This is Why you CANT SAY it: Family Unfriendly Policies get Landlords into BIG Trouble

April 6, 2012 I posted an Article on What you CAN'T SAY on Craigslist. This is a follow up on the reason why you can't say "not deleaded" or any variation of. The Massachusetts Lead Laws have very strict mandates. If you choose to insert statements such as lead paint or not deleaded you may find yourself answering to the Massachusetts Commission Against Discrimination (MCAD) The case involving Mary Gardner vs A-Team Realty Docket No. 09-SPR-02817 is just one example.

Massachusetts Lead Paint Law Advisory: Family Unfriendly Policies Get Landlords into Big Trouble
This article is written by Attorney Rich Vetstein of the Massachusetts Real Estate Law Blog

Two Local Real Estate Firms Fined By Mass. Attorney General For Lead Paint Housing Discrimination

My Boston.com fellow blogger, buyer’s agent Rona Fischman, has fielded several questions recently regarding the Massachusetts Lead Paint Law. Prospective renters have called apartment listings only to be hung up on abruptly with a “It’s not deleaded!” if they hear a child in the background or if they answer truthfully about having children. Mothers have received termination notices when the landlord discovers they are pregnant – usually of course for tenancies at will. Finally, there is a listing this week in a local paper for an owner occupied 2 family rental which states “Unit Not Deleaded” right in the ad.

The short answer is these are all likely violations of the Massachusetts Lead Paint Law, and could expose the offending landlords to stiff penalties and damages.

Under the Massachusetts Lead Paint Law, whenever a child under six years of age comes to live in a rental property, the property owner has a responsibility to discover whether there is any lead paint on the property and to de-lead to protect the young children living there. A property owner or real estate agent cannot get around the legal requirements to disclose information about known lead hazards simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. And property owners cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.

As the stories above show, landlords routinely flaunt, or are just plain ignorant of, the law. The issue becomes what to do about it and is it worth the time and aggravation? I guess that depends on your situation. Certainly, if you are being threatened with a discriminatory eviction, your first step should be to contact the Massachusetts Commission Against Discrimination (MCAD) and your local Fair Housing Commission. In a recent case, the MCAD hit a property owner with $25,000 in damages and fines for evicting a young family to avoid de-leading. Next consider hiring a housing discrimination attorney. If you are low on funds, the attorney may agree to take the case on a contingency because violations of the lead paint law and discrimination laws provide for the reimbursement of attorneys’ fees and enhanced damages.

As for the “Unit Not Deleaded” ad, while may be truthful, it might as well read “Children Under 6 Not Wanted.” I would advise a landlord to avoid this sort of indirect discriminatory preference.

Lastly, the law is conflicting regarding owner occupied two family homes. Chapter 151B, the state anti-discrimination law, exempts owner occupied two family homes from the prohibition of discrimination against children. However, there is no such exemption written into the lead paint law. So if a child is born into a owner occupied 2 family, it must be de-leaded. Vacation/recreational rents and short term (31 days or less) rentals are also exempt from the lead paint law.

More on Lead Paint Legislation

Published June 29, 2010 in the Salem News

Our view: New lead-paint rules a nightmare for contractors, homeowners

"Bureaucracy is the death of all sound work," Albert Einstein once said, and sadly, we haven't come very far since his time on this planet.

The latest victims of bureaucratic misfortune are contractors, and ultimately, homeowners, who make improvements in homes or other buildings that may contain lead paint.

Starting in April, the federal Environmental Protection Agency enacted a major change in how contractors deal with lead paint. The regulations have greatly increased the cost to consumers who want to have their homes painted or have work done that involves disturbing anything over six square feet in area that may contain lead paint.

Your bill will likely be 15 to 30 percent more under the new regulations. For people wanting to have the entire exterior of their home painted, the added cost will amount to thousands of dollars.

That's bad enough. For contractors, bureaucratic bungling has caused even more problems.

The new law calls for contractors to be professionally trained or face fines of up to $37,500 for each violation. But the EPA failed to ensure there would be an adequate number of trainers available to teach the 8-hour course. As a result, some states had no trainers in place when the law went into effect. Massachusetts had relatively few trainers — there were only a couple of dozen or so to handle the tens of thousands of contractors who needed to be trained. The entire state of Maine had only three trainers.

