Duty to disclose lead-based paint hazards
Homebuyers look to property managers and real estate professionals to disclose any hazards within a property. And yet, the lead-based paint pandemic continues here in California and across the nation — is the disclosure system broken?
In 1978, the federal government banned lead-based paint for residential use. Today, lead-based paint remains in some older houses, often under coats of new paint, but still present and dangerous. Lead is toxic and leads to a litany of health issues when children and other at-risk groups are exposed. Even low levels of exposure are dangerous, impacting a child’s learning ability for life.
It’s vital for real estate professionals to disclose lead-based paint hazards. Before a buyer makes an offer on a residence built prior to 1978, the seller’s listing agent needs to deliver a disclosure form providing notice of any known lead-based paint hazards and the possibility of such hazards. [See RPI Form 313]
Environmental hazards have a vast impact on the value of a property. Homebuyers and tenants need to be made aware of material facts before they purchase or rent a property. A material fact includes any information about a listed property which may affect the property’s value or alter a client’s decision to purchase, lease or sell the property. Thus, material facts need to be disclosed as soon as possible — before entering into negotiations.
Property managers and landlords also have a duty to disclose this information when negotiating a rental or lease agreement for residential property constructed before 1979. [See RPI Form 557]
However, the trend of the past two decades has seen professionals of insurance and real estate avoiding responsibility for lead poisoning cases, according to The New York Times.
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Lead poisoning cases increase during the pandemic
The collective inaction has created a silent epidemic. Lead poisoning is no longer at the volatile and substantial numbers experienced prior to the ban, but the issue was never dormant. In fact, the risk of lead poisoning increased during the pandemic, due to:
- landlords falling behind on rental inspections;
- households receiving increased exposure in the home; and
- lead testing for children dropping by half, according to The New York Times.
Any exposure to lead-based paint is a hazard, and nationally, at the end of 2021 there were half a million of children exposed to at least 3.5 micrograms per deciliter, the level used to identify children with the highest levels in their blood, according to the Centers for Disease Control (CDC).
California is no stranger to this hazard, but not enough testing or investigating has occurred to identify and eradicate all lead hazards. In fact, some California counties — Inyo, Lassen, and Humboldt — found children with an average higher percentage in their blood than children in Flint, Michigan, who suffered from their infamous water crisis, according to Kaiser Health News.
The percentage of children under six with a Blood Lead Level (BLL) of at least 4.5 micrograms per deciliter includes:
- 4.4% in Humboldt;
- 3.1% in Sacramento;
- 2.6% in Merced;
- 1.6% in San Francisco;
- 1.0% in San Diego;
- 1.0% in Los Angeles; and
- 0.5% in Riverside, according to the California Department of Public Health.
Lead poisoning is more common in metro areas which are home to higher shares of low-income households, who are often forced to live in older, unabated housing for lack of other options. Water pipes can be another source of lead poisoning, but the majority of cases are due to lead-based paint.
Lack of accountability sets lasting scars for lead paint victims
The absence of lead poisoning in insurance policies has set a precedent of a lack of accountability, taking away insurance payouts from children of lead-based paint hazards. In fact, the insurance and real estate industries have been able to avoid responsibility in major cases of lead exposure to children, although a landlord may still be held personally responsible for not disclosing hazards.
As the problem continues some four decades after the U.S. banned lead-based paint, the CDC recently set a lower threshold for identifying lead poisoning, ensuring more children qualify under the rubric, according to the CDC.
Still, insurance companies argue that being made to recognize lead hazards in their policies will be detrimental to the industry and drive up the cost of housing, which is already high.
This argument does not hold up in comparison to lead poisoning’s impact on children. The potential damage to the brain and nervous system is irreversible. Their growth may stunt, along with various behavioral and developmental problems. The monetary cost is billions of dollars a year funneled into medical treatment for children suffering from lead poisoning, according to the National Library of Medicine.
A permanent change needs to occur, and the best change coincides with protecting children from lead poisoning.
One potential solution was written into the seemingly doomed Build Back Better plan. This plan calls for funding in public housing agencies to improve housing quality and eradicate lead pipes and other lead hazards in housing. However, after meeting numerous setbacks, it’s unlikely to pass.
Thus, the responsibility to disclose lead-based paint hazards continues to lie with real estate professionals.
Eradicating lead-based paint hazards
There is an ethical and moral obligation to disclose and investigate lead-based paint hazards, but the only long-lasting solution is to eradicate these hazards completely.
It’s up to real estate professionals to investigate. Landlords ought to do the research and properly abate their properties. For starters, be aware of homes built before 1978, and have an inspection done by your local health department. If the inspection identifies lead in your units, hire a licensed professional for the abatement of lead hazards, accessible at the California Department of Health.
When searching for an inspector, it’s a good rule of thumb to obtain more than one bid for cost estimates. They can investigate and test your home with immediate results, or send away samples to test in a lab.
You can also check out grant programs for funding lead abatement through the U.S. Department of Housing and Urban Development, or look into local advocates and programs.
The priority is protecting clients. When listing a property for sale or lease, always use required disclosures.
View the Lead-Based Paint Disclosure and Hazards Disclosure Booklets for more information on disclosures involving lead-based hazards.