Title X deadline approaching: time for lead abatement nears.

The deadline is approaching. Title X, a Federal law, is set to be promulgated by the EPA. It requires home sellers, landlords and agents to disclose the presence of any known lead-based paint hazards in housing built prior to 1978, before every sale or rental.

A property owner's/agent's liability will increase once the law is promulgated by the EPA in October 1994. By October 1995, the law will be strictly enforceable. "After that date, if your property is found to have a lead hazard, you may not be able to sell the property unless costly lead removal and abatement is performed," says Kevin Cooke, president of Environmental Compliance Inspections, Inc. (ECI), based in Melville, New York. ECI is a member of The Cooke Organization, which has been providing inspection and preservation services to the real estate and finance communities for nearly two decades.

Cooke reports that "Right now owners of property are liable if an inhabitant or visitor is lead poisoned on their premises - and some recent settlements are in the millions."

Another major concern is that "a property may be forced into foreclosure when a homeowner discovers, through a required lead hazard evaluation, that the home cannot be sold without an expensive abatement," says Cooke.

The law also requires that a purchaser or lessee be given a 10-day period (unless the parties mutually agree upon a different period of time) to conduct their own risk assessment or inspection of the property for the presence of lead-based paint hazards. If a lead hazard is found - the buyer can walk away from the contract.

After October 1995, failure to disclose any known lead hazards to a potential buyer violates section 409 of the Toxic Substances Control Act. The penalty for each violation is up to $10,000. In addition, any person who knowingly violates Title X disclosure provisions is liable to the purchaser or lessee for an amount equal to three times the amount of damages incurred by each individual. And it is common law fraud if you deny there is a lead hazard when you know it exists.

Cooke goes on to inform us that many states, including New York, New Jersey, California and Massachusetts, have mandatory lead-testing programs for children. These programs include investigative follow-up to the child's home, places they visit, and schools.

"Due to renovations, remodeling, gravity, and normal wear and tear, paint can chip or crack." Cooke continues, "There is no correlation between household income and incidence of lead poisoning. It can affect any child - anywhere."

Lead is a silent hazard. 57 million homes built prior to 1978 are estimated to have lead paint - nearly 75 percent of the national total. Of these 57 million homes, about 17 percent or nearly 10 million units are occupied by families with children under the age of 7. Lead is usually found in paint, but it can also be in water, soil, dust, air, pipes and solder. Lead poisoning in children may produce permanent neurological damage including learning disabilities, reduced intelligence quotient, behavioral problems, and impaired memory. It is a disease caused by swallowing or inhaling lead chips or dust.

Environmental Compliance Inspections, Inc. (ECI) has developed a complete lead hazard compliance and evaluation program to help protect you from lead hazard liability and assist you in complying with the new regulation. The services ECI provides includes on-site and laboratory testing and evaluation reports for lead in paint, water, air, soil and pipes/solder - and they offer their services on a nationwide basis. They can provide you with lead testing methods that are validated, certified and defensible in court. If necessary, they will testify in court as to the validity of their testing and as an expert witness.

This is extremely important as damages for lead poisoning cases have the potential to be large where there is proof of permanent damage. If the courts decide that the lead poisoning is a direct result of the owner's/agent's negligence, the potential award can be huge. Even though the law becomes strictly enforceable in 1995, it is important that we realize that what we do today may increase our liabilities under the new law and expose us to future legal actions. If you are an agent, property management company, owner, etc. - now is the time to put a lead hazard evaluation program in place. And if you are a private homeowner, now is the time to have your property professionally tested and evaluated.