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Lead paint: the condo question

Posted by Rona Fischman  June 25, 2008 04:03 PM

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A reader asked me a question about lead paint and condos. What happens if a unit is lead-safe, but the common area is not? How does the liability work? Since IANAL, I asked a legal colleague. She told me this:

Let’s say a child under the age of six living in a condo more than 20 hours a week. If a condo unit owner were to complete a lead inspection, remove all the lead from within their unit, and obtain a Certificate of Compliance, he or she would have done everything in their power to remove the lead paint health risk from affecting their tenant.
Without lead in the condo unit, the tenant would be unable to hold the condo owner liable for any lead paint poisoning that the child later suffered.
The responsibility, then, would fall upon the Trustees of the Condominium Trust or the Managers of the Condominium Association. The Trustees/Managers have a legal responsibility to care for the Common Areas and grounds of the Condominium on behalf of all the unit owners. In that position, their job is to insure the safety and health of all who live at the Condominium, including owners and their legal tenants. If it could be shown that the child had elevated lead levels causing illness, and the child’s condo unit was free of all lead-based products but there was lead in the Common Areas, then the liability for the child’s injury would fall to the Condominium Trust/Association and that entity could be sued for the consequential damages sustained by the child resident.

So, here is yet another thing to be concerned about when you buy a condo in an old building in Massachusetts.

Thank you J.K.

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11 comments so far...
  1. Ok, I'm the owner of a condo in an old building, and a father of young children. My unit is certified lead-free, and I have no idea about the common areas.

    My understanding is that unless the lead is stirred up (by scraping of some kind) or literally chewed on by kids, then it's not too terrible a danger. How many kids are going to chew on common unit woodwork regularly? I understand the larger point - liability - but as a practical matter the chances of the worst happening here are probably very very small.

    Posted by accidental landlord June 25, 08 04:20 PM
  1. Some kinds of scraping are unavoidable - for example, walking across a floor painted with lead paint, or opening and closing a window or door painted with lead paint. Also, peeling paint is a significant source of lead dust, although if the building is properly maintained this should be less of a problem.

    Also, a significant amount of lead still comes from lead in the soil (due to decades of leaded gas usage, for example) that gets tracked into the house. If a kid gets poisoned and lead is found in or on the building, it can be difficult to prove that the lead came from outside.

    The lead paint laws presume you are liable if a kid gets poisoned and lead is found in the building and you don't have a letter of compliance. Insurance generally no longer covers this, so your exposure (no pun intended) may be greater than you think. Ask the condo board, maybe they have inspection records.

    Posted by Charlie June 25, 08 04:45 PM
  1. About the dangers, you are right about the unlikelihood of chewing or chipping problems, but the dust issues brought up by Charlie are possible. Also soil in this area is full of lead from the days of leaded fuel and lead exterior paint.
    Old windows will create dust when they are raised and lowered; doors will make dust opening and closing. That blows into the halls, so the dust is there for your child to breathe.

    As for what inspectors do. I have spoken to a few of them lately. They do not automatically blame the house for the poisoning. They look at lunch boxes, playground soil and such, as well. The health department is not out to pick your pocket. They are out to keep children healthy.

    Posted by Rona June 25, 08 06:33 PM
  1. "The health department is not out to pick your pocket. They are out to keep children healthy." Absolutely, as they should.

    I should say that we rent this condo now, we don't live there anymore. I need to do some due diligence finding out about the common areas. The place likely isn't attractive to people with young kids, and none are there now. But still, should a person with kids want to rent the place I'd have to consider them (legally I believe).

    Posted by accidental landlord June 26, 08 10:45 AM
  1. J.K.

    A condo that is deleaded only on the inside of a unit will not receive a Compliance Letter. "Compliance" always includes the common areas relevant to that unit. If a child is poisoned and the source is found to be in the common area then the association is liable, which means every unit owner is liable.

    accidental,

    "Certified lead free", as a standard, does not exist in Mass. You can have it tested by an inspector and there may be no lead paint but that inspector can't certify or comply it your unit.


    Posted by Peter June 26, 08 11:41 AM
  1. Peter: I have a piece of paper. that came with the property when we bought it. It says the unit is lead free. I assume this is the official Compliance Letter you're talking about, but I'll have to double-check that.

    If you're right that the previous owner (the renovator of the whole house) couldn't have gotten the letter without the common areas being lead-free, that's good news for me.

    Posted by accidental landlord June 26, 08 01:30 PM
  1. I think Accidental and Peter are arguing language, not substance. Accidental, I bet your place is "lead-safe" unless it was built later than 1978. It is rare to find older homes where no one ever used lead paint.

    I am going to check with my health department contact about whether a condo unit can be certified separately from the common areas.

    Posted by Rona June 26, 08 03:31 PM
  1. Rona: I dug up the letter. It's a "Letter of Lead Abatement Compliance" from an inspector. It says he inspected the place on such and such a date and all surfacess were found to be compliant with Mass Law, Chapter 111, etc. And then a "list" of areas (interior and exterior) where lead was "covered, encapsulated or reversed as a lead abatement method."

    I'd say I'm covered yes?

    Posted by accidental landlord July 2, 08 02:45 PM
  1. I read that as saying that the exterior areas where your child would be going in and out are in compliance. There may be other common areas with lead, but they are not in the path of your unit.

    An attorney could give you a legal opinion, but what you quote includes public space.

    My health department contact is on vacation...

    Posted by Rona July 2, 08 06:19 PM
  1. Of course, I wouldn't expect you to have the definitive legal answer, just asking your professional opinion. Thanks!

    Posted by accidental landlord July 3, 08 10:33 AM
  1. 1+ year later, if anyone can confirm the specific laws one more time, I'd appreciate it. I have searched on the Internet and haven't found anything more specific.

    This is specific to Massachusetts. Does the law state that the condo association/condo trust is responsible and will pay for all common area deleading that is required, including both interior common areas and exterior of the building, if currently only one unit has a child under 6 years of age? The interior of the condo unit with the child would of course be the responsibility of that condo unit's owner. The question is for the rest of the building which is all occupied by owners of the condo units (Condo Trustees).

    Posted by JZ October 28, 09 03:18 PM
 
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Scott Van Voorhis is a freelance writer who specializes in real estate and business issues.

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