What is a lead-based paint hazard?

Lead-based paint, defined as any surface coating containing at least 1.0 milligram per square centimeter of lead, or 0.5% lead by weight, was banned by the Federal Consumer Product Safety Commission in 1978. [24CFR §35.86; 40 CFR §745.103]

A lead-based paint hazard is any condition that causes exposure to lead from lead-contaminated dust, soil or paint which has deteriorated to the point of causing adverse human health effects. [24 CFR §35.86; 40 CFR §745.103]

Lead-based paint in application

An agent, prior to meeting with the seller to list an older single family residence (SFR) for sale, gathers facts about the property, its sellership and its likely market value.

At the first step, the agent pulls a property profile on the SFR from a title company. On receipt of the profile, the agent confirms their suspicion that the structure was built prior to 1978. The agent is now aware the property is the target of separate state and federal environmental protection disclosure programs designed to prevent the poisoning of children by the presence of lead-based paint.

The agent meets with the seller to review the requisite listing and marketing requirements laid down by the agent’s broker. To prepare for the meeting, the agent fills out the listing agreement and attaches all the information disclosure forms needed to properly market the property and locate a buyer, called a listing package.

Disclosed on two forms

Among other informational forms for this pre-1978 SFR property, the agent includes two forms which address lead-based paint conditions on the property:

  • the Federal Lead-based Paint (LBP) disclosure [See RPI Form 313]; and
  • the California Transfer Disclosure Statement (TDS). [See RPI Form 304]

On review of the listing agreement with the seller, the agent explains the seller’s legal obligation, owed to prospective buyers and buyer’s agents, to provide them with all the information:

  • known to the seller or readily available to the seller’s agent on observation or inquiry; and
  • which might adversely affect the value of the property.

A full disclosure to the prospective buyer about adverse conditions on the property does not entail a review or explanation by the seller’s agent about their effect on the buyer or the property once the facts are disclosed. Application of the facts disclosed and the potential consequences flowing from the facts which may affect the prospective buyer’s use, possession or sellership of the property are not among the seller’s agent’s duties of affirmative disclosure.

Seller’s agent insures compliance

Federal LBP rules do require the seller’s agent to advise the seller about the requirements for disclosures to be made to prospective buyers before they enter into a purchase agreement. It is the seller’s agent who insures compliance by the seller before entering into a purchase agreement.

Editor’s note – The seller has no obligation to have the property inspected or a report prepared on the presence of lead-based paint or any lead-based paint hazards. Also, the seller need not perform any corrective work to clean up or even eliminate the lead-based paint conditions, unless agreed to with the buyer. [24 Code of Federal Regulations §35.88(a); 40 CFR 745.107(a)]

Thus, the seller cooperates in the LBP disclosure and their agent’s other marketing efforts by:

  • filling out and signing the federal LBP disclosure form required on all pre-1978 residential construction [See RPI Form 313];
  • filling out and signing the TDS containing the lead-based paint, environmental and other property condition disclosures [See RPI Form 304];
  • making a physical home inspection report available to prospective buyers as an attachment to the TDS; and
  • providing the seller’s agent with copies of any reports or documents containing information about lead-based paint or lead-based paint hazards on the property.

LBP disclosure content

The LBP disclosure form includes the following:

  • the Lead Warning Statement as written in federal regulations [See RPI Form 313 §1];
  • the seller’s statement disclosing the presence of known lead-based paint hazards or the seller’s lack of any knowledge of existing lead-based paint [See RPI Form 313 §2];
  • a list of records or reports available to the seller which indicates a presence or lack of lead-based paint, which have been handed to the seller’s agent [See RPI Form 313 §2.2];
  • the buyer’s statement acknowledging receipt of the LBP disclosure, any other information available to the seller and the lead hazard information pamphlet entitled Protect Your Family From Lead in Your Home [See Form 313 §3.1; See RPI Form 316-1];
  • the buyer’s statement acknowledging the buyer has received a 10-day opportunity to inspect the property or has agreed to reduce or waive the inspection period [See RPI Form 313 §3.2];
  • the seller’s agent statement noting the seller has been informed of the seller’s disclosure requirements and that the agent is aware of their duty to ensure the seller complies with the requirements [See RPI Form 313 §4]; and
  • the signatures of the seller, buyer and seller’s agent. [24 CFR §35.92(a)(7); 40 CFR 745.11(a)(7)]

The seller and the seller’s broker each keep a copy of the disclosure statement for at least three years from the close of escrow on the sales transaction. [24 CFR 35.92(c); 40 CFR 745.113(c)]

Further, the disclosure form is to be written in the language of the purchase agreement. For example, if the purchase agreement is in Spanish, the LBP disclosure will also be in Spanish. [24 CFR §35.92(a); 40 CFR §745.113(a)]