Use of lead is not new. Lead was one of the first metals discovered by man and was in use before 3000 BC.
Beginning in 753 BC, the ancient Romans used lead for making water pipes and kitchen cookware. Today many believe lead poisoning was the culprit for the infertility of Julius Caesar (.. who did manage to father one child despite that he enjoyed women as much as he enjoyed wine) and his successor, Caesar Augustus (.. who was sterile), and was a contributing factor in the fall of the Roman empire.
Modern appreciation of the perils of lead resulted in the federal government banning the use of lead based paint in dwellings in 1978, as well as federal, state and local laws, including federal regulations that have at least since 1994 mandated certain disclosures in real estate transactions.
More than three quarters of the U.S. housing stock was built before 1978 and contains some lead based paint (i.e., more than 64 million dwellings).
It is beyond dispute that paint that has chipped or is pealing, or on surfaces that rub together such as windows and doors, creates lead dust which can pose a serious health hazard to occupants and visitors, especially young children and pregnant women.
In 2018 there were 2,049 children in Maryland alone, reported to have at lease 5 micrograms of lead per deciliter of blood. No level of lead exposure is considered safe.
Federal law requires that before being obligated under a contract to buy housing built prior to 1978 (.. and there are few exceptions, for dormitories, vacation rentals, housing for the elderly and the like), each of the more than 3 million home buyers each year must receive the following from the seller:
An EPA approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your Family From Lead In Your Home (PDF).
Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building.
For multi-unit buildings (e.g., the sale of a condominium unit), this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building wide evaluation.
An attachment to the contract of sale, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the seller has complied with all notification requirements. EPA provides a Sample Seller’s Disclosure of Lead.
A 10 day period to conduct a paint inspection or risk assessment for lead based paint or lead based paint hazards. And while other provisions of this federal law may not be waived, the parties may mutually agree, in writing, to lengthen or shorten the time period for inspection or may waive this inspection opportunity.
As noted there are, additionally, state and local laws in many jurisdictions that make compulsory more and additional disclosures at the time of contracting.
Similarly, federal law also commands that before signing a lease for housing built before 1978, the more than 9 million renters signing a lease each year must receive substantially the same disclosures, including EPA has provided a Sample Landlord’s Disclosure of Lead.
Moreover, a real estate agent is responsible if the seller or landlord fails to comply.
But despite that tomorrow is the 25th anniversary of the federal regulations requiring disclosure, a surprising number of real estate transactional documents do not satisfy the command, including failure to include the warning language (i.e., a recent study extrapolates that as many as half a million contracts, last year alone, failed to comply).
This is not about removal or abatement of lead based paint; this is simply about providing the minimum disclosure required by federal law at the time of a real estate transaction.
Julius Caesar did not know that lead poisoning may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory; but we do. Lead poisoning may be the biggest environmental human health hazard in the U.S. today, and it is all preventable. So beyond matters of legal jeopardy, think justice, do the right thing and provide the required contract language and disclosures in real estate contracts.