What Every New York Landlord Should Know About Lead Paint
Lead-based paint, commonly used in homes before 1978, may cause significant health issues, especially in children. Even small amounts of lead poisoning can result in allegations in lawsuits alleging developmental delays and neurological damage to children. New York City implemented stringent regulations regarding lead paint in rental properties. In New York State outside the City, the courts have interpreted common law regarding notice of hidden hazards and failure to correct them against landlords in lead paint lawsuits. Federal law has long required landlords to disclose lead paint hazards to tenants and to provide a federal pamphlet on the hazard of lead paint. New York owners or managers of rental properties, including condo owners or coop boards and managers, are well advised to understand what is required when it comes to lead paint. Read on to learn about some of the laws and liability related to lead paint in New York, and contact the Law Offices of Richard A. Fogel, P.C., for assistance from an attorney well-versed in defending landlords in lead paint litigation in New York City.
Local Law 1 (LL1)
In New York City, the primary statute related to lead paint is the Childhood Lead Poisoning Prevention Act of 2003, known to most as Local Law 1 (LL1). At the state level, common law (case law) controls. In either case, the law aims to minimize lead exposure, particularly in children under the age of six and to make landlords responsible for abating lead paint in housing.
Under LL1, landlords were originally required to remediate lead present in multiple dwellings (buildings with three or more apartments) built before 1960 (or between 1960 and 1978 if the owner is aware of the presence of lead-based paint), as well as certain leased condos defined in the law. New York City substantially expanded the law in 2021, and it now applies to any private residence where at least one unit is occupied by someone besides the owner or a member of the owner’s family. Note that “occupied” does not necessarily mean the unit has to be rented to the occupant. LL1 effectively makes landlords strictly liable for the presence of lead paint regardless of actual notice or knowledge of the problem, eliminating common law defenses.
LL1 additionally requires Landlords to annually conduct a written survey of who exactly is living in each apartment, since children have a way of showing up without the landlord’s knowledge and inspect these units annually for lead-based paint hazards if a child under six resides there. “Resides” is defined as being present in the unit for ten or more hours per week. Accordingly, if grandma babysits a child each week, the child is considered to be residing in the unit for the purposes of LL1. The required inspection includes looking for peeling paint and testing for lead dust and lead in the soil. If these hazards are discovered, landlords must use safe work practices to remediate the issue and hire an EPA or state-certified contractor. Regardless of what the inspections show, LL1 still makes landlords liable if lead paint is found in the apartment or common areas. LL1 further requires landlords to remediate lead paint in any apartment that is vacated before any other tenant moves in, regardless of whether the new tenant includes a child.
Under LL1, landlords must provide written notice to tenants when a lead paint hazard is identified and remediate the hazard within 21 days using a trained and certified contractor. Failing to meet these obligations can lead to severe penalties, including hefty fines and potential legal suits. Courts have held that the landlord is obligated to find temporary housing for the tenant while the unit is remediated.
The Issue of Liability
Landlords face a substantial probability of liability if a child tests positive for blood lead and lead paint is found on the premises. All children are tested for blood lead in New York as a matter of law before they enter school or daycare and many pediatricians test the children much sooner if they suspect the child is at high risk because of poverty. The doctor is required by law to notify the local county or New York City Department of Health (DOH) if any child tests positive for blood lead which will result in testing every painted surface in the unit for lead paint, usually without the landlord’s knowledge until they receive a violation. This can result in substantial financial penalties and potential lawsuits from tenants. Virtually all homeowners’ insurers added an absolute exclusion for lead paint liability in the late 1990s so the landlord or manager will likely be uninsured for any lead paint personal injury claim. Occasionally an umbrella insurance policy may cover lead paint liability even if the primary policy does not so it is advisable to check into umbrella insurance. Note that this lead paint liability extends to rental property owners, managers, condo owners, and coop boards and managers. Current common law presently exempts coop owners as they are considered shareholders but that has not stopped lawsuits against coop owners and case law can always change.
In addition to DOH, local county or NYC Dep’t of Housing Preservation and Development (HPD) may also enforce lead paint laws, usually by observing or responding to complaints of peeling paint. Usually, HPD will only test the peeling paint area for lead or it may issue a violation without testing asserting a presumption of lead paint based upon the age of the building unless the landlord proves otherwise. Landlords should be aware that if lead paint is found in one location in the unit, it is almost certainly elsewhere in the unit and therefore the landlords will have to test the entire apartment and common areas, not just the area of peeling paint.
LL1 requires landlords to retain all documentation of inspections, surveys, notifications, and remediation actions. HPD can audit landlords and managers for this paperwork at any time, regardless of any lead paint issue, and failure to comply will result in violations and fines. Moreover, this documentation may be vital to the defense in the event of a lawsuit.
The Department of Health and Mental Hygiene (DOHMH) in New York, as well as the federal EPA, have issued guidelines for lead-safe work practices. It is essential for landlords to hire licensed contractors to comply with these standards during any renovation, repair, or painting project that could disturb lead-based paint in pre-1978 buildings. You can’t just hire “Joe the handyman” to remediate lead paint.
Experienced Legal Help With Lead Paint Claim Defense in New York
As a landlord in New York understanding and complying with lead paint laws is not only a legal obligation but also a step toward ensuring the health and safety of your tenants. A proactive approach to lead paint hazards can significantly reduce the risk of liability and lawsuits, which in most cases are not covered by insurance. If you find yourself facing potential legal issues related to lead paint or other environmental hazards, it is wise to consult with a legal professional experienced in this area of law to advise you, guide you and represent you as necessary. For guided, experienced legal assistance with a New York insurance defense, toxic tort, or products liability claim, contact the Islip offices of Richard A. Fogel at 516-721-7161, firstname.lastname@example.org.