Do you have to give the lead paint form for anything built before 1976 including condos, multifamily homes, mobile homes and properties that aren’t a single family residential? Click to find out
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Reading the Federal and State laws together, it is my understanding that the Lead Law applies to all homes—including single family, multifamily, units within a multifamily, mobile homes, etc, built before 1978 in which a child under six lives. In Massachusetts, the only exemption to this rule that I am aware of are homes or apartments having fewer than 250 square feet of living space, or which is in a rooming house, as long as no child under age six is living there. As for rentals, the only exemption is for homes rented for 31 days or less for vacation or recreational purposes are also exempt, as long as there is no chipping or peeling lead paint in the home and the renter has received the Short-Term Vacation Rental Notification. The laws do not apply to commercial properties.
The Massachusetts lead paint law requires that any property owner of a structure built before 1978, where a child under the age of 6 resides, de-lead the property up to a height of 5 feet from the floor. The owner’s legal obligation exists regardless of the owner’s knowledge of the presence of lead paint. Effective July 1, 1988 and December 1, 1994, all prospective purchasers and tenants, respectively, of residential property built prior to 1978 must be provided with a notification form regarding the presence of lead-based paint in the housing.
For more information, please contact the MAR Legal Hotline
Ashley Stolba, Associate Counsel
Massachusetts Association of Realtors®
Members may access the Legal Hotline by calling 800-370-LEGAL (5342), sending an e-mail, or faxing questions to the Legal Department at 781-890-4919.
FEDERAL LAW:
40 CFR Part 745 Lead; Renovation, Repair, and Painting Program; Lead Hazard Information Pamphlet; Notice of Availability; Final Rule
‘‘Target housing’’ is defined in section 401 of TSCA as any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom dwelling.
http://www.epa.gov/fedrgstr/EPA-TOX/2008/April/Day-22/t8141.pdf
Please see the attached Q&A, question 33, on Mobile homes:
33. Are mobile homes included in the definition of “target housing” under the disclosure rule?
Yes. Mobile homes (manufactured housing) built before 1978 are included in the definition of “target housing”. Although these units may have been constructed largely of pre-finished materials, some surfaces, both interior and exterior, may have been painted with lead-based paint. Therefore, EPA and HUD cannot exempt mobile homes as a class. Houseboats, recreational vehicles, etc. are not considered “target housing.”
Title 40: Protection of Environment
PART 745—LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN RESIDENTIAL STRUCTURES
§ 745.103 Definitions.
Contract for the purchase and sale of residential real property means any contract or agreement in which one party agrees to purchase an interest in real property on which there is situated one or more residential dwellings used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.
Residential dwelling means:
(1) A single-family dwelling, including attached structures such as porches and stoops; or
(2) A single-family dwelling unit in a structure that contains more than one separate residential dwelling unit, and in which each such unit is used or occupied, or intended to be used or occupied, in whole or in part, as the residence of one or more persons.
§ 745.101 Scope and applicability.
This subpart applies to all transactions to sell or lease target housing, including subleases, with the exception of the following:
(a) Sales of target housing at foreclosure.
(b) Leases of target housing that have been found to be lead-based paint free by an inspector certified under the Federal certification program or under a federally accredited State or tribal certification program. Until a Federal certification program or federally accredited State certification program is in place within the State, inspectors shall be considered qualified to conduct an inspection for this purpose if they have received certification under any existing State or tribal inspector certification program. The lessor has the option of using the results of additional test(s) by a certified inspector to confirm or refute a prior finding.
(c) Short-term leases of 100 days or less, where no lease renewal or extension can occur.
(d) Renewals of existing leases in target housing in which the lessor has previously disclosed all information required under § 745.107 and where no new information described in § 745.107 has come into the possession of the lessor. For the purposes of this paragraph, renewal shall include both renegotiation of existing lease terms and/or ratification of a new lease.
§ 745.107 Disclosure requirements for sellers and lessors.
(a) The following activities shall be completed before the purchaser or lessee is obligated under any contract to purchase or lease target housing that is not otherwise an exempt transaction pursuant to § 745.101. Nothing in this section implies a positive obligation on the seller or lessor to conduct any evaluation or reduction activities.
(1) The seller or lessor shall provide the purchaser or lessee with an EPA-approved lead hazard information pamphlet. Such pamphlets include the EPA document entitled Protect Your Family From Lead in Your Home (EPA #747-K-94-001) or an equivalent pamphlet that has been approved for use in that State by EPA.
