Lead Paint

TO:

FROM: Kevin E. McCarthy, Principal Analyst

RE: Lead Paint

You asked for an analysis of the law on the occupancy or sale of multifamily housing with regard to lead paint.

The state public health code and landlord-tenant law cover the occupancy of multifamily housing with lead paint. Federal law requires the inspection for and abatement of lead paint in federally-assisted units.

The public health code requires that defective surfaces with lead paint in housing units with children under age six be abated, i.e. the surface must be removed, replaced, or encapsulated. Local health directors must inspect buildings where children with elevated lead levels live. If lead is found, the owner must prepare a lead abatement plan for the entire building, as well as a management plan for any intact surfaces with lead paint.

Landlord-tenant law requires building owners to comply with state and local building and health codes. It also requires them to keep their units fit and habitable. The law provides various remedies to tenants whose landlords fail to comply with these requirements, including stopping rent payments. In addition, some courts have held landlords strictly liable for damages due to lead poisoning. The recent repeal of one section of landlord-tenant law may affect a tenant's remedies and the owner's liability.

Federal law requires owners of any building built before 1978 to inform potential buyers and lessees of the possibility that the building may have lead paint in it them and of the hazards of such paint. The owners must also inform the buyer of the results of any lead testing. The law also requires lead testing and abatement before federal mortgage insurance can be issued for a multi-family building.

The public health code (Conn. Agencies Reg. § 19a-111-1 et seq.) requires abatement of all defective lead-based surfaces in a dwelling unit in which a child under age six resides. (An example of such a surface is a wall with chipped or peeling lead paint.) In addition, defective exterior surfaces and all defective surfaces in common areas such as hallways containing toxic levels of lead must be abated. The abatement can be accomplished by removal, replacement, or encapsulation of the hazardous surface. The building owner cannot avoid these responsibilities by evicting the affected tenants. The regulations specify abatement procedures in detail. (PA 93-321 alternatively allows management of the materials, consistent with the regulations.)

Local health directors must inspect buildings where a child with an elevated blood lead level (EBLL) resides. The inspection of the unit where the child resides must begin within five days of the director receiving notice from the child's physician, a hospital or clinic, or the state lead poisoning prevention program. Inspection of the other units in the building must begin within 30 days of this notice.

If the inspector finds a toxic level of lead in the building, he must notify the building owner, the local health director, and the Department of Public Health and Addiction Services. The owner must place a notice in every unit with toxic levels of lead paint warning of the hazard.

The owner must submit a lead abatement plan to the local health director for units where children with EBLL live within 15 days of receiving the inspection results. Abatement in such units must include all chewable surfaces (such as window sills and stair rails) and moving parts of windows, whether or not they are defective. The director has ten days to review the plan and the owner must start abatement within 45 days of receiving the results. The owner must submit an abatement plan for other units with children within 20 days of receiving the test results and must start abatement within 90 days of receiving the results. If any unit requires abatement, the soil around the building must be tested and removed if it is hazardous.

The owner must also have a lead management plan written within 60 days of receiving inspection results. The plan must identify the location of intact lead-based surfaces and describe how they will be monitored and abated when they become defective. Renovation disturbing any surface greater than 15 square feet that has toxic levels of lead must be done in accordance with the regulations.

CGS § 47a-7 imposes various responsibilities on landlords. These include complying with state and local building and health codes and keeping the premises fit and habitable. CGS § 47a-8, which was repealed by PA 94-220, made the presence of lead paint which (1) violated federal standards or (2) was damaged and constituted a health hazard a per se violation of the latter requirement. This meant that if there was nonconforming or damaged paint, the dwelling unit was automatically uninhabitable.

Based on these laws before the repeal of CGS § 47a-8, the state Court of Appeals ruled that a tenant in a unit with unsafe paint could refuse to pay rent under CGS § 47a-4a. The court also ruled that the law does not require the tenant to give the owner notice before stopping rent payments and that it does not give the owner a grace period to cure the problem. OLR memo 93-R-1223 (enclosed) provides additional information on this case, Housing Authority v. Olesen (31 Conn. App. 359 (1993)). OLR memo 93-R-1323 (enclosed) describes other remedies for a tenant, which include paying the rent into Housing Court or breaking the lease.

