Real Estate

Philadelphia's New Lead Paint Ordinance Is in Effect

, The Legal Intelligencer

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In late December, the Lead Paint Disclosure and Certification Law came into effect for residential landlords owning rental properties located in the city of Philadelphia. Under the city ordinance, many residential landlords will now be obligated to substantially modify the way they do business.

First of all, the ordinance does not apply to all such residential landlords. It does not pertain to residential landlords who own and operate dwelling units that are: built after 1978; housing individuals over the age of 6; housing college students at educational institutions or leased entirely to college students; owned or subsidized by the Philadelphia Housing Authority (PHA); or under what is commonly referred to as Section 8 housing, which is regulated by the U.S. Department of Housing and Urban Development (HUD).

Under pre-existing federal law, residential landlords and tenants are obligated to sign a lead disclosure form that identifies the risks associated with lead poisoning to young children and pregnant women and requires landlords to disclose the presence of known lead-based paint in the dwelling unit. Furthermore, residential tenants must receive the pamphlet titled "Protect Your Family From Lead in Your Home." Besides the federal lead disclosure form and pamphlet, under the ordinance, all residential leases must now contain the following statement: "Every lessee of any interest in residential property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavior problems and impaired memory. Lead poisoning also poses a particular risk to pregnant women. The lessor of any interest in residential real property is required to disclose to the lessee the presence or absence of any lead-based paint and/or lead-based paint hazards. A comprehensive lead inspection or risk assessment for possible lead-based paint and/or lead-based paint hazards is recommended prior to lease."

Under the ordinance, such a tenant must be provided with a copy of a certification prepared by a certified lead inspector demonstrating that the dwelling unit is either "lead free" or "lead safe."

A dwelling unit is deemed "lead safe" if it is "free of a condition that causes or may cause exposure to lead from lead-contaminated dust, lead-contaminated soil, deteriorated lead-based paint, deteriorated presumed lead-based paint, or other similar threat of lead exposure due to the condition of the property itself."

For the certification to be considered valid under the ordinance, the inspection for the dwelling unit must occur within 24 months from the commencement of the lease term.

To be deemed "lead free," the "interior and exterior surfaces of a property do not contain any lead-based paint and the property contains no lead-contaminated soil or lead-contaminated dust."

There is no termination date for certificates that demonstrate the dwelling unit is "lead free." However, the definition of "lead free" was changed with the ordinance. Earlier inspections did not take into consideration lead-contaminated soil or lead-contaminated dust, which is now taken into account when determining if a property is "lead free." Therefore, "lead free" certifications obtained before the enactment of the ordinance are of no legal consequence.

A copy of a certificate demonstrating the dwelling is either "lead safe" or "lead free" must be signed by the tenant and returned to the city of Philadelphia's Department of Public Health. Additionally, tenants must receive written notification advising them to perform visual inspections of all painted surfaces during the lease term. If the landlord is informed of any deteriorating paint surfaces, the landlord must promptly inspect and correct any defective conditions.

Tenants have the right to conduct an independent inspection before moving into the dwelling unit. Upon signing a lease, the tenant is given a 10-day period, unless the landlord and tenant agree in writing to different terms where the tenant at his or her own expense may obtain an inspection from a certified lead inspector. If the inspection reveals lead-based paint or lead-based paint hazards, the tenant may terminate the lease within two business days of receiving the inspection report with written notification. If the tenant fails to obtain an inspection within the 10-day timeframe, or fails to terminate the lease within two business days after receipt of an inspection report, the tenant effectively waives his right to terminate the lease.

In the event a tenant is already residing in the dwelling unit and has the option to renew the lease, the tenant is afforded the opportunity to obtain an independent inspection. The tenant has 10 days upon receipt of the inspection report to notify the landlord in writing of his or her intention to terminate the lease. If the tenant decides to terminate the lease, the tenant must vacate the premises within 90 days of receiving the inspection report, but the lease will remain in effect until that time.

Significant penalties attach when landlords fail to abide by the provisions of the ordinance. Fortunately, tenants who do not receive proper disclosure are required to notify the landlord in writing. The landlord then has 10 days to come into compliance with the ordinance. If the landlord fails to become compliant in that time period, the tenant may bring a court action to seek appropriate relief. Some of the remedies made available to tenants in the ordinance include a court order requiring the landlord to obtain the certification, performance of necessary work to make the property safe, damages for any harm caused by the failure to provide certification, exemplary damages not to exceed $2,000, abatement and refund of rent for any periods in which the dwelling unit was occupied without proper certification. It is thus extremely important to provide tenants with all pertinent information regarding lead-based paint at the beginning of the lease.

Stuart Udis, a student at Widener University School of Law, assisted in the preparation of this article. •

Alan Nochumson is the sole shareholder of Nochumson P.C., where his law firm's primary practice areas consist of real estate, litigation, employment and labor, and land use and zoning. He is also president of Bear Abstract Services, where his title insurance company offers comprehensive title insurance, title examination and closing services. He can be reached at 215-399-1346 or by email at alan.nochumson@nochumson.com.

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