LEAD PAINT

Overview: From the early 1600s to 1978, lead was used in the manufacture of most exterior and interior paints, as well as some clear varnishes and stains. In 1971, Massachusetts passed its first law governing the use of lead. Lead paint use became illegal in 1978. Today, national and state lead paint laws and regulations are extremely complex. As a result of these laws, real estate professionals have affirmative obligations which they must perform in order to comply with these laws. Although the U.S. Environmental Protection Agency and the U.S. Department of Housing and Urban Development have their own lead paint requirements, Massachusetts property owners are able to meet new federal lead disclosure and notification regulations simply by using the Massachusetts notification materials.

Relevant Law: M.G.L. Chapter 111 (specifically sections 190 through 199)

Chapter 482 of the Acts of 1993

Federal Lead Paint Law Title X (see also 42 U.S.C. 4852d)

Important issues: The Massachusetts lead paint law requires that any property owner of a structure built before 1978, where a child under the age of 6 resides, de-lead the property up to a height of 5 feet from the floor. The owner’s legal obligation exists regardless of the owner’s knowledge of the presence of lead paint. Effective July 1, 1988 and December 1, 1994, all prospective purchasers and tenants, respectively, of residential property built prior to 1978 must be provided with a notification form regarding the presence of lead-based paint in the housing.

Property Sales -- The Property Transfer Lead Notification Program requires owners of property built before 1978 who are selling or leasing with an option to purchase and any agent who is involved with the sale or lease to provide prospective purchasers with information regarding the compliance status of the property. Also included in this information is a Property Transfer Notification package explaining the Lead Law, legal responsibilities, the hazards of lead paint, etc.; a copy of any lead determination inspection, risk assessment and/or compliance documents; information about lead poisoning which occurred at the property; and information about any criminal complaints that have been brought against the owner for violations of the Lead Law. A real estate agent has the following responsibilities in property sales: (1) Read or allow the buyer to read the notification form; (2) Verbally inform the buyer of the possible presence of lead and the provisions of the Lead Paint Law; (3) Verbally inform the buyer of the availability of a lead paint inspection; and (4) Have the buyer sign the notification form.

The notification form must be signed prior to the signing of the purchase and sales agreement. The law allows the buyer 10 days in which to have a lead inspection performed. If lead is discovered, the buyer may withdraw from the sales transaction.

Property Leases -- As of December 1, 1994 property owners are required to provide tenants or prospective tenants with a lead paint information package prepared by the Massachusetts Department of Public Health (DPH) regarding the dangers of lead paint and the requirements of the Lead Paint Law. This notification form is accompanied by a certification form which must be signed by the owner/lessor, the tenant, and the representing agent.

Property owners who have not yet signed a lease may delay the start of a tenancy for up to 30 days during which the owner can obtain a letter of interim or full compliance indicating the properties compliance status with the Lead Paint Law. In addition, the law allows owners to offer substitute accommodations in order to have the rental unit vacated so the lead paint may be abated or contained. If substitute accommodations offered, the owner must pay moving costs and any excess use and occupancy charges for the substitute unit which exceeds the rent paid by the tenant. If the tenant refuses the substitute accommodation, the property owner’s financial liability is limited to paying the tenant’s moving expenses and the excess use and occupancy charges for the rejected substitute unit.

The Lead Paint Law is extremely complex. The above summary is only a partial summary of the requirements of the Lead Paint Law. These laws contain numerous caveats, exemptions, and grandfathering provisions. Consult legal counsel to ensure complete and accurate compliance with the Lead Paint Law requirements.

A: M.G.L. chapter 111, section 197A(e) states that an owner who fails to comply is (1) liable for all damages caused by the failure to comply (including medical expenses and special education expenses); (2) a penalty of up to $1,000; and (3) subject to a M.G.L. chapter 93A (Consumer Protection Act) lawsuit if the person is in the real estate business (e.g. a real estate broker or builder).

A: No. Property owners may not discriminate against families with young children in order to avoid de-leading a unit. The following activities are illegal: (1) to refuse to rent to families because of lead paint in the unit; (2) to harass or raise the rents of a family for exercising any rights under the state sanitary code; (3) to evict a family because of lead paint in a unit; (4) to require that prospective tenants submit the results of a blood lead test as a condition of renting; and (5) to require prospective tenants to sign a statement waiving their rights under the Lead Law. There are substantial criminal and civil penalties for engaging in discriminatory acts.

A: Yes. The law states that this information must be given to a "prospective tenant" and does not create an exemption for tenants with older or no children.

A: M.G.L. Chapter 111, section 199B exempts short-term vacation or recreational rentals of 31 days or less from these lead paint requirements as long as (1) the rental unit has no chipping or peeling paint and (2) the tenant has received the Short-Term Vacation or Recreational Exemption Notification form. This form must be provided to the tenant by the owner prior to entering into a tenancy agreement.

Last Update 12/97

For more information please contact the following:

Massachusetts Association of REALTORS ® at (800) 370-LEGAL