An Introduction to the Structure of New York’s Lead Paint Law
The New York State lead paint law was enacted as a part of the state’s Urban Development Corporation Act in 1968. The stated purpose of the law is "to define a policy for lead-based paint poisoning prevention and to provide the mechanisms and financial resources to eliminate or reduce lead poisoning risks for young children in New York State’s low income housing." The law authorizes the Commissioner of Housing to implement a program to establish a "Lead Hazard Reduction Program." The New York City Department of Housing Preservation and Development (HPD) administers this program .
The Mayor’s Lead Paint Hazard Reduction Program (LPHRP) began in 1992 and was based on Local Law 1, which was passed in 1982 and required inspections and repairs for lead hazards in vacant apartments. In 1987, Local Law 10 expanded the regulation of lead paint to one- and two-family homes, and Local Law 12 addressed health threats to children from lead in soil, dust, paint, and other sources. Section 27-2056.3 of the Building Code requires owners of residences to provide lead-based paint disclosures to occupants. HPD has also partnered with several city agencies to develop code-compliant and energy-efficient guidelines for the renovation of public housing developments.
The Basic Components of the Lead Paint Law
The key provisions of the Lead Paint law are found in §§ 496, 498, 499 and 501 of the Real Property Tax Law. In pertinent part, these sections of the law require that owners of affected buildings:
The statute also provides that this exemption is applicable only upon the filing of the above listed statements, accompanied by proof of compliance. This compliance must be established by means of a sworn statement from either the property owner or the property’s agent and backed up by a certificate of a certified lead paint risk assessor and/or lead paint inspector (if required).
For multi-family properties subject to the lead paint law, § 501(8) allows the Department of Housing and Community Renewal ("DHCR"), upon application, to allow a one year extension of the above deadline for filing the required statements.
DHCR is also mandated to issue an information sheet, in both English and Spanish, setting forth "the general requirements and procedures".
Health Consequences of Exposure to Lead-Based Paint
The primary health concerns for children associated with lead paint exposure are developmental disorders, learning disabilities, and behavioral issues. Children are particularly susceptible to health risks posed by exposure to lead, as their developing bodies can more readily absorb lead contaminants. A child’s body will then distribute lead throughout the body to organs, bones, and tissue. This exposure can cause irreversible damage to a child’s nervous system. Both a child’s brain and nervous system are critical to learning and development. Younger children are at a greater risk for lead poisoning as they are prone to put their hands and other objects into their mouth. Exposing children to lead can lead to a myriad of negative health effects, such as weakness, headaches, dizziness, and pain in the muscles and bones. Children that have elevated blood lead concentrations are at risk for speech and communication disabilities, attention-deficit disorder (ADD), attention-deficit/hyperactivity disorder (ADHD), autism, and hyperactivity. These disabilities can be long-term issues for children and/or result in irreversible life changes. According to the American Academy of Pediatrics, lead poisoning is a preventable cause of developmental disabilities. Pregnant women are more susceptible to lead exposure, as lead can move through the placenta and into the unborn baby’s blood. Lead poisoning during pregnancy can lead to miscarriage, stillborn births, low birth rates, early birth, and developmental delays. The federal Centers for Disease Control and Prevention (CDC) recommends that all pregnant women get tested for lead poisoning. Lead paint, in particular, can affect a child’s development by damaging parts of the developing brain that control attention, impulse control, mental health, and behavior. Pregnant women should avoid handling or disturbing any possible lead dust or lead paint, particularly in older homes. Pregnant women should refrain from housing renovations until all lead contamination issues have been addressed.
Owner and Landlord Obligations Under the Law
The New York State law placing obligations on residential property owners in relation to lead paint came into effect on June 15, 1986. This law applies to all residential properties built before Jan. 1, 1978 and requires that all owners of properties built before 1978 comply with the law as it relates to lead paint.
