INTERPRETIVE GUIDANCE FOR
THE REAL ESTATE COMMUNITY ON THE
REQUIREMENTS FOR DISCLOSURE OF INFORMATION
CONCERNING LEAD-BASED PAINT IN HOUSING
PART I PART H
August 20,1996 December 5,1996
Prepared by the
Office of Pollution Prevention and Toxics
U.S. Environmental Protection Agency
Washington, D.C. 20460
and
Office of Lead Hazard Control
U.S. Department of Housing and Urban Development
Washington, D.C. 20410
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NOTE: This document is a combination of two separate documents developed by the U.S.
Environmental Protection Agency and the U.S. Department of Housing and Urban Development.
Part I was issued on August 20,1996 and includes questions 1-28.
Part II was issued on December 5,1996 and includes questions 29-53.
The two documents should be read together, because some of the questions in Part II cover the
same topics and provide additional clarification of questions discussed in Part I.
The Interpretive Guidance documents and other lead information can be accessed electronically
as follows:
EPA's web site at http://www.epa.gov/opptintr/lead/index.html
HUD's web site at http://www.hud.gov/lea/leahome.html.
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INTERPRETIVE GUIDANCE FOR
THE REAL ESTATE COMMUNITY ON THE
REQUIREMENTS FOR DISCLOSURE OF INFORMATION
CONCERNING LEAD-BASED PAINT IN HOUSING
August 20,1996
Prepared by the
Office of Pollution Prevention and Toxics
U.S. Environmental Protection Agency
Washington, D.C. 20460
and
Office of Lead-Based Paint Abatement and Poisoning Prevention
U.S. Department of Housing and Urban Development
Washington, D.C. 20410
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TABLE OF CONTENTS
TOPIC QUESTION It
INTRODUCTION
EFFECTIVE DATE OF RULE
General 1,2
Sale Transactions 3
Rental Agreements . 4,5
APPLICABILITY
Housing - Pre-1978 6
0-Bedroom Dwellings 7
Disabilities 8
Daycare 9
DISCLOSURE
Co-ops and Condos 10
Authorized Representatives and Agents 11,12
Type of Documents
Summary vs. Reports 13, 14
Unit vs. Whole Building IS
Timing of Disclosure for Lessors 16, 17
Signatures on Disclosure Forms 18
LEAD-BASED PAINT FREE 19, 20, 21, 22
PAMPHLET ISSUES
Approval 23
Empty Space 24
Reproduction 25, 26, 27
STATE PROGRAMS 28
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INTERPRETIVE GUIDANCE FOR
THE REAL ESTATE COMMUNITY ON THE
REQUIREMENTS FOR DISCLOSURE OF INFORMATION
CONCERNING LEAD-BASED PAINT IN HOUSING
INTRODUCTION
On March 6,1996, the Environmental Protection Agency (EPA) and the Department of
Housing and Urban Development (HUD) published a final rule, "Lead; Requirements for
Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing," (61 FR
9064-9088). This final rule requires persons selling or leasing most residential housing built
before 1978 to provide purchasers and renters with a federally approved lead hazard
information pamphlet and to disclose known lead-based paint and/or lead-based paint hazards.
The specific requirements of the final rule are discussed in detail in the March 1996 notice.
Other documents used in the development of this rule are included in a public docket available
for inspection at EPA.
The requirements of the final rule are applicable as follows: (1) For owners of more
than four residential dwellings, the requirements are applicable beginning on September 6,
1996, and (2) For owners of one to four residential dwellings, the requirements are applicable
beginning on December 6,1996.
Subsequent to the publication of the final rule, EPA and HUD have received questions
from the real estate community about implementation of the rule. EPA and HUD have
developed this "Interpretive Guidance" document to supplement the information presented in
the final rule. This guidance will be expanded and updated as necessary.
To assist the general public, EPA and HUD made the document, "EPA and HUD Real
Estate Notification and Disclosure Rule: Questions and Answers" available when they
published the final rule. This document, EPA-747-F-96-001, March, 1996, and others may be
obtained from the National Lead Information Clearinghouse (NLIC) at (800) 424-LEAD, or
TDD(SOO) 526-5456 for the hearing impaired. Requests may also be sent by fax to (202) 659-
1192 or by Internet E-mail to ehc@cais.com.
DATE OF RULE
1. Q: What part of a sale or rental transaction must occur on or after the effective date for the
rule to apply?
A: The rule generally applies if the buyer or renter becomes obligated under a
contract to purchase or lease target housing on or after the effective date of the
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rule (September 6, 1996 or December 6, 1996, depending on the number of
dwelling units owned).
2. Q: What is the effective date for sale or rental transactions involving cooperatives ("co-
ops") and condominiums ("condos")?
A: EPA and HUD recognize that both the individual unit "owner" and the corporation
or homeowner association may have an ownership interest in co-ops and condos
(see answer to question # 10). However, EPA and HUD believe that when a co-op
or condo unit is sold or rented, the focus of the transaction is the single unit.
Therefore, as a matter of policy, EPA and HUD have determined that the effective
date will be based on the number of dwellings "owned" (meaning in some cases,
the number of co-op shares or condo units owned) by the individual seller or lessor
as opposed to the number of units that comprise the co-op or condo. Where co-ops
or condos are being directly sold or leased by the corporation (as hi a renovated
building being newly offered), however, the applicable date would depend on the
number of units owned by the corporation.
Sa|e Transactions
3. Q: Is the rule effective for sales agreements entered into before the effective date, where
closing occurs after the effective date?
A: The rule will not apply to target housing transactions where the sales agreement is
signed and all contingencies have been removed before the effective date, even if
closing occurs after the effective date.
4. Q: What is the effective date of the rule for the following situation? A real estate or
properly management firm represents 40 property owners who own four units each.