State courts have issued conflicting decisions as to the liability of owners who rent units with unsafe lead paint. In Hardy v. Griffin 41 Conn. Sup. 283 (Super. Court 1990) the Superior Court, Judicial District of New Haven awarded a tenant approximately $1 million from her landlord for damages suffered by her son as a result of lead poisoning. The court ruled that because the landlord rented a unit with hazardous lead paint, he was strictly liable for the damages produced by the paint. This means that the owner was held liable for damages without the tenant having to show that the landlord was a fault. The court based this ruling on the statutes described above, and a local ordinance which requires landlords to keep their buildings free of lead paint. The court also ruled that renting a unit with unsafe lead paint was a violation of the Connecticut Unfair Trade Practices Act, subjecting the owner to a fine, among other penalties. OLR memo 90-R-0776 (enclosed) describes this case in greater detail. In Torres v. Melody Superior Court, Judicial District of New London at Norwich, No. CVV 0098765, 1992, the court made the same ruling based solely on state law.

On the other hand, in Copeland v. People Saving's Bank, 8 Conn. L. Rptr. (1993) the court chose not to follow Hardy. It rejected the notion that the law makes owners strictly liable for lead paint damages, arguing that this interpretation was contrary to state policy as contained in the health code regulations described above. It held that the owner is only liable if he has knowledge of the defective condition and is not liable if he repairs the defective surface within a reasonable time after learning of the condition.

It is not clear how the repeal of CGS § 47a-8 will affect a tenant's remedies or an owner's liability when an apartment contains unsafe lead paint. Previously, a tenant just had to show that the paint in the apartment violated federal lead standards or was a health hazard in order to stop paying rent or taking other steps authorized by the law. It appears that with the repeal, a tenant must show that the apartment violates state or local building or health codes or that it is not fit or habitable.

The courts that ruled that owners are strictly liable for damages arising from lead paint relied on CGS § 47a-8 to reach this conclusion. As a result of the repeal of this section, it is less likely that the courts issue such rulings in the future.

Federal regulations (24 CFR § 35) require lead inspections in residential buildings built before 1978 that receive assistance from the Department of Housing and Urban Development. The most common type of assistance subject to this requirement is mortgage insurance from the Federal Housing Administration (FHA). Defective surfaces in such housing must be removed or covered. The regulations specify treatment methods, which are similar to those found in the state public health code.

Federal law (42 U.S.C. § 4852d) requires disclosure of lead paint hazards when target housing is offered for sale or lease. Target housing is single or multifamily housing built before 1978, except for elderly housing and efficiency apartments. The seller or lessor must:

1. give the buyer or lessee a lead hazard information pamphlet prepared by the Environmental Protection Agency,

2. disclose to the buyer or lessee any known lead paint hazards in the housing and the results of any lead tests for the housing, and

3. give the buyer ten days (unless the parties agree on a different period) to have the housing inspected for lead.

Each contract for the sale of targeted housing must contain a Lead Warning Statement, whose content is specified in the law. The buyer must sign a statement that he has:

1. read the statement and understands its contents,

2. received the lead information pamphlet, and

3. been given the required time to conduct a lead test.

Real estate agents must ensure that sellers comply with these requirements. Knowing violation of these provisions is subject to a civil penalty. The violator is also subject treble damages to a buyer or lessee harmed by the violation.

In addition to the above provisions, federal law (24 CFR § 200.820) requires lead testing and abatement for multi-family housing that is the subject of federal mortgage insurance. Buildings built before 1978 must be inspected by an architect for defective surfaces before the mortgage insurance can be issued. If any defective surfaces are found they must be treated in accordance with federal regulations.

In addition, chewable surfaces in a random sample of units must be tested for lead. If there are fewer than 20 units in the project six must be tested; for larger projects ten units must be tested. The testing must include common areas used by children under age seven. If lead is found in any of the units, all of the units must be tested. In addition, any unit with a child under age seven with an EBLL must be tested. If lead is found in any common area, all of the common areas must be tested. If lead paint is found on chewable surfaces, the entire surface must be treated.

In Tackling v. Sinerman 8 CSCR 257 (1993), the Superior Court for the Judicial District of New London at New London held that the failure to meet the federal requirements may also be an unfair trade practice under Connecticut law.