For any property built between 1939 and 1960 that is either owner-occupied or where a child under six years old will be residing, the landlord or owner must: For any property built prior to 1939 without replacement windows that is either owner-occupied or where a child under six years old will be residing, the landlord or owner must: For any property built after 1960 and prior to 1978 where a child under six years old will be residing, the landlord or owner must:
An initial risk assessment and inspection must be conducted which identifies all lead hazards found in the property. "Lead hazards" are defined by Public Law § 2490(2) as "any condition that causes lead from painted surfaces to come into contact with a child under age six, including, but not limited to deteriorated lead paint on accessible surfaces, chipping, peeling, or flaking paint, bare or painted surface dust, and bare soil with lead concentrations that exceed the thresholds established by the department in regulation. This should be performed by an inspector, such as a licensed lead inspector or supervisor. Once the risk assessment and inspection are complete the owner must begin the abatement process. The initial abatement plan must have a description of the location of the lead-based paint and all lead hazards to be addressed, the methods by which the lead hazard will be removed, how the abatement will be completed, recordkeeping requirements, and other details. Inspections must be done every two years. A risk assessment must be done regardless of whether any visible peeling has occurred. In addition to the initial mitigation plan, there must be a clearance examination no less than two feet from the surrounding area. In buildings built prior to 1960, if the windows have been replaced then there is no requirement for a lead hazard inspection to be done. There is no penalty for a tenant selling lead paint or putting a child at risk.
Tenant Rights Related to Exposure to Lead Paint
A tenant, and any other occupant or household member in a residential unit built before 1978, has the right to receive specific notices and disclosures as required by New York State real property law. For example, pursuant to Real Property Law § 442-e, the owner must provide the tenant with a copy of the Lead Disclosure. Similarly, if the owner performs any work in the premises that is reasonably likely to disturb lead-based paint that has resulted in the presence of lead hazards (i.e. dust, paint chips, or deteriorated lead paint), the owner is required to provide the tenant with a copy of the EPA booklet "Protect Your Family From Lead In Your Home" prior to beginning such work . An owner who has not complied with these requirements should be discouraged from attempting to evict any tenant, as courts will usually deny an owner’s motion for summary judgment based upon noncompliance with these obligations.
In addition, tenants may request periodic risk assessments for lead exposure. New York City Local Law 1 requires that a risk assessment be performed every year if a child under the age of six resides in the unit. In the case of a newly reported child under the age of six, the landlord must perform a risk assessment within ten days of receiving notice. Failure to do so could result in the issuance of a lead paint violation against the property owner.
In review, it is important that both the owner and the tenant understand and know what to expect from each party under the lead paint law.
Enforcement Mechanisms and Consequences Under the Law
Enforcement of the New York State lead paint law is the responsibility of local health departments. In New York City, for example, the Department of Health and Mental Hygiene ("DOHMH") is responsible for enforcement of lead paint laws. Unless a certain exception applies (such as the State Inspection Report not confirming the presence of lead paint), owners are not permitted to issue a lease without a lead-based paint disclosure form signed by both the prospective tenant and the current owner.
Under New York State law, a landlord can be fined up to $1,000 per violation for failing to register, or failing to comply with a request for inspection. Both landlords and contractors can be fined up to $25,000 for violating lead paint regulations. New York City Administrative Code § 27-2056.4. The fine can be imposed for performing work without notifying the DOHMH or failing to obtain a permit, or violating the reporting procedures if a child under six years old is a tenant of the building.
Lead paint of a residential building is generally presumed to be present if it was built before 1978. However, if an inspection report prepared by a licensed environmental engineer or inspector shows no lead paint is present in the apartment, the owner can furnish the prospective tenant a copy of the inspection report in lieu of the disclosure form.
New York State lead paint law requires landlords to provide notice to tenants of any presence of lead paint. However, there are no civil or criminal penalties against a landlord for failing to provide such notice or fore performing an inspection. For owners on Long Island, there’s a procedure for the issuance of a citation permitting an individual to sue a landlord for violations under New York City Administrative Code.
New York City Health Code § 173.14 ("Lead paint testing") permits the issuance of administrative citations against individuals at the New York City Public Health Tribunal who conduct lead paint inspections. Notably, the administrative citation on its own does not permit individuals to file regular lawsuits against owners for lead paint violations.
