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Lead-Based Paint (LBP): Multifamily Properties

March 2004

Do you own or manage a rental property built before 1978?  If so, there's a good chance that you are not complying with current federal regulations regarding lead-based paint (LBP). A Protech article  in the April 2004 magazine of the Apartment Association of Michigan gives more details.

Lead-Based Paint (LBP) Update

(Text of an article that appeared in the April 2004 magazine of the Apartment Association of Michigan)

By now AAM members with pre-1978 properties have the LBP drill down pat. Just one more piece of paper to have signed along with the lease, and you're done. Right?

Wrong. Here are examples of regulatory problems we've encountered at AAM member sites:

  • Pre-lease disclosure forms missing certain mandatory language
  • Owner thought disclosures were only needed if testing had identified LBP. [Not true! With few exceptions, the rules apply to all pre-1978 properties.]
  • Inspection reports not disclosed or made available to tenants. [When you bought or financed the property, you almost surely had a Phase I ESA conducted. Did it mention LBP?]
  • No tenant notification prior to maintenance that disturbs paint in a unit, in commons or on the exterior. [Many owners don't realize that this requirement even exists, or that EPA conducts random audits of maintenance records and counts each missing record as a presumed violation.]
  • OSHA Lead-in-Construction regulations being ignored.
  • LBP recently applied to stairs, porches & playground equipment. At one property where we sampled more than a thousand surfaces, the only LBP identified was on a baby swing! [By the way, this can be a problem even in newer properties. Did you know that it's still legal to sell LBP? One example is yellow pavement marking paint.]

You can probably be out of compliance for years without ever getting caught, but when that day comes, you'll be sorry. Fines can run to $10,000 per violation, and willful disregard can even bring imprisonment. Tenants can also sue for attorney fees and treble damages, including moving expenses, just because your paperwork was inadequate.

So what's an owner to do?

    1. Hire a professional lead inspector to audit your paperwork and prepare a certified one-page summary of all prior LBP reports (including Phase I ESAs). Then you won't have to make the entire reports available to every tenant.
    2. If any problems were found, correct them immediately. Then cross your fingers and wait out the EPA's three year statute of limitations, or apply for a waiver of penalties (always granted, so far).
    3. If your property was built after 1965, it almost surely has no LBP. Hire a licensed professional to prove it. The inspection may involve up to 2000 tests, and if no LBP is found, a few days later you will be holding a certificate exempting the property from all LBP regulations. No disclosures required ever again, no extra paperwork, no chance to stumble, no confused or frightened tenants. All it takes is a one-time investment of as little as $10-20 per unit.

 More information on the web:

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