ma real estate ceu - lead paint - falter _10-14-13

LEAD PAINT -RESIDENTIAL SALES AND RENTALSRE20R13

Produced by Paul Savard

GENERAL HISTORY OF USE OF LEAD

� 1690 TO 1978: Lead was used in paint, pipes, plaster, floor tiles, shingles, etc.

� Also used in marine industry for the bottom of ships and boats.

� The older the house, the higher the probability of lead paint.

� U.S. Government banned the use of lead in house paint in 1978.

WHAT IS LEAD POISONING?

� It’s a disease.� Most dangerous for children under the

age of 6.� Primary way children get poisoned is by

swallowing lead paint dust.� Putting hands in their mouth.� Soil, Water, Eating from gardens in lead

soil.

EFFECTS AND TREATMENTS

� No special symptoms.� Blood testing required. � MA Law requires testing of all children

from 9 months to 4 years annually.� Family Doctor, Health Care Provider,

Local Board of Health.

EFFECTS AND TREATMENTS

� Treatment starts by locating and removing lead hazards.

� Medical treatment depends on level of lead in child’s blood. Chelation Therapy.

� Special drugs to rid child’s blood of excess lead.

� Tests for learning disabilities!

U.S CODE SEC.4852 (a)

� To comply with Federal Lead Disclosure, that “BEFORE THE PURCHASER OR LESSEE IS OBLIGATED UNDER CONTRACT TO PURCHASE OR LEASE” THE LEAD NOTIFICATION MUST BE GIVEN.

COMBINATION LAW

� Both Federal and State compliance is required.� Full 10-Page Disclosure Packet must be

given by Real Estate Agent to Buyers and Tenants in Lease with Option of Buy, Signing a Purchase and Sale Agreement in order to comply with both Federal and Massachusetts Law.

COMBINATION LAW

� Sort Term Vacation Rentals Do Not require disclosure…Rentals of 31 days or less.

MA CLPP Program Database

� To check on a property to determine if a lead paint inspection has been performed:

� http://webapps.ehs.state.ma.us/leadsafehomes/

� Call 1-800-532-9571 for assistance if you cannot find property.

Disclosure Forms

� Childhood Lead Poisoning Prevention Program (CLPPP) Property Transfer Lead Paint Notification

� Tenant Lead Law Notification� Short Term Vacation or Rental Exemption

Notification� Fannie Mae Lead Disclosure

LEAD PAINT INSPECTION

� The right to inspect within 10 days or any extended amount of time agreed upon by the parties to an accepted offer.

� Duty to De-lead… If owner has child under 6, there is an affirmative duty to de-lead or make lead safe rather than simply disclose.

LEAD PAINT INSPECTION

� If Buyer has a child under 6, affirmative duty to de-lead or make lead safe within 90 days of taking title.

� If Tenant with option to buy with child under 6, Seller to de-lead or make lead safe within 90 days of bringing child under 6 into home.

LEAD PAINT INSPECTION

� INSPECTION IS NOT MANDATORY.

� BUYER MAY WAIVE INSPECTION AND ACCEPT THE RISK.

� Tenant with option may waive inspection; however, Seller/Landlord remains liable under the Law.

Interim Control

� Temporary measures to correct urgent lead hazards, especially chipping, peeling paint and lead dust.

� Repair of water leaks causing paint to flake of chip may be required, making window wells easy to clean, making windows work properly may also be required for Interim control.

A Letter of Interim Control

� A legal letter saying what needed to be done has been done to make the home temporarily safe as a residence.

� Once issued, original letter of Interim Control is good for one year.

� Re-inspection and re-certification at end of one year.

� If all conditions have still been met, reissue of letter for another year.

CERTIFICATE OF COMPLIANCE

� A Risk Assessor is a specially licensed inspector who assess those areas which need immediate attention in order to get a Letter of Interim Control.

CERTIFICATES OF COMPLIANCE

� IF Buyer or Tenant with Lease with Option to buy chooses to have lead paint inspection or risk assessment done.

� License Inspector will test surfaces.� Will issue a written report as the where

lead is located.� Record lead hazards that must be

corrected.

A Letter of Compliance

� States no lead present. � Or lead has been removed.� Signed and dated by licensed lead

inspector.

Sample Letter of Full Deleading Compliance

� See attached sample letter.� Inspection and Abatement History.� Lead in Dust.� Wipe Lead Analysis Summary.

DISCLOSURE OF KNOWN LEAD..

� Listing Agent must ask Owner for Disclosure of Lead Inspection Reports, Risk Assessment Reports, Interim/Compliance Letters.

� Page 11 of the Mandatory packet is a 3 part “PROPERTY TRANSFER NOTIFICATION CERTIFICATION” signed by the Seller at time of listing.

AFTER GETTING NOTICE:

� Buyer or Tenant with Option to Buy:� Has at least 10 days to obtain a risk

assessment.� Lead Paint testing and risk assessment is

NOT mandatory prior to sale.

RESIDENTIAL SALES

� Seller may not discriminate:� Because buyer has children under 6,� Because buyer has asked about lead, � Because buyer has included a lead inspection

contingency in the Offer to Purchase.

NEW OWNER OF HOMES BUILT BEFORE 1978

� In which a child under 6 will reside must have it de-leaded or brought under Interim Control within 90 days of taking title.

OWNERS OF RENTAL PROPERTY

� May delay tenancy up to 30 days to assure Letter of Compliance or Letter of Interim Control.

� Prior to signing of lease, Tenant is responsible for living expenses.

� After signing of lease Landlord must provide temporary housing.

