Lead Disclosure

November 1, 1996

Eight Reasons why You Should Care

Your initial reaction to the new federal lead disclosure regulations was probably to sigh, ''Here we go again. Another environmental law. More paperwork.''

Then you probably made a mental note to be sure to get all the relevant materials and promptly turned your attention to something else.

With the full implementation date of Dec. 6 for the lead disclosure law fast approaching, now is the time to stop and think a bit more about this issue. (The law's effective date for owners of more than four dwelling units was Sept. 6.)

You may be surprised at all the reasons you should enthusiastically embrace the new disclosure requirements.

  1. It's the law.This reason is unambiguous. By federal law, you're required to ensure that disclosure occurs when it's required, but you can't be held responsible for failing to disclose what you don't know. You can, however, be subject to civil or criminal penalties for failing to ensure that the disclosure process occurs at all.
  2. It's a public service. Practitioners have a rare opportunity to help educate their community about an important health issue. By providing this information in a positive and helpful manner, you can help parents protect their young children from lead poisoning when moving into a new house or apartment. Too many families have suffered tragedy when their dream home poisoned their young children. (See article below on Margaret Sauser.) Since many lead poisoning cases come from unsafe home renovation practices, disclosure can be the first step toward helping parents learn how to avoid disturbing lead-based paint and stirring up lead dust.
  3. It's good business. Sellers putting their houses on the market look to you for advice about preparing their house for showing. Without your cautionary input, some sellers may be inclined to undertake quick fix-ups, like sanding and repainting projects, that could inadvertently create lead hazards. By learning about unsafe practices with lead-based paint, you can help prevent sellers from creating problems that may be identified later in a lead evaluation.
  4. It's prudent liability practice. By working with sellers to disclose in writing, you limit your liability if problems later develop. By telling families about the possibility of lead hazards, you empower buyers to make informed decisions. By referring buyers to a qualified lead professional, you help buyers secure the best expert advice available.
  5. It's a reasoned approach. Rather than requiring property owners to evaluate and control lead-based paint hazards in their homes, disclosure provides information that allows the parties to the transaction to make their own decisions. Some people will choose to check for lead hazards, but others won't; however, no one will accuse you of not letting them decide.
  6. It's important to your market. As a real estate professional, you can use your expertise to encourage people to think rationally about lead-based paint. You know that more than 80 percent of homes built before 1978 contain some lead-based paint, but you also know that the vast majority of those homes don't contain lead hazards and are safe for families. What's important is to help families identify those situations where real hazards exist.
  7. It's not rocket science. Most concepts associated with lead disclosure are simple and easy to understand. For example, since children's exposure to lead is usually through ingesting small particles of lead dust, most buyer or tenant concern should center on the condition and location of older paint. This raises obvious questions like: Is lead-based paint peeling, flaking, or chipping? Has it been disturbed so that it creates lead dust? Although you should never make assurances to sellers or buyers about the condition of a specific property and should refer them to experts to answer their questions, it's reassuring to them if you can explain the basic lead hazards and the requirements of the law.
  8. It's here to stay. Unlike some environmental issues that seem to wax and wane in importance, lead-based paint hazards are now a matter of federal law. It's in your best interest to get up to speed and to help your clients improve their understanding as well.

There's also good news about making disclosure work smoothly. There are now better and smarter options for evaluating and controlling lead paint hazards in homes. Buyers can choose either a lead inspection to determine whether lead-based paint is present or a risk assessment to identify exposure hazards as well as options for responding.

If hazards are identified, there are a variety of hazard control options, which vary in required time and complexity, from specialized cleaning measures to hazard abatement.

Concerned property owners are no longer limited to paint removal as the only response. You need to understand the available options and know where to refer people for more information.

To help you integrate lead disclosure smoothly into your transactions, see the clip-and-save reference guide to lead disclosure accompanying this article.

A Mother's grief: How Two Children Were Poisoned Before Lead Disclosure Became Law

Margaret Sauser of Paw Paw, Mich., has lived through a mother's nightmare. She and her husband bought an older house that, unknown to them, contained lead-based paint. Paint chips and lead dust poisoned two of their children.

Over and over, she says that if they had received the now required lead hazard disclosure information, the poisoning could have been avoided. In April, Sauser spoke at NAR’s Midyear Business Meetings in Washington, D.C., thanking REALTORS® for their involvement in the development of new federal lead-based paint disclosure requirements that go into effect Dec. 6.

In 1990 Margaret and her husband purchased what they called their dream house, a first home financed with a low-interest loan and low downpayment from a local community development agency. They immediately began to renovate the home--sanding and painting the interior and exterior, removing walls, installing windows, refinishing the hardwood floors. What no one told them was that the 67-year-old house was full of lead-based paint. The water pipes were also leaded.

