What Do Apartment Buyers Need to Know About Lead Paint?

An Edited Excerpt from the 2022 NYC Apartment Management Checklist

With apartment sales on the uptick, boards and sellers will want to make sure that new purchasers (and those who come into your building to sublet) are informed about the dangers of lead paint. Lead paint was commonly used in older buildings, and because it is especially harmful for children, the federal government requires disclosure of its dangers, as well as specific lead-paint hazards in your building.

For apartment purchasers, the lead-paint disclosure documents are often completed at the sales closing. Lawyers will make sure these documents are signed; if a broker has been involved in the sale, he or she will also bring a signed disclosure document. When an apartment is being sublet, a co-op or condo’s property management company will usually confirm that the disclosure documents have been signed. However, regardless of the transition scenario, the final responsibility falls to the board of directors to make sure these rules are complied with. 

Here is a simplified and edited version of what the law requires, how to comply and the penalties if owners don’t follow the rules. A complete set of rules, regulations, forms and compliance steps can be found in the 2022 NYC Apartment Management Checklist book, published by The Habitat Group.

What Is the Law

The federal Residential Lead-Based Paint Hazard Reduction Act of 1992, better known as Title X, and the federal rules enacted to implement Title X require owners (including co-ops and condos) of buildings built before 1978 or completely rehabilitated after Dec. 31, 1977, to give any apartment applicant certain documents that disclose the dangers of lead paint in general, as well as specific lead-paint hazards in the building, whatever the source of those hazards.

If your building has been deemed lead-paint free by a certified Environmental Protection Agency (EPA) inspector or an EPA-authorized state environmental enforcement agency, it is exempt from lead-paint disclosure.

Compliance Steps

When an apartment is sold or sublet in a co-op or condo, there are documents to give to the new resident. The documents must be given to the buyer or subletter before they are “obligated under contract” to buy or lease the apartment. 

These are the documents:

Lead-paint pamphlet. This is the federal government pamphlet entitled “Protect Your Family from Lead in Your Home.” Although the city’s Department of Health and Mental Hygiene (DOHMH) publishes its own lead-paint pamphlet, that pamphlet does not meet the federal requirements and cannot be used instead of the federal pamphlet. Once the owner gives an applicant or current tenant this pamphlet, the owner does not have to give the pamphlet to that person again.

Disclosure form. Owners must disclose what they know about lead paint in their buildings on this form and then give the form to applicants and current subletters who are renewing to read and sign. The Department of Housing and Urban Development (HUD) and the Environmental Protection Agency (EPA) have created a sample form owners can use.

Reports on lead-paint hazards. Along with the disclosure form, owners must give copies of any lead-paint inspection reports they have about their buildings to applicants or current tenants.

When a revised form must be given. If there is a lead-based paint test done at the building, the results of that test is considered new information, whether or not it shows the presence of lead-based paint. For apartment owners who are subletting their apartments, a revised form must be given to tenants at renewal time.

Two of the most common lead-paint test results owners must disclose are:

NYC Department of Health and Mental Hygiene (DOHMH) lead-paint tests. When the blood level of any child under 18 living in the apartment is at least 20 milligrams per deciliter, the DOHMH will test that apartment for lead-based paint. If the result of DOHMH tests shows 1.0 milligram or more of lead per square centimeter, the DOHMH will issue a lead-based paint violation.

Dust clearance tests. Owners must get a dust clearance test after correcting DOHMH lead-based paint violations or certain types of Department of Housing Preservation and Development (HPD) lead-paint violations — for example, those involving certain interior surfaces, such as wood trim.

If lead is found, who needs to be informed. If a test finds lead-based paint in an individual apartment, owners must send revised forms only to the resident of that apartment. However, if a test finds lead-based paint in a common area of the building, all residents need to be informed using a HUD/EPA disclosure form. This form has a government-mandated warning statement about lead paint, a disclosure checklist for owners to complete, and spaces for signatures.

When your building refinances. Many banks now require a Phase 3 environmental test before providing new financing. This environmental test usually includes lead-paint testing.

Penalty for Failure to Comply

Owners who fail to comply with the lead-paint disclosure rules can get hit with civil and criminal fines of up to $11,000 for each violation. Because the rules apply to owners, managers and their agents, they must all make sure that residents get the disclosures. If they do not, they may all be held liable for breaking the law. Residents who win lawsuits against owners for harm caused by lead-paint can collect triple their actual damages if the owner has knowingly violated the rules.

Required Forms 

Owners must give:

• A federal government pamphlet, “Protect Your Family from Lead in Your Home” (available from the National Lead Information Center).
• A lead-paint disclosure form (available in English and Spanish) Both the pamphlet and lead-paint disclosure form can be downloaded from the EPA’s website: www.epa.gov/lead

The current edition of the federal government pamphlet, updated to reflect EPA’s 2019 rule revisions concerning lead dust, is dated March 2021, and can be found at: www.epa.gov/lead/protect-your-family-lead-your-home-english 

The lead-paint disclosure form also can be found on EPA’s website. Check out the EPA Lead Program website: www.epa.gov/lead

• For the English version: www.epa.gov/sites/production/files/documents/lesr_eng.pdf

For the Spanish version: www.epa.gov/sites/production/files/documents/spanless.pdf