71 CBJ 233. WHO TAKES THE LEAD IN LEAD ABATEMENT: LIABILITY UNDER STATE AND FEDERAL REGULATION OF LEAD PAINT.

• Author: By ELLEN L. SOSTMAN(fn*)

Connecticut Bar Journal

Volume 71.

71 CBJ 233.

WHO TAKES THE LEAD IN LEAD ABATEMENT: LIABILITY UNDER STATE AND FEDERAL REGULATION OF LEAD PAINT

233WHO TAKES THE LEAD IN LEAD ABATEMENT: LIABILITY UNDER STATE AND FEDERAL REGULATION OF LEAD PAINTBy ELLEN L. SOSTMAN(fn*)1. THE HISTORY

The recognition of the hazards posed to human health from exposure to lead in the environment is not of recent origin. There is a letter, dated July 31, 1786, among the published papers of Benjamin Franklin, detailing his experiences and observations of the effects of exposure to lead type, which at that time was set by hand. Franklin also described a visit paid in 1767 to a hospital in Paris which specialized in the treatment of a certain type of stomach disorder: all of the patients treated there were engaged in trades that used lead in large quantities. He further noted that complaints that New England rum caused this same disorder had led the Massachusetts le slature to ban the use of lead parts in stills during his own boyhood.

Today, the medical profession clearly recognizes that high levels of lead in blood and body tissues damage the brain and central nervous system, and can cause convulsions and death. Blood lead levels exceeding CDC guidelines of ten micrograms per deciliter (10 ug/dl) in children under the age of six are believed to be associated with learning disabilities, impairment of normal growth, and visual and hearing impairment.(fn1) Because the brains and nervous systems of children under the age of six are still developing, they are deemed particularly vulnerable to the hazards associated with exposure to high levels of lead, and particularly susceptible to permanent, irreversible damage. Thus, much of the government effort to reduce levels of lead in the environment has been particularly aimed at children's environments and at preventing lead poisoning in children and pregnant women.

Lead enters the environment from many sources, but three, in particular, were deemed to cause the greatest risk of

234exposure for the largest number of people: lead in the soldering used in food cans, leaded gasoline, and lead-based paint. The first two were dealt with by government regulation a number of years ago.(fn2) Only lead-based paint remained as a common hazard. In response to the concern over this remaining hazard, after much publicity and the usual lengthy process, the new federal lead paint regulations have been adopted in final form. They are the joint product of HUD and EPA and were adopted pursuant to the mandate contained in the Residential Lead-Based Paint Hazard Reduction Act of 1992.(fn3) They became effective on September 6, 1996 for owners of more than four residential dwellings and on December 6, 1996 for owners of from one to four residential dwellings. The citations for the regulations are 24 CFR Part 35 (HUD) and 40 CFR Part 745 (EPA).

At the state level, Connecticut began regulating lead paint in residential dwellings in 1971 with the enactment of Conn. Gen. Stat. § 47-24c, which became Conn. Gen. Stat. § 47a-8. It provided that the presence of lead paint in rental housing rendered the property unfit, and led to the court interpretation of the statute as creating negligence per se on the part of the landlord.(fn4) The statute was eventually repealed in 1994.

The passage of Section 47a-8 was followed by the passage of Conn. Gen. Stat. § 47a-54f, which, while not specifically addressing the lead issue, prohibited cracked, chipped, flaking or peeling paint that constituted a health hazard. This statute also dealt with rental housing. Further, in 1987, the legislature enacted Conn. Gen. Stat. § 19a-Illc as part of a lead

235poisoning prevention program(fn5) that involved screening and treatment of individuals with elevated lead levels in their blood as well as abatement of the causes of such lead poisoning. Section 19a-11lc applies to "any dwelling," not just rental housing and, presumably, would give rise to the ability of the state Department of Public Health and Addiction Services to order any homeowner with a child under the age of six who is found to have elevated blood levels of lead to abate or manage lead paint or plaster found in the dwelling. Regulations were adopted pursuant to the Connecticut statutes effective September 29, 1992.(fn6)

Finally, P.A. 95-311 put in place a mandate to sellers of residential properties (the "Residential Property Condition Disclosure Report") that they disclose to potential buyers a number of conditions that may exist, including whether and where lead paint and lead plumbing exist on the premises to be sold, if the sellers know. The Disclosure Report form also contains a statement, in bold letters, that "Connecticut law requires the owner of any dwelling in which children under the age of six reside to abate or manage materials containing toxic levels of lead." There is no requirement in P.A. 95-311 that the seller test the property for the presence of lead.

