Massachusetts has some of the oldest housing stock in the country, and although the federal government banned the use of lead-based paint in homes more than forty years ago, lead poisoning is still a significant issue in Massachusetts real estate. A recent Massachusetts settlement in a lead poisoning case highlights the importance of compliance with the lead laws. In this case, the child lived in a rental property that was owned by two separate landlords during the term of the rental. The child suffered from lead poisoning after the property was sold to the second landlord. Prior to going to trial, the parties agreed to settle for $375,000. The original landlord paid $175,000 of the settlement, with the remaining $200,000 paid by the second landlord.
As this case demonstrates, failure to comply with the requirements of the lead law can result in significant damages. While the requirements for the law are very similar for residential sales and leases, there are very specific obligations under each transaction type.
Residential Sales:
- For homes built prior to 1978, sellers must provide prospective buyers with the Property Transfer Lead Paint Notification prior to entering into a contract to purchase.
- The seller must provide the prospective buyer with copies of any documentation related to lead testing or remediation.
- The Seller must provide the buyer at least a 10-day period to have a lead inspection.
If a child under the age of 6 will live in the home, the owner is required by law to have lead hazards remediated entirely, or have the property brought into interim control, within 90 days of taking title.
Residential Leases:
- For homes built prior to 1978, owners must provide prospective tenants with the Tenant Lead Law Notification prior to entering into a rental agreement.
- The owner must provide the tenant with copies of any documentation related to lead testing or remediation.
- If a child under the age of 6 will live in the home or apartment, the owner is required by law to have lead hazards remediated entirely, or have the property brought into interim control, within 90 days of taking title.
- An owner may not refuse to rent to a family with children under the age of 6 to avoid the requirements of the lead law.
- An owner may delay the start of a tenancy up to 30-days to bring the property into compliance.
If a child under the age of 6 comes to reside in the property during an existing tenancy, the owner of the property is required to provide temporary housing for the tenants while the lead hazards are remediated. The Landlord is responsible for reasonable moving costs, but the tenant is still required to pay the agreed-upon rent during this period.
Failure to comply with the requirements of the lead law may result in a civil penalty up to $1,000 under Massachusetts law, and both criminal and civil penalties up to $10,000 under federal law, as well as damages for injuries caused by non-compliance. Owners are subject to strict liability for injuries caused by lead poisoning, regardless of whether the owner had knowledge of the lead hazard. Real estate agents may also be subject to penalties for failing to ensure that their seller and landlord clients properly completed the Lead Notification Form.