While the law provides for fines for violations, homeowners cannot be sued for the presence of lead paint unless they have violated the child lead law. Moreover, civil issues arising under lead paint include: a lack of notice; a difference in landlord violation; the failure to obtain a required inspection; the use of an unlicensed contractor; unsafe lead work practices; lack of clearance testing, failure to provide notice prior to commencing work, failure to repair hazardous conditions, and failure to comply with clearance testing.
Recent Developments with the Lead Paint Law in New York State
Recent legal trends suggest a potential shift in how these cases may be litigated in the future. New York courts have historically found that current law fosters a link between the lessor and the lessee, not the owner and the tenant. Crucially, that link forms when, with the landlord’s see no objection to her moving into an apartment with lead paint, the tenant moves into the apartment. Given the risk of lead poisoning, the State wants landlords to take precautions to remediate any potential lead sources before a tenant occupies the space. However, when litigation of this sort proceeds to court, the issue becomes, in most cases, whether or not the nature and impact of the lead paint was known to the tenant at the time of commitment to a rental agreement. In 2015, a New York appellate court left little doubt as to the direction NYS was moving on this legislation. In Davidson v. Jamaica Hosp. Med. Ctr., the Court of Appeals helped define the nature of the landlord-tenant relationship, whether it related directly to a tenant’s safety and whether it could be considered a matter of recklessness. The problem is that as government dictates the relationship between two parties, this undermines the value of the private investment of the landlord and the willingness of the tenant to enter into an agreement regarding rental of the space. Another issue arose in its handling of the issue of risk of harm from lead paint exposure and the statute of limitations. In Davis v. Honeywell Int’l, Inc., the court found that a seven-year-old girl’s lead poisoning, resultant cerebral palsy and mental disabilities were a direct result of lead dust contamination that the Department of Health determined came from lead paint dust on the pipes that Honeywell manufactured. The plaintiffs argued that because they could prove in their complaint that the blood lead level in the child’s blood "measured above 9 micrograms per deciliter . . . , a violation of the New York City Childhood Lead Poisoning Prevention Act" the landlord was liable for future damages too. The Court reiterated their focus on the importance of the first instance of blood lead testing rather than focusing an outcome or final result; had they ruled otherwise, they would have ignored both NY law and the NOE established by the Department of Health.
How to Comply with New York State’s Lead Paint Statute
One of the challenging aspects of a relatively new law like the New York State lead paint law is the uncertainty about when it takes effect and whether something needs to be done by its deadline. Just because the legislation has now been enacted does not mean that all properties have to be in compliance by a certain date. In fact, the law’s implementation process will likely extend over the next few years.
Nevertheless, it’s important for real estate professionals to know what steps they’ll need to take to be in compliance with the law, and to stay abreast of subsequent developments, including due dates, certification requirements, violations and fines for non-compliance.
As stated above, these testing and remediation requirements apply to all pre-1960 residential buildings (including condos and co-ops) on which a permit for alteration was issued beginning January 1, 2012. (Some buildings may have already undergone lead paint testing and remediation under earlier NYC regulations and will not require additional testing.)
It also includes one- and two-family houses and multiple dwellings built before January 1, 1978, regardless of whether they are receiving HPD programs or services . For more info on testing, visit the "Testing Guidelines" section of the New York State Department of Health website.
If testing shows lead paint is present and confirmed, the next step is remediation.
For rental apartments, owners will have a grace period until August 31, 2013 to comply. As such, do not attempt to remediate lead without first ascertaining whether an apartment has received a permit beginning January 1, 2012. Owners can also use standard lead paint protocols with pre-1960 apartments if they have received a HPD Order for Emergency Work, Emergency Repair, Construction Hazard Control, or an LSHR violation issued on or after August 2, 2012.
Additionally, the Department of Buildings also requires "Lead-Safe Work Practices" for lead and asbestos handling or disturbance. These protocols must be followed until the apartment is remediated and the issue is cured at HPD.
For owner-occupied premises, single family dwellings and multiple dwellings built before 1978, the Department of Health is recommending removal of shallowly embedded lead paint in addition to application of encapsulants, sealants or waterproofing agents.