What potential liabilities exist for owners of real property under the state and federal lead abatement regulations? What is the interplay of these two sets of regulations? Which ones control? The purpose of this article is to sort through the requirements imposed by both sets of regulations so that home owners and landlords alike might be better advised as to the obligations imposed on them.

2. STATE vs. FEDERAL REGULATION - WHO CONTROLS?

   236The federal regulations were adopted with the full knowledge that many states already have regulatory schemes in place for lead hazards.(fn7) They contain no preemption provisions whereby the federal regulations would override the state statutes or regulations. It was contemplated that the federal and state schemes would complement one another and that the federal regulations would not relieve a property owner of the duty to comply with the state laws.(fn8) In fact, in many important respects, the regulations differ and thus create two separate sets of obligations.

3. WHAT IS REQUIRED AND WHEN?

   The brief answer, under both the state and federal regulations, is DISCLOSURE, and under the state regulations alone, in some limited cases, ABATEMENT of the lead hazard.

   1. Federal Regulations.

      1. What Is Disclosed: General Provisions

         (Each of the italicized terms below has a defined meaning in the regulations set forth below.)

         The federal regulations(fn9) require that, for all sales and leases of "target housing," on or after the effective dates set forth above, the owner disclose:

         1. the known presence of lead-based paint and/or lead based paint hazards,(fn10) with an explanation of same OR the fact that the seller does not know of the presence of same; and

         2. copies of any reports or records available to the owner pertaining to the presence or absence of lead-based paint and/or lead-based paint hazards OR a statement that the seller has no such records or reports.

            The regulations contain sample disclosure formats for sellers and lessors.(fn11)

            Disclosure must be made before the purchaser or lessee becomes obligated under the contract of purchase or the lease.(fn12)

            2372. Definitions: What is covered and what is exempt.

         1. What is a "sale or lease"? This is best explained by setting out the exemptions(fn13) from the regulation:

            1) Foreclosure sales: Neither the committee conducting a foreclosure sale nor the foreclosing party is required to provide the disclosures. However, the purchaser at the foreclosure auction will be required to give the disclosures on resale, even if that purchaser was the original foreclosing party. This exemption does not deal with strict foreclosures, which occur regularly in only two states, Connecticut and Vermont.

            2) Leases of 100 days or less where no renewals or extensions can occur. This exemption was designed for leases of vacation properties, as well as hotel or motel accommodations, in which the term of the lease is expressly limited to 100 days or less.

            3) Renewals of existing leases where the required disclosure was made at the time the lease was entered into and the renewal does not entail a significant change in the terms of the lease. If it does, disclosure must be made of any new information obtained since the original lease was entered into.

            4) Sales of mortgages on residential property.

            One of the questions that will be most frequently asked by owners of rental property is whether the use of the term "lease" implies that there must be a written rental agreement for the disclosures to be required. That is not the case. While the rule, as originally proposed, excluded "informal" oral leases, HUD and EPA quickly realized, through the extensive comments received, that the types of properties most likely affected by lead paint were also most likely to be rented on a month-to-month basis, and that portion of the rule was withdrawn. Oral month-to-month tenancies are now clearly cov

            238ered by the regulations unless they are expressly limited by the parties, in advance, to 100 days or less. From the regulation, it appears as though that limitation must be in writing and in the form of an agreement between landlord and tenant.(fn14)

            The question that should be anticipated from owners of residential property is whether or not disclosures are required for no-consideration transfers. The answer is clearly "no," since "seller" is defined as one who transfers "in return for consideration" and "purchaser" is defined as one who "enters into an agreement to purchase."(fn15) Thus, gifts and inheritance of real...