Lead-Based Paint Inspections Just Got Tougher

The city has enacted stricter regulations on detecting lead-based paint inside apartments – yet another item for the to-do lists of some co-op and condo boards and their management companies.

Local Law 31, which went into effect on Aug. 9, requires an X-ray fluorescence (XRF) analyzer inspection to be performed within the next five years in certain apartments. The XRF test must be performed by an inspector certified by the Environmental Protection Agency who has no relation to either the board or the company that does the building’s lead-remediation work.

The original 2004 law was intended primarily for rental buildings and had specific language that exempted most co-ops and condominiums. However, there are situations where a co-op or condo must comply: if a unit is being sublet by a shareholder or unit-owner, or if an investor-owned or sponsor-owned unit is being rented. Any of these circumstances triggers the XRF inspection requirement.

Additionally, if a child under the age of 6 lives in the sublet or rented unit, the owner has one year to perform the XRF inspection. If a unit in a co-op or condo is covered under the law, the board becomes responsible for conducting an XRF test in the common areas, such as the lobby. What this means for a co-op or condo board is that any unit falling under the purview of Local Law 31 is now another opportunity for the building to receive violations and fines. But who pays? 

“Normally what happens is the Department of Buildings would send the violation to the property owner, which is the co-op,” says Geoffrey Mazel, a partner at the law firm Hankin & Mazel. “And then the co-op, pursuant to the terms of the proprietary lease, would hold the shareholder responsible. As far as the city is concerned, it's the co-op (that is responsible); as far as ultimate liability and responsibilities, it would be the shareholder of the unit.”

Dennis DePaola, executive vice president and director of compliance at the property management company Orsid New York, agrees. “The city would put the violation on the building,” he says, “and then it would be incumbent upon us to go and charge it back and have the remediation done and paid for by the unit-owner or shareholder. We're sort of in the middle, between the city and the landlord.”

Josh Sarett is founder and chief executive of ALC Environmental, an environmental consulting, testing and remediation firm. Under the original law, he says, problems arose when apartments turned over: “People were misinterpreting the regulation that if a child under 6 didn't move into the apartment, they didn't need to do the required (inspection) work. That's not the case. It doesn't matter who moves into the apartment. They still must do the turnover work, and they still must do all the XRF testing.”

One more item on many boards’ to-do-list.