What do you know about lead-based paint? Perhaps you know that it's a toxin that's espe-
cially dangerous to children under the age of six, and that even fetuses can be affected since they can be exposed to lead through their mother's bloodstream. Maybe you know that the effects of ingested lead can include permanent nervous system damage, learning disabilities, reduced I.Q., hyperactivity and impaired memory. In extreme cases, exposure to lead can result in mental retardation, convulsions, coma and death. You may even be aware that the manufacture and use of lead-based paint was banned in 1978.
But what you know about the dangers and use of lead-based paint isn't as important to the federal government as what you reveal about the existence of lead-based paint and its related hazards in your property. New regulations jointly promulgated by the United States Environmental Protection Agency (EPA) and the United States Department of Housing and Urban Development (HUD) are now in effect. These require that owners, sellers and lessors of residential dwellings disclose to prospective buyers and tenants whatever is known about the presence of lead-based paintnot only in the individual dwelling unit in question, but throughout the entire property.
Understanding the New Requirements
The EPA/HUD regulations governing lead-based paint disclosure went into effect on September 6, 1996 for residential buildings containing more than four dwelling units and on December 6, 1996 for smaller residential properties. These regulations apply only to buildings built before 1978. The regulationswhich also apply to subletsrequire that sellers and lessors of residential units must disclose to prospective buyers and tenants any known existing lead-based paint and lead-based paint hazards in both the unit in question and throughout the entire property; and must provide to the prospective buyer or tenant any reports about the presence of lead-based paint in the property, including reports regarding the common areas or a statement that there is no current knowledge of the presence of any form of lead-based paint or lead-based paint hazard. This requirement includes records regarding dwelling units other than the unit being sold or leased. The same information must be provided to any real estate broker involved in the transaction.
Sellers and lessors must provide to prospective buyers or tenants a copy of the EPA/HUD booklet, Protect Your Family From Lead in Your Home. Contracts of sale and leases must contain a lead warning statement, and an acknowledgment of receipt of information signed by the prospective buyer or tenant.
Sellers must also provide a ten-day window in which prospective buyers can arrange, at their own cost and discretion, for a lead-based paint risk assessment to be performed in the unit in question. This requirement is optional for lessors and may be waived by mutual agreement of the seller or lessor and the purchaser or tenant. In addition, the prospective purchaser must have the opportunity to cancel the sales contract and obtain a refund of any contract deposit if he is dissatisfied with the lead-based paint disclosure information provided or revealed.
While the new regulations do not require that the seller or lessor test, remove or abate lead-based paint, evidence of compliance with the regulat ffb ions must be presented at all closings of sales. Failure to comply with these regulations can result in HUD penalties of $10,000 for each violation, and similar if not higher civil and criminal penalties under the Toxic Substances Control Act (TSCA). Violators may also be subject to treble damages, court costs, attorney's fees and expert witness fees to a successful plaintiff.
A serious inquiry should be made to determine what information is available concerning lead-based paint in the building, suggests Howard Lazarus, a principal of Tudor Realty Services Corp., which manages 60 residential properties throughout New York City. One possible source is the building-wide environmental report that may have been conducted during mortgage refinancing. That report should be reviewed to see whether or not it contains lead-based paint information.
Also, a violations search for the building should be conducted and reviewed. Another possible source is shareholders or unit owners who may have had an investigation done in their own apartments for their own reasons. That information may have become available to the property, or should be made available now. We've also written to every owner of blocks of units in each property and asked them to share any information they have in their files.
Who's Responsible For What?
According to Marianna Koval, a lawyer and the founder of Lead Safe Home, Inc., a Brooklyn-based environmental and lead consulting/testing firm that performs lead inspection and risk assessment, most children are lead poisoned from ingestion of lead dust, not paint chips. Like asbestos, lead is only dangerous when it's disturbed, Koval explains. Unlike asbestos, lead is airborne for less than two hours. But it does settle on surfaces. If you live in a building or unit that had been painted before 1960, and sanding or sandblasting goes on during an alteration or renovationeven if the surface has been painted again since 1960the lead dust is disturbed. So if a co-op or condo is doing repairs to any of the common areas, the building needs to be really careful, because it can be held liable if a child gets lead poisoning. Similarly, individual residents doing alternations or renovations within their own units must be careful. To this end, Koval recommends that properties write and enforce lead-specific work rules.
Last August, Orsid Realty Corp., which manages about 56 properties throughout New York City, made the same recommendation to its buildings in a comprehensive memo outlining the new regulations which included a section on essential maintenance practices for property owners relative to lead-based paint and renovations or alterations. The section was recommended as an addition to the alteration and renovation agreement used by Orsid-managed properties.
The biggest problem facing co-ops and condos, says Tom Pasquazi, Orsid's director of management, is the line of demarcation for responsibility to deal with the lead-based paint. The interpretations we've gotten from insurance companies and attorneys is that responsibility for dealing with lead-based paint follows the same lines of responsibility as outlined in the proprietary lease or offering plan. Typically, proprietary leases and offering plans stipulate that repair or maintenance responsibility for features inside units falls to the shareholder or unit owner when the feature is outside the walls, and to the building when the feature (such as pipes) is inside the walls. The repair or maintenance responsibility for features of a decorative nature within residential units almost universally falls to the shareholder or unit owner, and paint is generally considered to be such a decorative feature.
According to Pasquazi, A co-op or condo's exposure generally falls to the common areas, such as lobbies, hallways, basements, etc. In cases where responsibility isn't clearly defined, the responsibility generally falls to the co-op or condo. The most sensible thing for buildings to do is to monitor the condition of all public areas. Any type of f ffb laking or peeling should be addressed immediately.
When A Hazard Exists
Lead assessment is the first step in determining whether or not lead-based paint exists. According to Koval, The best lead-assessment technology is XRF (x-ray fluorescence), which has a radioactive element that penetrates the painted surface and activates the lead molecules, which emit a characteristic frequency that the machine can measure. But many assessment companies who use the machine say, M-You've got lead everywhere,' and then walk out. This is why you should also have a risk assessment performed, which tells you whether or notand wherethere's an actual hazard.
If a lead hazard is detected, abatement falls into two categories: encapsulation and removal. GlobalTech, Inc., is a company that provides environmental solutions for hazardous materials. It is also the sole distributor of Leadlock, one of the most highly regarded, most effective lead encapsulant products on the market. According to Joe Cusenza, a principal of GlobalTech, Inc., Encasement is every bit as effective as removal. In fact, removal can sometimes create another hazard by disturbing additional lead or allowing lead to migrate. Also, the cost for removal can be as high as $16 per foot, whereas the cost of encapsulation using the Leadlock product is only about $3.10 per foot.
Whether the decision is made to remove or encapsulate, Your final clearance is based on a dust wipe test as opposed to air sampling, since lead settles, explains Barry Maher, senior vice president of H&S Environmental, Inc., which does lead paint removal and encapsulation. Maher adds that the way the abated area is cleaned after the job is critical, since you can create more of a problem disturbing the lead than if you left it alone.
No Need to Panic
The experts agree that it's unwise to engage one firm to do both testing and abatement. Also, since there's no licensing of lead abatement professionals in New York State, if you're considering abatement, find someone who's licensed in another state such as New Jersey or Connecticut. Says Koval, It's not as important to know whether or not you have lead-based paint as to know whether or not you have a hazard. The first step is to get an accurate risk assessment and then take the appropriate actions with the most qualified contractors. Above all, do not be drawn into a panic.
Ms. Dershowitz is a Contributing Editor for the Cooperator.