(2) The seller or lessor shall disclose to the purchaser or lessee the presence of any known lead-based paint and/or lead-based paint hazards in the target housing being sold or leased. The seller or lessor shall also disclose any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.
(3) The seller or lessor shall disclose to each agent the presence of any known lead-based paint and/or lead-based paint hazards in the target housing being sold or leased and the existence of any available records or reports pertaining to lead-based paint and/or lead-based paint hazards. The seller or lessor shall also disclose any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.
(4) The seller or lessor shall provide the purchaser or lessee with any records or reports available to the seller or lessor pertaining to lead-based paint and/or lead-based paint hazards in the target housing being sold or leased. This requirement includes records or reports regarding common areas. This requirement also includes records or reports regarding other residential dwellings in multifamily target housing, provided that such information is part of an evaluation or reduction of lead-based paint and/or lead-based paint hazards in the target housing as a whole.
(b) If any of the disclosure activities identified in paragraph (a) of this section occurs after the purchaser or lessee has provided an offer to purchase or lease the housing, the seller or lessor shall complete the required disclosure activities prior to accepting the purchaser’s or lessee’s offer and allow the purchaser or lessee an opportunity to review the information and possibly amend the offer.
STATE LAW:
“Premises”, any residential premises, dwelling unit or residential property constructed prior to nineteen hundred and seventy-eight.
Section 197. (a) Whenever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials in accordance with the requirements of subsection (b) or (c). Except as provided in section one hundred and ninety-seven D, whenever any such premises containing said dangerous levels of lead undergoes a change of ownership and as a result a child under six years of age will become or will continue to be a resident therein, the new owner shall have ninety days to contain or abate said paint, plaster or other accessible structural material as required by this section, so as to make the premises in compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive.
Section 197A. Prospective purchasers of premises shall be notified about the hazards of lead in paint, plaster or other accessible structural material in premises and the requirements for their abatement or containment as follows:— ….
STATE REGULATIONS:
105 CMR 460.000: LEAD POISONING PREVENTION AND CONTROL
460.020: Meaning of Terms
Dwelling Unit means the room or group of rooms within a residential premises used or intended for use by one family or household for living, sleeping, cooking and eating. “Dwelling unit” includes a condominium.
Residential Premises or Residential Property means every building or shelter constructed prior to 1978, used or intended for human habitation, including exterior surfaces and all common areas thereof, and all other property, including other structures located within the same lot line whose existence causes or is likely to affect noncompliance with the provisions of 105 CMR 460.000. Residential premises are comprised of one or more dwelling units.
Rooming House means every dwelling or part thereof that contains one or more rooming units in which space is let or sublet for compensation by the owner or operator to four or more persons not within the second degree of kindred to the person compensated. Rooming unit shall mean the room or group of rooms let to an individual or household for use as living and sleeping quarters. Boarding houses, hotels, inns, lodging houses, dormitories and other similar dwelling places shall be included under this definition.
460.100: Duty of Owner(s) of Residential Premises
(A) Except as provided in 105 CMR 460.100(B) through (D), the owner(s) of a dwelling unit or residential premises containing dangerous levels of lead in any paint, plaster or other accessible structural material are required to obtain a Letter of Full Compliance or a Letter of Interim Control, in the following circumstances:
(1) A child under six years of age resides therein, whether or not the residential premises have been inspected pursuant to M.G.L. c. 111, § 194 or otherwise; or
(2) The owner(s) receive an order to delead pursuant to M.G.L. c. 111, § 194 because the premises is occupied by a child under six years of age at the time of the lead determination enforcement procedure or code enforcement lead inspection upon which the order is based, or a child under six years of age who is
lead poisoned as defined at 105 CMR 460.020 occupied the premises within the past 12 months.
…
(E) The owner of a dwelling unit having fewer than 250 square feet of floor space, calculated on the basis of total habitable room area, or which is used as a rooming house, is exempt from the requirements of M.G.L. c. 111, §§ 189A through 199B and 105 CMR 460.000, provided that no child under six years of age occupies said dwelling unit.
Massachusetts Case law:
Bencosme v. Kokoras, 400 Mass. 40 (1987) Owners of residential property are strictly liable for injuries sustained under the lead paint act.