The net effect was many small contractors simply stopped working on homes that were built before 1978, the year that the United States banned the use of lead paint. Which means the pool of contractors has dwindled significantly.

Under howls of protest from Congress and trade organizations, the EPA last week postponed enforcement of the regulations until the fall, in hopes that trainers will catch up with the long line of contractors waiting to take the course.

No one would argue it's a bad idea to remove lead from homes and from buildings where children come in contact with it. Exposure to lead — in this case, through lead paint — can cause severe health problems. It is linked to developmental disabilities in children.

It's the disconnect between bureaucracy and the working world that it is supposed to regulate, that is most frustrating. Enacting laws from on high without giving contractors an adequate way to comply, is irresponsible. Congress should look into this matter, trace it through the EPA's chain of command, and hold the responsible bureaucrats accountable.

The United States banned lead from paint in 1978, and even back then we were decades behind the times. As early as 1904, doctors clearly traced lead paint's health impacts on children. In 1909, France, Belgium and Austria were the first nations to ban interior use of lead paint, followed in short succession by most European countries. America had a chance to join its League of Nations allies in 1922 in a ban on lead paint, but opted out.

Our efforts to catch up should be better planned than the fiasco we are currently witnessing.

Congress May Delay Fining for New EPA Lead Paint Laws

Congress may delay fining contractors and property owners until at least September to allow more time for training. The U.S. Senate voted 60-37 to approve a bill that would prevent contractors from being fined for not complying with a new U.S. Environmental Protection Agency rule on lead paint by blocking funds in a supplemental appropriations bill from being used to levy fines. A contractor who is not certified faces a fine of $37,500 per day. The bill, sponsored by Sens. James Inhofe, R-Okla., and Susan Collins, R-Maine, passed Thursday with the support of all of the Senate Republicans who were present and opposition from 36 Democrats and one Independent. The senator also called on the Senate Environment and Public Works Committee to hold an oversight hearing on the rule.

The EPA's Lead Renovation Repair and Painting Rule, which went into effect April 22, 2010, requires that renovations of homes built before 1978 be supervised by a certified renovator and conducted by a certified renovation firm to prevent workers from contaminating homes with potentially harmful lead dust.

The new law was not well advertised so no one was aware that it would become effective in April of 2010 and the EPA has too few instructors to train everyone before the deadline. As of May 7, there were 212 training providers to service the entire country with 10,000 courses offered*. Massachusetts had only five instructors to cover the entire state and the Moderate Risk Deleading training that most property owners were certified in was not accepted by EPA as proper training.

The bill's passage is a sign that "there is bipartisan concern about the disastrous implementation of EPA's lead-based paint rule," Inhofe said.

Inhofe and Sen. Tom Coburn, R-Okla., have also introduced another bill that would put off enforcement of the lead paint rule for at least a year, until contractors have a chance to take the required training course.



*EPA says that as of June 14, 2010, 247 accredited training providers have conducted more than 15,000 courses.

New Lead Paint Requirements commencing April 22, 2010

RRP RULE AND NEW LEAD-SAFE PRACTICES REQUIREMENT AFFECTING LANDLORDS BEGINNING APRIL 22, 2010

The EPA has issued a Renovation, Repair and Paint rule (RRP) requiring the use of lead-safe practices and other actions aimed at preventing lead poisoning. Under the rule, beginning April 22, 2010, landlords and contractors performing renovation, repair and painting projects that disturb lead-based paint in rental property built before 1978 must be certified and must follow specific work practices to prevent lead contamination. Common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children.

What types of properties and facilities does the lead paint rule apply to?

The RRP Rule applies to "residential houses, apartments, and child-occupied facilities such as schools and day-care facilities built before 1978." In addition, the rule must be followed when "repair or maintenance activities disturb more than 6 square feet of paint per room inside, or more than 20 square feet on the exterior of a home or building." Renovation is broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling, and maintenance activities, including window replacement.

Exceptions?

The EPA outlines activities which are excluded from the rule, such as emergency repairs and "minor' repair or maintenance, including work with less than six square feet of disturbed interior space. However, the EPA specifically states that "window replacement" is not minor repair or maintenance.

Who must follow the rule?

