Lead-Based Paint: Notice requirements imposed by Federal law

Kevin Murphy

In 1978 the federal government banned consumer uses of lead-based paint, thus effectively stopping the use of lead-based paint in all housing across the country. Prior to that date, lead-based paint was widely used including in housing and homes constructed prior to that date.  If properly managed lead-based paint poses little, if any risk to human health. If allowed to deteriorate (peeling, chipping, chalking, cracking, damaged, or damp), lead-based paint is a potential hazard. It can cause serious health problems, especially to children and pregnant women. 

Homebuyers 

    Federal law requires that before being obligated under a contract to buy housing built prior to 1978, buyers must receive the following from the seller:  

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your FamilyFromLead In Your Home.  
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building.
  • For multi-unit buildings, 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, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the seller has complied with all notification requirements.
  • A 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity. If you have a concern about possible lead-based paint, you may secure a lead inspection from a certified inspector before buying. 

Renters 

    Federal law requires that before signing a lease for housing built before 1978, renters must receive the following from your landlord:  

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your FamilyFromLead In Your Home. 
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in • For multi-unit buildings, 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, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the landlord has complied with all notification requirements.

Property Managers and Landlords 

    As owners, landlords, agents, and managers of rental property, you play an important role in protecting the health of your tenants and their children. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective renter is obligated under lease to rent from you. 

Landlords must give prospective tenants of buildings built before 1978: 

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your FamilyFromLead In Your Home.  
  • Any known information concerning lead-based paint or lead-based paint hazards pertaining to the building. 
  • For multi-unit buildings 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. 
  • A lead disclosure attachment to the lease, or language inserted in the lease, that includes a “Lead Warning Statement” and confirms that you have complied with all notification requirements. 

Real Estate Agents and Home Sellers 

    As real estate agents and home sellers, you play an important role in protecting the health of families purchasing and moving into your home. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective buyer is obligated under a contract to purchase your home. 

Real estate agents must:  

  • Inform the seller of his or her obligations under the Real Estate Notification and Disclosure Rule. In addition, the agent is responsible if the seller or lessor fails to comply; unless the failure involves specific lead-based paint or lead-based paint hazard information that the seller or lessor did not disclose to the agent. Read the regulations that includes these requirements. 
  • Provide, as part of the contract process, an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your FamilyFromLead In Your Home. Attach to contract, or insert language in the contract, a “Lead Warning Statement” and confirmation that you have complied with all notification requirements. 
  • Provide a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity. 
  • A copy of the pamphlet Protect Your FamilyFromLead In Your Home is available at: 

https://www.epa.gov/sites/production/files/2017-06/documents/pyf_color_landscape_format_2017_508.pdf 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Watertown and Syracuse. He concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Contact Mr. Murphy by emailing KMurphy@WladisLawFirm.com.

Breaking Biases

AMANDA COLTON

It can often be difficult for individuals with criminal convictions to find employment or housing, even years after serving their sentence. Even with protections in place, some employers and landlords can’t fight an unconscious bias towards these individuals. Local attorney Matthew Porter has begun using a new law passed in October of last year to protect his clients from such bias.

    New York State does not have any laws in place to erase, or expunge, criminal records. Instead, New York offers a processes for sealing certain criminal records. For an individual experiencing additional hardship due to an old conviction, applying to have their records sealed may be an attractive option.

     “When a person’s record is sealed it is not erased, but any related fingerprints, booking photos, and DNA samples may be returned to the individual or destroyed, and records of their crime will no longer be available to the public,” explained Mr. Porter.

    Under New York’s Executive Law Section 296(16), employers are prohibited from inquiring about or taking any discriminatory action based on an individual’s sealed record. This means that if a record is sealed it cannot be considered in an application for employment.

    “However,” said Mr. Porter, “this law does not apply to law enforcement agencies, nor to those charged with federal licensing for firearms or other deadly weapons.”

    The two processes for having criminal records sealed are outlined in New York’s Criminal Procedure Law Sections 160.58 and 160.59. Section 160.59, effective October 2017, has created a new opportunity for individuals who have not been convicted of a crime in the past ten years to apply to have their criminal convictions sealed.

    Due to the individual nature of applying this new law, Mr. Porter is unable to state that any conviction will be automatically sealed. However, he was able to provide certain requirements a person must meet in order to apply to have a conviction sealed under the new law, primarily including but not limited to:

  • The individual may have up to two convictions, including only one felony conviction;
  • To be considered an “eligible offense” the conviction(s) must not have been for any of the following:

    ◦ sex offenses,

    ◦ other crimes requiring sex offender registration,

    ◦ Class A felonies (including but not limited to the following non-violent felonies: aggravated enterprise corruption, criminal possession or sale of a controlled substance in the first or second degree, operating as a major trafficker or conspiracy in the first degree)

    ◦ violent felonies, and

    ◦ attempts to commit any ineligible offenses under the categories listed above;

  • It must have been at least ten years since either

    ◦ the date the sentence was imposed, or

    ◦ the date of release from the individual’s last period of incarceration; and

  • The individual must not have been convicted of any new crimes during the ten-year waiting period.

    Once the application is filed, the local district attorney’s office has forty-five (45) days to notify the court whether they will oppose sealing the record. Then a judge must consider a number of factors in determining whether to grant a sealing application, including:

  • the amount of time since the individual’s last conviction,
  • the circumstances of the offense the individual seeks to have sealed,
  • any other convictions,
  • the individual’s character,
  • statements by any victims of the offense,
  • the impact sealing will have on the individual’s reintegration into society, and
  • the impact sealing will have on the public.

    Any experienced criminal attorney can help individuals determine whether they are eligible for sealing and to guide them through the sealing application process. The attorneys at Conboy, McKay, Bachman & Kendall, LLP, with offices in Jefferson County and St. Lawrence County, understand this new law and have begun aiding clients in having their criminal records sealed.

AMANDA COLTON is from Ogdensburg. In 2016, Amanda received her J.D. from Hofstra University and she is currently pending admission to the bar. Once admitted, Amanda will be practicing in the areas of domestic relations and criminal law.