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New York landlords shoulder responsibility for lead paint.

Federal regulations mandating owners of housing built before 1978 to provide information to prospective buyers and renters about lead-based paint within their buildings has raised great awareness about this potential health risk.

These regulations, which serve as a complement to existing state and local codes, mandate sellers and lessors provide purchasers and lessees with any available records or reports pertaining to the presence of lead-based paint and associated hazards. The federal directives state that sellers must provide purchasers with a 10-day opportunity to conduct a risk assessment or inspection. While this 10-day proviso of the federal law does not apply to lessors of rental housing, landlords in New York State have certain added obligations concerning the existence or possibility of lead-based paint within their buildings.

In New York, where a preponderance of city housing is rented, the responsibility and abatement for not only lead-based paint, but any chipped or peeling paint within a building where a child age six or younger resides rests squarely on the shoulders of landlords. In fact, the New York state and city government Courts have determined that today's landlords should take financial responsibility for past generations of improper lead use in New York. Moreover, a local law adopted by the New York City Council in 1982 makes the presumption that that all peeling or chipped paint in dwellings built prior to 1960 is lead based.

Since lead paint liability legislation continues to evolve in New York City, a little background on its history and current status is in order.

New York City first banned the use of lead-based paint for interior building surfaces in 1960.

That health code legislation resulted in remediation of existing lead paint--an enormous undertaking seeing that 55% of the City's housing units were built prior to 1950, with many of those units situated in low-income neighborhoods. The challenge facing the City was to identify the scope of the health risk while developing an administrative and enforcement system to oversee the abatement of lead paint.

The deteriorating conditions of many buildings and the development of scientific and medical research on the effects of lead paint exposure led the New York City Council in 1982 to direct owners of multiple dwelling units to remove or cover lead-based paint in apartments inhabited by children age six or younger. As such, this local law represented the City's attempt to define obligations for the abatement of existing interior lead paint conditions.

This statute creates a presumption that peeling paint in any multiple dwelling erected prior to January 1, 1960 where a child age six or under resided constituted lead-based paint for abatement purposes, regardless of whether the paint in question is lead-based or not.

As it stands today, a landlord may be held liable for injury caused by defective or dangerous conditions within leased premises if the landlord is under a statutory or contractual duty to maintain the premises in good repair.

Local Law 1 further states that for a landlord to be held liable for injuries resulting by a lead hazard, he/she must have "actual" or "constructive" notice (constructive notice being inference that a person received notice even though actual notice was not personally delivered) of both the lead condition and the residency of children under age six.

What it boils down to is fairly straightforward. As written, current New York City laws in themselves provide "constructive" notice of a dangerous lead paint condition based upon proof of chipping or peeling paint and a landlord's awareness that a child age six or younger lives in his/ her building.

While a landlord can demonstrate that the paint in question is not lead based and therefore not inherently dangerous (as is certainly the case in some situations), the New York City Courts and Legislature have in effect enacted public policies to redirect the responsibility of abating the lead paint hazard squarely on the shoulders of landlords.

It is clear that the lead paint laws are complex and that anyone with an interest or potential interest in any action should consult with legal counsel.

This article is intended as a guideline, and should not be relied upon as legal binding advice.

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Title Annotation:sellers should inform about lead based paints with the building, regulation
Author:Grodberg, Mark
Publication:Real Estate Weekly
Geographic Code:1USA
Date:Aug 9, 2006
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