State and Federal lead paint disclosure laws have been on the books for over 20 years and in that time not a lot of changes were made. Yet REALTORS® are still presented with thorny lead paint questions.
Read the LAER Guide to Lead Paint
Here’s a rundown of frequent trouble areas:
1. Don’t have a buyer complete a blank lead paint form.
The law requires the seller to complete the Property Transfer Lead Paint Notification Certification form as part of their disclosure obligation to the buyer. This is the opportunity for the seller to tell the buyer what (if anything) they know about lead paint in the home. The buyer then acknowledges the information by initialing and signing the form. Signing a blank form and submitting it along with an offer does not meet the requirements in the law.
2. For what properties does the seller use the lead paint form?
The form should be used for properties built before 1978. If the seller is unsure about when the property was built, they should contact the local building department. Avoid using the form for homes built in 1978 or after as this can be confusing to the buyer.
3. What about the antique mantel?
Occasionally, in a post-1978 home, a seller will let you know that they are aware of the presence of lead paint in some part of the home. The common example is the antique mantle over the fireplace. In this case, the home is built after 1978 so the form itself is not required. However, the REALTOR® would be required to disclose this information to a buyer.
4. What if the property was totally rehabbed?
If a property was built before 1978, but had a recently completed rehab, a lead paint form should still be used. In the 1998 case, Piers v. Wheeler, the court found a seller and real estate broker liable for stating that a home was “free of lead” after extensive renovations on the house were done, which included the taking down of walls and ceilings, the removal of partitions, the installation of new plumbing and heating systems, the stripping and refurbishing of wood work, and the renovation of the fireplace. Even after all this renovation, lead was found and a child was lead poisoned.
5. I received two offers on my listing. One asks for a lead inspection and one is waving the inspection.
Federal law is clear that the seller is required to provide a potential purchaser with an opportunity to conduct a lead inspection or risk assessment before the purchaser becomes obligated under an offer or contract to purchase. A party selling housing, therefore, may not offer or advertise property as being available only if purchasers will not take advantage of the opportunity to conduct an inspection or risk assessment. A purchaser is not required to conduct an inspection or risk assessment and may waive this opportunity in the course of negotiations with the seller. The purchaser is entitled to a 10-day period to arrange for and complete the inspection or risk assessment, but the parties may mutually agree to a different period of time. If the purchaser chooses to have an inspection or risk assessment, the seller is not required to pay for the cost of the inspection or risk assessment. Typically, the purchaser will pay, but this point is negotiable.