Environmental Law Update provides information on developments in environmental law as it applies to property, probate and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

New Lead-Based Paint Regulation Affects Renovators

There have been relatively few new federal environmental laws or regulations affecting real estate in recent years. This spring, however, a new regulation went into effect that may have significant consequences for owners and renovators of multi-family properties.

On June 1, 1999, EPA implemented its final regulation on renovation work in pre-1978 "target" housing, Lead: Requirements for Hazard Education Before Renovation of Target Housing, 40 C.F.R. § 745.82-88. Under the new rule, apartment building owners and management companies that undertake renovation activities in pre-1978 housing must provide notice to owners and occupants before commencing renovation work.

Most apartment building owners and management companies likely are already aware that they have certain disclosure requirements relating to lead-based paint in older housing. The Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851 et seq. (Title X), which applies to most pre-1978 housing, requires both landlords and sellers of pre-1978 housing to disclose to tenants and purchasers the presence of known lead-based paint, make available any relevant inspection reports, provide an EPA approved lead hazard information pamphlet and keep records relating to all these actions.

Overview of Requirements

The renovation requirements apply to "all renovations of target housing for compensation." A "renovator" is any person performing a renovation for compensation. Renovation is broadly defined to mean "the modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces" including "sanding, scraping, removal of walls, ceilings, large surface replastering, window replacement and re-plumbing." The rule excludes minor repairs that disrupt two square feet or less of painted surface or renovations where a certified inspector has made a written determination that the components affected by the renovation are free of paint or other surface coatings that contain specified amounts of lead.

The rule distinguishes between renovations in dwelling units and renovations performed in common areas. Within 60 days before undertaking renovations in any residential dwelling unit, the renovator must provide the owner of the unit with EPA's pamphlet, "Protect Your Family From Lead in Your Home." The renovator must also either obtain from the owner a written acknowledgment of receipt of the pamphlet or obtain a certificate of mailing at least seven days before the renovation. If the owner does not occupy the unit, the renovator must provide the pamphlet to an adult occupant. The renovator must obtain from the adult occupant written acknowledgment of receipt of the pamphlet; certify that it has delivered the pamphlet but has been unsuccessful in obtaining written acknowledgment; or obtain a certificate of mailing at least seven days before the renovation.

When renovating common areas of multi-family dwellings (any building with more than four units), no more than 60 days before undertaking renovations in common areas the renovator must (1) provide the owner with the pamphlet and either obtain written acknowledgment of receipt or obtain mailing certification; (2) notify the unit occupants in writing, or ensure written notification to each unit, describing the general nature and location of the proposed renovation activities, the expected dates of the renovation and a statement that the pamphlet will be available on request; (3) prepare, sign and date a statement describing the steps taken to notify the unit occupants; and (4) provide further notification if the scope or date of the renovations changes.

The rule provides specific re-quirements for the written acknowledgments and provides sample language that a renovator can use. Renovators must retain all records related to these requirements for a period of three years. Finally, property owners and renovators should also be aware that renovations of areas containing lead-based paint may also trigger requirements promulgated by the Occupational Safety and Health Administration.

Renovators Must
Track Compliance

As is the case with the disclosure requirements under Title X, compliance with the renovation regulation is generally straightforward. There are some gray areas in the law, however, and it can be easy for clients to forget to keep up with the paperwork involved. It is important to realize that failure to comply with these requirements can lead to civil or even criminal penalties. Both EPA and HUD have made it clear that they will actively prosecute violators and are in the process of developing an enforcement policy. Owners, managers and renovators of older housing stock would be wise to develop internal procedures to ensure compliance with the regulation.

Environmental Law Update Editor:  James B. Witkin, Linowes and Blocher, 1010 Wayne Ave., Silver Spring, MD 20910.

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