9.5 Lead

Lead is found in the dirt around houses, especially property near major roads due to lead particles from auto emissions drifting onto the property. The lead is then tracked into the house. Industrial and manufacturing facilities such as radiator repair shops, brass or bronze foundries, battery manufacturers, steel mills, and bridge construction areas are examples of environments with a high potential for lead exposure.

Lead-Based Paint Problems:

Lead has been used in paint for centuries. It increases durability and has a color depth quality. In the United States it is estimated that:

• Almost all houses built before 1940 have lead in the paint

• Seventy percent (70%) of houses built between 1940 and 1959 have lead in the paint

• Twenty percent (20%) of houses built between 1960 and 1978 have lead in the paint After 1978 the amount of lead in paint was limited to 600 parts per million and therefore is not deemed significant

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Company Policy for Licensees regarding Lead:**

In 1994, the United States Environmental Protection Agency (EPA) and the United States Department of Housing and Urban Development (HUD) drafted new federal regulations on the disclosure of lead-based paint hazards in residential properties to comply with the Residential Lead-based Paint Hazard Reduction Act of 1992. These new rules were implemented in 1996 in cooperation with the National Association of REALTORS®.

The 1996 rules provide that sellers or their real estate broker/agent must do all of the following:

• Provide to buyers and tenants a federally approved lead based paint hazard information pamphlet entitled "Protect Your Family from Lead in Your Home."

• Disclose the presence of any lead-based paint or related hazard in any house built prior to 1978.

• Provide buyers and tenants copies of any available reports dealing with the presence of lead-based paint or lead-based hazards.

• Provide buyers (but not tenants) a 10 day or mutually agreeable period for a lead paint assessment or inspection before a purchaser becomes obligated under the contract to purchase. The buyer may waive this right to test for lead.

• The lead disclosure rules apply to both the purchase of residential property and to the renting of residential property built prior to 1978, with the following exceptions:

1. Property sold at foreclosure.

2. Rental property that is certified "lead-based paint free" by an inspector who is certified under a federal program or federally authorized state certification program.

3. Property leased for 100 days or less with no lease renewal or extension.

4. A renewal of existing leases, if disclosure was made at the time of the initial lease. However, disclosure must be made when renewing leases that were in effect on September 6, 1996.

5. Units with no bedrooms or no separation between sleeping and living areas (e.g., studio apartments, dormitories, individual rental rooms in a residential dwelling).

6. Housing for the elderly or disabled if children under the age of six are not expected to live there.

The signed documentation demonstrating that the purchaser or lessee received the required disclosure information must be retained by the seller, the landlord, or agent for a period of three years from the date of sale or lease. The burden of compliance with the lead disclosure law is on the seller and/or lessor. If a licensed real estate agent is involved in the transaction, it is the licensee’s responsibility to advise the seller/lessor of the lead disclosure obligation. This responsibility extends to all agents involved in the transaction, except for a buyer’s agent who is actually paid by the buyer. Records relating to the lead-based paint disclosure and executed disclosure documents must be kept for a minimum of three years for completed transactions.

Compliance with the Lead-Based Paint Disclosure Law is mandatory and civil penalties can range up to $10,000 for each violation. In addition, those who intentionally either ignore or violate the law can face up to one year imprisonment and up to a $10,000 fine, or both. The injured party (buyer or tenant) is also able to pursue relief under the federal statute for failure to disclose a hazardous condition, which by law is a material fact. The injured party may receive up to three times the damages sustained. The damages may include medical costs related to lead-based paint poisoning and costs associated with correcting the lead-based paint problem in the structure.

The buyer’s agent should deliver to the buyer the "Protect Your Family from Lead in Your Home " pamphlet early on in the licensee/buyer relationship, and/or the local State pamphlet (varies per State) such as, "Environmental Hazards: A Guide for Homeowners, Buyers, Landlords and Tenants," either or both of which fulfill federal requirements.