We quickly rolled out the new Department of Public Health Lead Paint forms last week. They looked great – however, a quick read highlighted several issues, and a deeper look by attorneys showed areas of concern.  As such, the Massachusetts Department of Public Health (DPH) has agreed to a period where agents may use either the old lead paint forms or the revised versions. You might want to hold on on using this new form.  An updated new form is expected and then the mandatory transition to the new way will be required.  For background, the new form issues identified are:

• General Typos
• References to tenant when it should be buyer,
• Intermixing “Owner/Lessor” and “Seller” to indicate the same parties
• Concerns about a seller having to determine the difference between a property having “lead paint” and, additionally having “lead paint hazards”.
• Where the buyer’s agent is asked to signoff that they have “informed the seller of the seller’s obligations …”. No!  The buyer’s agent should only be sharing information with their own buyer clients. No agent should contact a client of anther agent, without the agent’s express consent. Article 16 of the REALTOR® Code of Ethics strictly prohibits interference with the exclusive representation or brokerage agreements that other REALTORS® have with their clients.

Both the “old” forms and new version are now both in our forms platforms, we made quick work reinstating our old versions.  The MAR library also has both versions, and you can connect to the MAR Legal Hotline by calling 1-800-370-LEGAL (5342) or by sending an e-mail to legal@marealtor.com if you’d like a specific, additional concern to address. They are working with the DPH on the revisions.

Notable in the Process:

• The form indicates that not only that the seller has no knowledge of lead paint, but also that they have searched and found no documents in the Lead Safe Homes database, of which there are two. And, that you have told them about this database.
• We have had much debate about the upload requirement in the MLS and whether is is acceptable to load just the signature page or the whole packet. Since this form is very clear that the obligation to provide the form in its entirety falls on the “Sellers and real estate agents”, listing agents should always upload the entire form to ensure they are in full compliance on behalf of their seller clients and themselves.
• From the questions that have come into our office, we know that not every agent has read the old form to understand their current obligations on verbal disclosure, or even the sections that they initial. If you don’t have a very well established verbal disclosure you make about lead paint to both your buyer and seller clients, it’s a great idea to read though and come up with a few simple scripts! Perhaps a great office meeting topic!