Liability from Older Home Renovations.
If you buy and fix up older homes to sell or hold as a rental, it just got a lot more difficult and expensive. New federal regulations effective in April of this year (the “New Lead Rules”), now require professional remediation techniques when even a relatively small amount of paint is disturbed.
Many people are familiar with the existing lead paint disclosures and notices, which are required upon sale or rental where the property was built before 1978. One of the required documents is a booklet produced by the EPA called “Protect your family from Lead in the Home”. The Arizona Association of Realtors provides forms for sales and rentals, which must accompany the booklet. In that form, the owner of the property discloses, among other things, whether lead paint is known to exist, and if any testing or reports were prepared.
The New Lead Rules apply to work in progress that “disturbs” the painted surface on any window, or more than six square feet of interior, or more than 20 square feet of the exterior of a property built prior to 1978. The definition of “disturbs” includes sanding, scraping, and removal of paint with a heat gun. The new regulatory scheme is supplemental to the existing disclosure rule and applies when work is or will be done.
The New Lead Rules are different from the old as they require both affirmative action and disclosure. The disclosure part requires that another EPA booklet be supplied entitled “The Lead-Safe Certified Guide to Renovate Right” http://epa.gov/lead/pubs/renovaterightbrochure.pdf. This document must be supplied before the work is done if there is an existing tenant. The back page of the booklet is a sample pre-renovation form for the tenant’s signature to prove you gave it to the tenant. If the work is performed prior to occupancy or sale make sure you supply the New Lead Rules booklet at the earliest possible opportunity and get signatures as proof of compliance.
The additional cost and potential delay comes from the requirement in New Lead Rules that only a “Certified Renovator” performs the work. First, the contractor will be have to be certified. Then lead safe practices must be followed during work, which includes testing before and after. There is a limited exception to the use of a Certified Renovator for work done by owner-occupants.
It does not matter if the home is vacant when the work is done. The work must be done by Certified Renovator and the booklet must be supplied to the new renter or purchaser no later than occupancy. Even if the work is performed in your own home the New Lead Rules apply if there are children under the age of six or pregnant women living in the home.
The fine for failure to comply is reported to be $37,500 per day. So if you do the work or arrange for the work to be done on a home built prior to 1978, and you can’t prove the work was done by a Certified Renovator, be prepared to reach into your wallet!
No doubt the EPA is looking for people to fine who ignore the New Lead Rules where the renter or new-owner/ occupant has children under the age of six. Do not become the “poster child” for an EPA enforcement action; do it right by using Certified Renovator and by providing the booklet.
If you want to know more about how to comply with the law or need other help, let me know.
– N. Mark Kramoltz © 2015