Dust Settling

Early this past February, the New York City Council, by a vote of 44-5, overturned Mayor Michael Bloomberg’s veto of lead legislation that had been debated for over a decade. At the time, the sponsor of the legislation, Councilman Bill Perkins of Manhattan, said: “Today, we give the children in the row houses of our city the same health protection as those who live in the townhouses in Manhattan.” He probably would have lumped most co-ops and condos in with the townhouses, as being well-maintained environments where lead poisoning is unlikely. But a survey of managing agents and attorneys shows that the co-op and condo community is taking the issue of lead poisoning very seriously, with some taking the new law as a call to broaden inspection procedures for all apartments, owner-occupied and non-owner-occupied alike.

When it comes to immediate cost, co-op boards and condo associations in pre-1960 buildings have been spared the worst of it. Local Law 1 of 2004, which is also known as the New York City Childhood Lead Poisoning Prevention Act of 2003, does not require the inspection of single-family homes or of owner-occupied apartments in co-ops or condos, even if small children reside there.

Under Local Law 1, co-op boards and condo associations have the responsibility to inspect non-owner-occupied apartments – when a child, seven years old or younger, is living there – as well as common areas. Non-owner-occupied apartments include rentals, sublets, and the super’s apartment, if your building follows the common practice of allowing a live-in super to occupy his unit in exchange for labor.

Eva Talel, an attorney specializing in co-ops for 30 years at Stroock, Stroock & Levan, notes that common areas are redefined under the lead law: “The statute defines a common area as being ‘areas in the building that are not within a dwelling unit and are regularly used for access and egress to a dwelling unit,’” she says. “We are not talking about exteriors, boiler rooms, laundry rooms, equipment rooms, or terraces. There are a lot of common areas that aren’t covered.” Those that are include lobbies, hallways, and stairwells.

But while the board of directors has an obligation to inspect and “remediate” common areas, the city’s enforcement arm, the New York City Department of Housing Preservation and Development (HPD) does not have the authority to inspect and issue a violation for lead paint found in a common area. HPD’s authority is limited to inspecting a dwelling unit in which a young child lives. But if a building does not inspect and remediate the common areas – even if only one child seven or younger lives there – it can be exposed to a personal injury lawsuit if that child shows symptoms of lead poisoning.
The new law requires that a four-step process – similar to that used for window guards – be put in place. The steps are notification, inspection, remediation, and record-keeping. In the first step, a notice is sent to non-owner-occupied units, asking them to certify whether or not there are children seven years old or younger living in the apartment. A “yes” answer means that the board or association must conduct a lead paint inspection and then “remediate,” or remove the lead paint, hiring workers trained in safe lead removal practices. Areas over 100 square feet in size require EPA-trained workers to do the job. But that’s unlikely.

“We’re finding that 80 to 85 percent of apartments do not have lead paint,” Talel notes. “And it’s extremely uncommon on the flat part of a wall. It’s [almost always] on risers, windowsills, doors, and moldings. So usually what people are doing is, rather than stripping a molding that’s been painted over since 1920, they’re just ripping it out and replacing it.”

Managing agents like Don Levy, a vice president and account executive at Brown Harris Stevens, are advising boards that an inspection is required of any apartment whenever it changes hands, when a new lease is written, or an existing lease is transferred. “We’re advising that inspections be done on all transfers,” he says. “And now, since we do have to inspect for window guards, smoke detectors, and carbon monoxide, it should be one-stop shopping.”
Lynn Whiting, director of management at Argo, is also taking an aggressive approach, instituting training seminars for her managers on lead remediation and also moving forward with recommendations made by attorneys like Talel, to include a lead paint rider in every sublet agreement. The rider, she says, “confirms that the sublessor will be responsible for any costs associated with compliance [with the lead law’s provisions] on any contractor’s part.”

That means that, for example, should any inspection and remediation be necessary, the costs would be the sublessor’s responsibility rather than the co-op’s or condo’s. Importantly, the law allows a board or association to specifically shift responsibility for compliance with the lead paint law, by agreement, to the unit-owner. There’s little doubt that such provisions will soon become part of a new model for proprietary leases and will form suggested language for amendments to current ones.

But if a child in an owner-occupied apartment turns up with lead poisoning, then that apartment is subject to inspection by HPD, raising an issue that especially troubles attorney James Samson, a partner in Bangser, Klein, Roca & Blum, who says that many proprietary leases urgently need amending on the issue of hazardous materials, including lead.

“A child is under the supervision of his parents,” Samson notes, “and the child has been injured. Not many parents are willing to admit that maybe the problem was caused by a failure of supervision. Who was supervising the child while the child was gnawing on the windowsill?”

For this reason, Samson believes that buildings should do inspections, even of owner-occupied units. “I get nervous when I hear these glib statements, such as, ‘We’re off the hook now,’” he says. “The owner of a building – the board or association – has the obligation to know what’s going on within an apartment. Most boards are reluctant to be dictators, but when a child is hurt by a lead poisoning situation, parents naturally lash out at everyone they can possibly lash out at. It’s very easy to lash out at the big mean co-op, especially if they’re not an owner, which is why I’m more cautious about subtenants than other people. You check for window guards, for leaky faucets, and illegal washers and dryers. You should also check for peeling paint.”