RESIDENTIAL RENTALS

� Landlord may not:� Refuse to rent because of the presence of

lead,� Charge a tenant for the cost of de-leading,� Enterer into a contract limiting the

Landlord’s obligation to de-lead or liability under the statute.

OWNERS OF RENTAL PROPERTY

� Are strictly liable for damages for failure to comply with de-leading requirement if a child under 6 resides.

� Cannot discriminate against families with children under 6 by failing to rent or renew leases currently in effect.

RESIDENTIAL RENTALS

� A Landlord must:� De-lead or make lead-safe property where

a child under 6 resides,� A Landlord may be held strictly liable for

lead poisoning of a child regardless of actual knowledge of the presence of lead.

RENTALS

� Tenants have the right to ask for an inspection.

� New Owners of rental property must bring the property into compliance within 90 days of taking title.

RESIDENTIAL RENTALS

� If the apartment is subject to a Letter of Compliance, or a Letter of Interim Control by a Licensed Lead Paint Inspector,

� The Landlord may not be held liable, rather a Plaintiff (Tenant) must prove the Landlord acted negligently in order for the Landlord to be liable.

RESIDENTIAL RENTALS

� Landlord may be sued by Parents acting on behalf of child suffering from lead paint poisoning.

� Landlord may not file a Cross-Complaint or Countersuit against the parents for negligence.

� Landlord must defend the first suit brought by the parents, then, may sue parents in a separate action within one year of the judgment.

OWNERS OF RENTAL PROPERTY

� LETTER OF COMPLIANCE states no lead present in the home, or home has been de-leaded.

� LETTER OF INTERIM CONTROL states work performed to make home temporarily safe.

� Existing Tenants need relocation…Landlord must pay moving costs and temporary housing costs.

� Tenant is still responsible for payment of rent.

PENALTIES

� FOR SELLERS/LANDLORDS/REAL ESTATE AGENTS.

� MONETARY..MA UP TO $1,000; FEDERAL UP TO $10,000.

� ACTIONS BY GOVERNMENT ORDERS TO CEASE IN VIOLATIONS.

CIVIL LIABILITIES AND COSTS

� “Anyone who knowingly violates the provisions of this section shall be jointly and severally liable for the amount equal to 3 times the amount incurred by such individual under Federal law.”

� Court costs may be awarded to the Plaintiff.

CIVIL LIABILITIES AND COSTS

� Under MA State Law, Real Estate Agents, Property Managers, and certain Landlords and Sellers, where applicable, may be subject to double to treble damages and attorney fees under the Consumer Protection Law, Chapter 93A.

CIVIL LIABILITIES AND COSTS

� Federal Law, Toxic Control Act, failure or refusal to comply.

� Penalty for each violation applicable shall not be more than $10,000.

� (15 U.S.C.2601-2615)� Standard of Measure…Owners to de-lead

or make lead safe rather than simple notification.

MECHANICS OF COMPLIANCE

� For Brokers and Salespersons:� Form CLPPP 94-2 (Rev. 2/03) given to

Buyer and/or Tenant with Option to Buy. � Transfer Notification Certification filled out

properly (initial/check/circle/sign) and given to Buyer and Tenant with Option to Buy.

MECHANICS OF COMPLIANCE

� Tenant Notification required for residential tenancy.

� Short-term Vacation or Recreational Rental Exemption Notification.

Renovation, Repair & Painting Program (RRP)

� Federal Law requires that individuals receive certain information before renovating more than 2 square feet of painted surfaces in housing, child care facilities and schools build before 1978.

High risk

� Licensed inspector if removal or paint or repairing of peeling chipping paint.

� If owner or his agent do certain other activities , such as covering surfaces with encapsulants, capping baseboard or installing vinyl siding or vinyl windows, the law says they must have an inspection done first and take special training is lead is found.

Pre Renovation Rules

� Application required: $$� If more than 2 square feet of paint will be

disturbed.� If renovations are done by a person for

compensation.

Renovation, Repair & Painting Program (RRP)

� Individuals (plumbers, heating contractors, electricians, painters, carpenters, renovators and other tradesman) must take an 8 hour RRP course and pass a test. They will receive a Lead Safe Renovator certificate that must be displayed on location at job sites.

Renovation, Repair & Painting Program (RRP)

� Violation of the new RRP laws can trigger fines up to $37,500 and jail time!

Renovation, Repair & Painting Program (RRP)

� Massachusetts Laws have adopted its own RRP Lead Safe Renovation Law on July 9, 2010.

� Similar to the Federal EPA-HUD Lead Safe Renovator Law although, there are some differences (454 CMR 22.00 to 22.92)

RRP (Federal versus MA)MA� Use tarps instead of

plastic on the outside of building.

� Sufficiently isolated from adjacent interior spaces by plastic sheathing or other appropriate impermeable material.

Federal: EPA-HUD� Only plastic.� Requires plastic on

f loor only, does not address isolation of adjacent areas.

Renovation, Repair & Painting Program (RRP)

� Massachusetts RRP Law allows the Lead Safe Renovator Contractor Supervisor to use the EPA-MA approved Lead test kits to determine the presence of lead paint at the renovation work site.

Renovation, Repair & Painting Program (RRP)

� Massachusetts Law states that the Lead Safe Renovator Supervisor must be present at the job site while work is in progress.

� The EPA-HUD law allows the Renovation Supervisor to leave the job site but must be available by phone.

Funding

� Tax credit up to $1500/unit for total de-leading.

� $500 for Interim Control work.� Grants, No Interest , Deferred loans, Low

interest available to eligible property owners.

� US, DHUD; MA Exec Office of Community Development, MHFA, Local community development, and banks.