According to the EPA, the rule applies as follows: "In general, anyone who is paid to perform work that disturbs paint in housing and child-occupied facilities built before 1978, including but not limited to: residential rental property owners/managers; general contractors; special trade contractors including painters, plumbers, carpenters and electricians." As to landlords and property managers, the EPA booklet says, "The receipt of rent payments or salaries derived from rent payments is considered compensation under the EPA's lead paint rule. Therefore, renovation activities performed by landlords or employees of landlords are covered [by the rule]."

What are some of the rule requirements?

Rental property owners or contractors working on your rentals, who renovate, repair, or prepare surfaces for painting in pre-1978 rental housing must, before beginning work, provide tenants with a copy of EPA's lead hazard information pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools. Owners of these rental properties must document compliance with this requirement. The EPA werbsite provides a sample pre-renovation disclosure form, which may be used for this purpose.

Understand that after April 22, 2010, landlords who work on their own properties or contractors doing the work, and perform above mentioned projects in pre-1978 rental housing, must be certified and follow the lead-safe work practices required by EPA's Renovation, Repair and Remodeling rule. If you are the landlord/owner and do the work yourself, you must be a trained renovator. You are allowed to teach any workers helping you and they perform the work under your training. And, if you aren't a contractor, and are an owner/landlord, then besides being "a trained renovator", you have to file with the EPA that you or your company is certified and responsible for your trained workers.To become certified, property owners and contractors must submit an application for certification and fee payment to EPA.

A "certified renovator" must be assigned to each renovation project, and "must be available, either on-site or by telephone, at all times renovations are being conducted." This person must have completed an 8-hour training course approved by the EPA. A full list of providers is listed at: http://www.epa.gov/lead/pubs/renovation.htm

Property owners who perform renovation, repairs, and painting jobs in rental property should also:
* Learn the lead laws that apply to you regarding certification and lead-safe work practices beginning in April 2010.
* Keep records to demonstrate that you and any one working under your supervision have been trained in lead-safe work practices and that you followed lead-safe work practices on the job. To make recordkeeping easier, you may use the sample recordkeeping checklist on the EPA website that was developed to help renovators comply with the renovation recordkeeping requirements that will take effect in April 2010.

Any requirements for homeowners working at their own Home?

If you are a homeowner performing renovation, repair, or painting work in your own home, EPA's RRP rule does not cover your project. However, you have the ultimate responsibility for the safety of your family or children in your care.

Any additional requirements for Contractors working on your rentals?

Any contractors who perform renovation, repairs, and painting jobs on your rental property should also:
* Take training to learn how to perform lead-safe work practices.
* Find a training provider that has been accredited by EPA to provide training for renovators under EPA's Renovation, Repair, and Painting (RRP) Program.
* Please note that if contractors previously completed an eligible renovation training course they may take the 4-hour refresher course instead of the 8-hour initial course from an accredited training provider to become a certified renovator.
* Provide a copy of your EPA or state lead training certificate to landlord clients.
* Tell landlord clients what lead-safe methods you will use to perform the job.
* Learn the lead laws that apply to them regarding certification and lead-safe work practices beginning in April 2010.
* Ask landlord client to share the results of any previously conducted lead tests.
Provide landlord clients with references from at least three recent jobs involving homes built before 1978.
* Firms are required to be certified, their employees must be trained in use of lead-safe work practices, and lead-safe work practices that minimize occupants' exposure to lead hazards must be followed.
* Keep records to demonstrate that you and your workers have been trained in lead-safe work practices and that you followed lead-safe work practices on the job. To make recordkeeping easier, you may use the sample recordkeeping checklistfrom their website that EPA has developed to help contractors comply with the renovation recordkeeping requirements that will take effect in April 2010.
* Read about how to comply with EPA's rule in the EPA Small Entity Compliance Guide to Renovate Right.
* Read about how to use lead-safe work practices in EPA's Steps to Lead Safe Renovation, Repair and Painting. NOTE:


What is the penalty for landlords or contractors who do not comply with the EPA rule?

Fines for violating RRP Rule requirements can be up to $37,500 per incident, per day.

Above excerpts are taken in part from the EPA website. For additional information, clarification or answers to frequently asked questions, refer to the EPA website.