Lead Paint in Real Estate

Lead can be found in all parts of our environment – the air, the soil, the water, and even inside our homes. Much of our exposure comes from human activities including the use of fossil fuels including past use of leaded gasoline, some types of industrial facilities and past use of lead-based paint in homes.

When it comes to real estate, many homes and condominiums built before 1978 have lead-based paint. Paint that has chipped or is deteriorating, or on surfaces that rub together such as windows and doors, creates lead dust which can pose serious health hazards to occupants and visitors. Homebuyers and renters have important rights to know about whether lead is present -- before signing contracts or leases.

Lead paint was once a sought after material known for its shiny finish. In 1978, this product was no longer available for purchase in Massachusetts as it can directly lead to lead poisoning caused by breathing or swallowing lead. It is important to note that though it was not for sale, people may still have some on hand, and it may have been available in surrounding states for purchase.

Lead can be extremely harmful to children under 6 as it is more easily absorbed, it can affect people of all ages. Lead poisoning can affect the brain, kidneys, and nervous system, slow down growth and development, make it hard to learn, damage hearing and speech, and cause behavioral problems. Additionally, it can remain in your body for long periods of time, and some damage may never be resolved.

Many homes built before 1978 contain lead, whether from lead paint or structural materials. The Federal Lead Paint Law was created to protect children under the age of 6 years from potential exposure to lead.

Under Massachusetts and federal law, owners and real estate agents must comply with Property Transfer Lead Paint Notification requirements in the following situations:

• When a prospective tenant is about to rent a home built before 1978

• When a prospective buyer, or tenant with an option to buy, is about to purchase a home built before 1978.

The requirements above apply regardless if the tenant or buyer has a child under 6 or not.

The Lead Law protects a child’s right to live in a lead-safe home. The law requires the removal or remediation of lead paint hazards in homes built before 1978 where a child under 6 years old lives. Lead paint hazards include loose lead paint, lead paint on windows and friction surfaces, and other surfaces accessible to children. Often the term “mouthable surfaces” is used when referring to areas in which lead paint must be removed. Owners are responsible for complying with the law. This includes owners of rental property as well as owners living in their own single-family home. Financial help is available through tax credits, grants and loans.

Lead can be found in a variety of housing attributes found throughout Cape Cod, Martha’s Vineyard, and Nantucket including rehabbed or vintage materials, marine paints, vintage light fixtures welded with lead, barn doors, and reclaimed mantels. For homes that were built post 1978 but may include lead, it should be disclosed with other disclosures for the property.

Massachusetts has their own lead law that is in addition to the federal standard. In 2017, the regulation was updated in Massachusetts to test for a lower level of lead exposure allowing a potential issue in a child under 6 to be discovered earlier and hopefully prevent any future harm.

The Massachusetts Lead Poisoning Prevention and Lead Law requires all children to be screened for lead poisoning multiple times through the age of 3, potentially at age 4 and every child must also have a lead screening test before they can enter daycare, kindergarten, or preschool.

Understanding the Property Transfer Lead Paint Notification and assisting your client in completing the form correctly is an important part of the transaction process. Fines from the Environmental Protection Agency (EPA) are up to $11,000 per error on the form - and there has been prominent cases in Massachusetts of real estate brokerages being fined for violating the lead paint disclosure law.

Each party to the transaction should only complete the appropriate information and follow the directions carefully (i.e. if the form asks for a check then a checkmark is used and initials are placed where started). All 11 pages must be provided to your client, not just the last page that includes the buyer & seller's information.

The Cape Cod & Islands Multiple Listing Service (CCIMLS) requires that the Property Transfer Lead Paint Notification form be uploaded and available prior to a listing being active for homes built before 1978. The form is required to be provided at the acceptance of a ‘Contract to Purchase Real Estate’ (the offer), which is a binding contract. We suggest having the ‘Property Transfer Lead Paint Notification’ form signed when getting the listing agreement signed. Buyer agents should be returning the lead paint disclosure when submitting an offer on the property.

If a property is not subject to federal and state laws regarding the mandatory lead paint disclosure, the mandatory submission is not required. If an owner who is subject to the mandatory disclosure does not want to disseminate the completed disclosure form through the MLS, the owner may waive that requirement by submitting the CCIMLS Lead Paint Disclosure Opt-Out Form linked below.

Massachusetts Health and Human Services provides a Lead Safe Homes look up to see if a home has ever tested for lead, has had lead hazards or has a letter of compliance. As many homes may have been tested before the creation of the online database you can also call the state directly at 1-800-532-9571 to confirm there are no known records for a certain property.

The State recently updated its Lead Safe Homes into two databases:

1.) Lead Safe Homes 2.0 has lead inspection reports and compliance documents.
2.) Lead Safe Homes 1.0 lists a property’s lead history. It does not have copies of documents.

The state of Massachusetts provides financial assistance for deleading. There are different programs available including tax credits, loans and specialized programs.

You are allowed to perform low-risk deleading without a licensed deleader if you complete a variety of steps including completing a state quiz to show you understand the risks and process of deleading. Moderate-risk deleading may be done after the completion of an 8-hour course that includes safety procedures like containment, cleanup, working safely, reinspection and regulatory requirements.

A list of licensed lead inspectors can be found on the state website in addition to a list of licensed deleading contractors.

Owners of Short Term Vacation Rentals may receive a Lead Law exemption, if it meets the exemption of the state regulation, 105 CMR 460.100 (D) (1) (a) through (g).

The owner of the property that is being rented or occupied for vacation purposes must certify that either:

• All paint in the dwelling unit is intact including on the exterior parts of the windows and qualifies for an exemption from the Lead Law which requires the owner to abate or contain lead paint if a child under 6 years of age is in residence.

• The dwelling unit has received a compliance document certifying that the unit met standards for full deleading or interim control compliance. A copy of the compliance document and inspection/reinspection reports associated with this unit should be placed in the dwelling unit for review

If peeling paint is present in the dwelling unit, the owner is not exempt from the obligations of the Lead Law.