After six months of renovation, the Sausers moved in. Two-year-old Jonnie's behavior changed dramatically--he became unusually hyperactive--and the problem persisted. Shortly thereafter, their second child, Cameron, was born. At 11 months, he stopped growing.

Although their physician at first didn't suspect it, the Sausers finally learned after testing that both boys had been lead poisoned. Subsequent testing of the house showed it was contaminated with lead dust from the renovation. Having no success finding funds to take care of the lead hazards, the Sausers, on the advice of their doctor, left the house.

Struggling with the medical and developmental burdens inflicted on the boys by lead poisoning, and with another child on the way, the Sausers filed for bankruptcy and lost their home.

Today, after five years, the Sausers are putting their lives back together. Jonnie and Cameron have worked hard to overcome their lead poisoning and are finally doing well in school. However, the full extent of the boys’ neurological damage won't be known for some time. Their sister, Elizabeth, was born with traces of lead in her blood but wasn't lead poisoned. The family has settled into a lead-safe home.

Margaret continues to fight to ensure that no family need suffer the same way.

Confused? The EPA Has Some Answers

The government has issued answers to some commonly asked questions about the new federal lead-based paint disclosure regulations.

The responses are contained in an 11-page document, Interpretive Guidance for the Real Estate Community for the Requirements for Disclosure of Information Concerning Lead-Based Paint in Housing. The document was issued jointly by the Environmental Protection Agency and the Department of Housing and Urban Development.

Two important points in the interpretation deal with the issues of what is considered ''housing constructed before 1978'' and how the regulations will be enforced.

A pre-1978 house is defined as housing for which a construction permit was obtained or on which construction was started before Jan. 1, 1978.

The EPA says that enforcement during the first year will focus on ''compliance assistance'' and that the agency will seek civil penalties only in response to egregious violations that put the public at risk.

The disclosure requirements went into effect Sept. 6 for owners of more than four dwelling units and will go into effect Dec. 6 for owners of four or fewer units.

For a copy of the EPA-HUD document, contact your local association of REALTORS®.

Lead Disclosure in Pre-1978 Homes

A Clip-and-Save Guide

The federal lead-based paint disclosure law going into full effect Dec. 6 imposes new obligations on real estate professionals. Although not comprehensive, this guide can serve as a quick reference to key points.

For a more detailed explanation, see NAR's handbook Lead-Based Paint: A Guide to Complying With the New Federal EPA/HUD Disclosure Regulations (Item #141-558-TR). For ordering information, call Customer Service, 800/874-6500. Member price: $5 per copy, not including sales tax and shipping and handling. Minimum order: five copies.

Real estate professionals must

  • Advise owners of their disclosure obligations
  • Ensure that the disclosure occurs before the buyer or lessee is obligated under contract
  • Complete and retain acknowledgment statement for three years

What housing is covered:

As of Dec. 6 of this year, all sales and leases of pre-1978 residential properties except

  • Zero-bedroom dwellings
  • Housing for the elderly or disabled (unless occupied by a child under 6)
  • Property sold at foreclosure
  • Rental property that has had no lead-based paint
  • Property leased for 100 days or less
  • Leased properties for which disclosure has already occurred and no new facts are known

Owners, landlords, and real estate professionals share responsibility to

  • Provide lead-hazard information pamphlet Protect Your Family From Lead in Your Home or EPA-approved state pamphlet to buyer or tenant (see right)
  • Disclose known lead-based paint hazards and provide copy of existing reports to buyer or tenant
  • Complete and retain disclosure and acknowledgment statement for three years

Additional disclosure requirements for multi-family properties:

  • Must disclose unit-specific and common-area information, and records of lead evaluation of entire property if testing has already been performed.

Buyer's 10-day opportunity for a lead evaluation in sales transactions:

  • Any evaluation is at buyer's option, like home inspections. (Buyer usually pays for testing but can negotiate to have seller pay.)
  • Time period can be shortened, extended, or waived only by mutual agreement.
  • Parties should include contingency language in the sales contract, like that for home inspections, to address each party's rights if lead is found.
  • There is no requirement to remove or abate lead in the dwelling if testing finds lead.

Getting more information:

For the EPA pamphlet or a copy of the regulations, call 800/424-LEAD.

Talk to your local or state association of REALTORS® for advice on customized sales contract forms.

Anne Guthrie Wengrovitz is deputy director of the Alliance to End Childhood Lead Poisoning, Washington, D.C., and a salesperson with Chase Realty, McLean, Va.

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