Lead Paint Disclosure Now Mandatory

HUD and EPA have imposed new disclosure requirements concerning the existence of lead-based paint in homes and apartments built before 1978, the year lead paint was banned. The new federal regulation (61 FR. 9064 codified at 24 C.ER. Part 35 and 40 C.ER. Part 745) requires sellers, brokers and landlords to disclose everything they know about lead paint in a home. The regulation became effective on September 6, 2024 for owners of more than four homes and goes into effect on December 6, 2024 for owners of one to four homes.

A violation of the regulation could subject the seller, broker or landlord to civil monetary penalties and criminal fines of up to $10,000 per violation in addition to a private lawsuit. They can be held jointly and severally liable to the buyer or tenant in an amount equal to three times the amount of damages incurred. A court can also award attorneys fees, expert witness fees and costs.

The regulation requires a seller and landlord to:

  • Disclose all information about "any known lead-based paint and/or lead-based paint hazards in the target housing. being sold or leased" including the disclosure of lead testing-or else affirmatively state that there has been no testing on a disclosure provided to the buyer or tenant;
  • Provide the prospective buyer or tenant with an EPA pamphlet about the dangers of lead paint;
  • Include specific language in the sales, contract or lease;
  • Allow 10 days for the buyer to get a lead inspection or risk assessment and back out of the transaction based on the results, unless the parties mutually agree otherwise. (it is unclear however whether a seller may refuse to sell to anyone who won't waive an inspection);

Real estate brokers are required to inform sellers and landlords of what the regulation requires, and they must ensure compliance, except that the broker will not be liable for a failure to disclose information that was not disclosed to them.

The requirements must be carried out before the buyer or tenant has become obligated under the sales contract or lease. Where an offer has already been made, the seller or landlord must comply -on before accepting the offer. If the buyer elects.to have an inspection it may actually take place after the sales contract is signed by the buyer with the contract being contingent on the test results. A tenant does not have the right to an inspection.

HUD and EPA have developed their own sample disclosure forms which includes a lead warning statement, and contract contingency language "for the purpose of providing guidance in creating contract language. Their forms are offered as samples only and nothing in the regulations requiring the use of their specific language.

You can obtain a copy of the regulations and an official copy of the pamphlet, "Protect Your Family From Lead in Your Home" by mail from the National Lead Clearinghouse by calling 800-424-LEAD. Copies of the pamphlet obtained from the Printing Office by calling 202-512-1800. The cost is $26.00 for 50 copies. For additional information on lead paint disclosure and a copy of the HUD/EPA sample form contact Reager & Adler, PC at 717-763-1383.