| Many
housing units in California still contain lead-based paint,
which was banned for residential use in 1978. Lead-based
paint can peel, chip, and deteriorate into contaminated
dust, thus becoming a lead-based paint hazard. A child’s
ingestion of the lead-laced chips or dust may result in
learning disabilities, delayed development or behavior
disorders.
The federal Real Estate Disclosure and Notification
Rule requires that owners of "residential dwellings"
built before 1978 disclose to their agents and to prospective
buyers or lessees/renters the presence of lead-based
paint and/or lead-based paint hazards and any known
information and reports about lead-based paint and lead-based
paint hazards (location and condition of the painted
surfaces, etc.). The Rule defines a residential dwelling
as a single-family dwelling or 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.
Properties affected by the Rule are termed target housing.
Target housing does not include pre-1978 housing which
is:
• sold at a foreclosure sale (but a subsequent
sale of such a property is covered);
• a "0-bedroom dwelling" (e.g., a loft,
efficiency unit or studio);
• a dwelling unit leased for 100 or fewer days
(e.g., a vacation home or short-term rental), provided
the lease cannot be renewed or extended;
• housing designated for the elderly or handicapped,
unless children reside there or are expected to reside
there;
• leased housing for which the requirements of
the Rule have been satisfied, no pertinent new information
is available, and the lease is renewed or renegotiated;
• rental housing that has been inspected by a
certified inspector and found to be free of lead-based
paint. (The Rule allows use of state certified inspectors
only until a federal certification program or a federally
accredited state certification program is in place.)
Sellers (and lessors) of units in pre-1978 multifamily
structures must provide a buyer (or lessee) with any
available records or reports pertaining to lead-based
paint and/or lead-based paint hazards in areas used
by all the residents (stairwells, lobbies, recreation
rooms, laundry rooms, etc.). If there has been an evaluation
or reduction of lead-based paint and/or lead-based paint
hazards in the entire structure, the disclosure requirement
extends to any available records or reports regarding
the other dwelling units.
The Rule requires that a seller of target housing offer
a prospective buyer ten days to inspect for lead-based
paint and lead-based paint hazards. This 10-day inspection
period can be increased, decreased, or waived by written
agreement between buyer and seller. The Rule does not
require a seller to pay for an inspection or to remove
any lead-based paint/hazards, but merely gives a buyer
the opportunity to have the property inspected.
The federal Environmental Protection Agency (EPA) publishes
a pamphlet titled "Protect Your Family From Lead
In Your Home." This pamphlet describes ways to
recognize and reduce lead hazards. The Rule requires
that a seller (or lessor) of target housing deliver
this pamphlet to a prospective buyer (or tenant) before
a contract is formed. Provision of a California pamphlet
now constitutes compliance with this requirement.
The Rule further requires that the seller’s (or
lessor’s) lead-based paint/lead-based paint hazards
disclosures, a Lead Warning Statement, and the buyer’s
(or lessee’s) acknowledgment of receipt of that
information, the offer of inspection period (or waiver
of same) and the EPA pamphlet be included in an attachment
to the contract. Seller (or lessor), buyer (or tenant)
and agent must sign and date the attachment. The retention
period, for sellers (or lessors) and agents, of this
document is three years from completion of the sale
(or from commencement of the lease/rental).
A real estate agent must ensure that:
•
his or her principal (seller or lessor) is aware of the
disclosure requirements;
• the transaction documentation
includes the required notifications and disclosures;
• the buyer or lessee/renter receives the EPA pamphlet;
and,
• in the case of a sale, the buyer is offered
an opportunity to have the property inspected for lead-based
paint and lead-based paint hazards. In the case of a sale,
"agent" does not include one who represents
only the buyer and receives compensation only from the
buyer.
• Violation of the Rule may result in
civil and/or criminal penalties.
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