lead-safe.
What type of work may now be done by those trained to do moderate-risk deleading?
Removing: windows, woodwork and any residential surface, with the exception of ceilings and walls.
Making intact: (repairing for repainting, not scraping down to bare wood) small amounts of deteriorated lead paint. A small amount is no more than 2 square feet per interior room, hallway or common area, and no more than 10 square feet total on exterior surfaces.
Who will be able to do moderate-risk work?
Property owners and their agents. Before beginning any deleading work, they must complete the course required by CLPPP and pass a CLPPP exam. Owners and agents who pass will receive a certificate from CLPPP as proof that they are authorized to do this work.
Lead-safe renovators. Contractors must complete the training required by the Department of Labor and Workforce Development, pass an exam and become licensed.
What will the owner/agent moderate risk training entail?
- The course will be one-day long.
- It will cover safety procedures, cleanup and what is required to meet the Lead Law and Regulations requirements.
- Carpentry skills will not be covered in the course. Owners and agents considering doing moderate-risk deleading work should have such skills.
- The course will be made as widely available as possible across the state.
- It will be put on by private groups and organizations approved by CLPPP.
- The cost will vary depending on the training provider. CLPPP will have no control over the cost of courses.
People will be able to perform moderate-risk deleading as soon as the regulations take effect AND the one-day course becomes available. CLPPP expects the course for owners and agents to be available in March 2000.
- Search for a Massachusetts Licensed Lead Inspector and Private Risk Assessors (Interim Control)
- Massachusetts Licensed Lead Inspector and Private Risk Assessors (Interim Control) (PDF) |RTF
PDF Files from the Childhood Lead Poisoning Prevention Program
- Property Transfer Lead Paint Notification, Property Transfer Certification Form (PDF) | Word
- Tenant Lead Law Notification Form (PDF) | Word
- Tenant Lead Law Notification: En Español (PDF) | Word
- Short Term Vacation or Recreational Rental Exemption Form (PDF) | Word
- 105 CMR 460.000 Lead Poisoning Prevention and Control (PDF) | RTF 1.28MB
The following documents are provided by the Division of Occupational Safety.