Better safe than sorry Featured

8:00pm EDT September 25, 2008

Many homes and apartment buildings constructed before 1978 contain lead-based paint. While the presence of lead paint, in and of itself, does not necessarily pose a hazard to a dwelling’s tenants, it can be harmful to young children under the age of 5 if the integrity of the painting surface is compromised by chipping and peeling. Lead exposure claims are especially pervasive in inner-city areas that typically have older housing.

“As a person in the rental property business, it is very important to protect oneself from childhood lead exposure claims or lawsuits,” says Rebecca Filiatraut, partner at Secrest Wardle.

Smart Business spoke with Filiatraut about how to protect oneself from lead exposure claims, how the remediation process works and what type of legal liabilities can arise.

How can landlords/property owners protect themselves from lead exposure claims?

First and foremost, a property owner should have his rental property inspected by a certified lead remediator if it was built before 1978 to determine if there are any lead paint hazards present. If there are lead hazards at the property, he or she should hire a certified lead remediator to perform the repairs in order to prevent the spread of lead dust and chips during the process. Secondly, whether or not the property contains or has ever contained any lead-based paint hazards, the owner must provide Title X disclosure statements as well as the EPA pamphlet titled ‘Protect Your Family From Lead in Your Home’ to all tenants at the inception of their leases. It is also wise to obtain a signed and dated statement from the tenant acknowledging receipt of these materials.

Title X disclosures provide the tenant with a written statement by the landlord indicating if the property has ever tested positive for any lead paint hazards. The requirements of Title X are federally mandated and are strictly enforced by the Environmental Protection Agency. A landlord or property owner can obtain copies of these documents either from their local health department or from the EPA Web site located at www.epa.gov.

In addition, any complaints from tenants about chipping or peeling paint conditions should be promptly and thoroughly investigated by the property owner.

How does the remediation process work?

Remediation of lead hazards can be a costly and time-consuming process. If a child is found to have an elevated blood lead level by his or her pediatrician, a referral to the appropriate health department is usually made. Following referral to the health department, an inspection will be conducted to determine the actual source of the child’s exposure. If it is determined by the health department inspector that the rental property does have areas of hazardous chipping and peeling lead paint, a written notice will be sent to the owner of the property, and the owner will have a period of time within which to complete all repairs, usually 30 to 60 days. Occasionally, it is possible to receive a grant to cover the cost of the remediation through HUD or even Section 8.

If the landlord or property owner intends to perform the remediation work him or herself, it is extremely important to remember to completely encapsulate, preferably with Visquine, the area being remediated in order to contain any lead dust, which could contaminate other areas of the property, including the soil surrounding the property itself. The area being remediated must also be wet-sanded, as dry sanding will only serve to spread the hazardous lead paint dust and further contaminate the subject property.

What type of legal liabilities can arise from lead exposure?

If a child is found to have an elevated blood lead level due to exposure determined to have occurred while living at a particular property, legal liability may result. A child may be entitled to receive a monetary sum to compensate him or her as a result of damages due to the high lead levels. These damages can include loss of IQ points, learning disabilities requiring special education, behavioral problems, and other related brain or neurological damage. Certainly, the damages in these cases can be very significant.

Additionally, if a landlord or property owner is found to have knowingly violated the requirements of Title X, liability may be deemed admitted and the only issue remaining for the trier of fact will be damages. Outside of the context of civil liability, a fine can also be imposed by the EPA against a property owner who has not provided the requisite Title X information to his tenants. This fine could be up to $10,000 per property. In recent years, the EPA has been conducting independent audits of landlords and property owners across the country to determine compliance.

REBECCA FILIATRAUT is a partner at Secrest Wardle. Reach her at (248) 539-2827 or rfiliatraut@secrestwardle.com.