Each of the 40 property owners' effective date would clearly be December 6, 1996
(four or less units) if they were managing their own properties. However, because the
real estate or property management firm is managing 160 rental units (40x4) on behalf
of the owners, would they be subject to the September 6, 1996 effective date ?
A: The effective dates in the rule refer specifically to the number of residential
dwellings owned. Although the property manager is managing more than four
properties, each individual owner only owns four properties. Therefore, the
effective date for property managers of properties with four units each per owner
would be December 6, 1996.
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5. Q: In some cases, as in the New York City Rent Stabilization Law, owners must offer
renewal leases to rent-stabilized tenants 120 to 150 days before their current leases
expire. This 120-150 day period may occur prior to the September 6 effective date,
but the renewal lease could start after the September 6 effective date. Must an owner
include the disclosure forms with the 120-150 day offer of renewal, even though this
occurs before the effective date?
A: The rule applies to obligations made on or after the effective date. Thus, the date
upon which a renewal lease is offered is not particularly relevant under the rule.
It is the date that the offer is accepted, if such acceptance constitutes an obligation
to rent, that determines whether or not the rules apply. For written leases, this
would mean that regardless of when the renewal leases are offered to the tenant,
the rule would apply to all renewal leases signed by the tenant (and any
contingencies have been removed) on or after the effective date. The rule does not
apply to cases where the renewal leases have been signed by tenants (and
contingencies removed) prior to the effective date, even if the lease does not begin
until after the effective date.
APPLICABILITY
Hniising - Pre-1978
6. Q: Target housing is housing built before 1978. Does this include or exclude housing that
was started in 1977, but not completed until 1978?
A: EPA and HUD consider "housing constructed before 1978" to mean housing for
which a construction permit was obtained (or if no permit was obtained, housing
hi which construction was started) before January 1,1978.
0-Bedroom Dwellings
7. Q: Would "0-bedroom dwellings" include college fraternity and sorority houses, dormitory
suites, married student housing, and university-owned apartments?
A: The rule excludes "0-bedroom dwellings." The definition of "0-bedroom dwelling"
includes "rentals of individual rooms in residential dwellings," and EPA and HUD
believe that rentals of rooms in fraternity and sorority houses generally fit that
model and would be exempt. The definition of "0-bedroom dwelling" also
specifically includes dormitory housing, which would encompass typical dormitory
suites. However, married student housing and university-owned apartments
typically are not "0-bedroom dwellings" and would be covered by the rule if they
meet the other criteria for target housing set out hi the rule.
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Disabilities
8. Q: What is the definition of housing for persons with disabilities?
A: Housing for persons with disabilities means communities or similar types of
housing specifically designed for one or more persons with a physical or mental
impairment which substantially limits one or more major life activities at the time
of initial occupancy (HUD, Fan* Housing Accessibility Guidelines, 56 FR 9472,
3/6/91). However, the exclusion for persons with disabilities from the definition of
"target housing" does not cover housing hi which any child who is less than 6 years
of age resides or is expected to reside.
Daycare
9. Q: Are daycare centers included in the scope of the final rule?
A: Section 1018 of Title X focusses specifically on residential housing. As such, the
rule does not apply to commercial facilities such as daycare centers and nurseries,
except where such facilities are part of a residential dwelling.
DISCLOSURE
Co-ops and Condos
10.Q: Who is responsible for disclosure hi the case of co-ops or condos? What about
common areas?
A: EPA and HUD recognize that co-ops and condos can be structured in a variety of
ways. For example, hi the case of co-ops, a corporation may be established and
this corporation would own all the units and common areas comprising the co-op;
individual unit "owners" would own shares hi the corporation and might also own
occupancy rights or lease a unit from the corporation. In the case of condos,
individual condo unit owners may own then* unit; all condo unit owners may
jointly own the common areas and a homeowners association may be established to
represent the interests of all the unit owners.
Under this rule, a person selling or leasing a co-op or condo unit (whether the unit
owner owns the unit hi its entirety or owns shares hi a corporation) would be
responsible for complying with disclosure requirements both with respect to the
unit itself and to any associated interest hi common areas that is transferred. In
the case of a corporation or homeowner association owning an interest hi all the
units or common areas, the corporation or association would be responsible for
disclosing information regarding those areas when their interest hi them is sold or
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leased. Additionally, in the case of a corporation or homeowner association which
does not have an ownership interest in the co-op or condo but represents the joint
interests of all the unit owners, the corporation or association, acting as legal
representative of the owners (see also question #11), would be responsible for
disclosing information regarding the areas subject to the transaction. In such a
case, an individual seller or lessor is responsible for timely notifying the
corporation or association before a buyer or lessee becomes obligated, so that the
corporation or association has an opportunity to comply with disclosure
requirements.
Where the corporation or association is not a seller or lessor and is not a legal
representative of the owners, the corporation or association has no disclosure
responsibilities. However, in this case, the individual seller or lessor must obtain
any information held by the corporation or association and include it in the
disclosure to ensure compliance with this rule. Parties with the disclosure
responsibilities must also sign the disclosure form certifying accuracy.
Authorized Representatives and Agents
ll.Q: May a seller or lessor authorize a representative or agent to discharge the seller's or
lessor's responsibilities under the rule, including signing the certification of accuracy
required in the contract?
A: Yes. The seller or lessor may authorize a representative or agent to fulfill the
seller or lessor's requirements under this rule; however, the seller or lessor is
ultimately responsible for full compliance with the requirements of this rule. The
representative must disclose the presence of lead-based paint or lead-based paint
hazards if known by either the representative or the seller or lessor and disclose
and provide records available to the representative and the seller or lessor. The
designated representative or agent may sign on behalf of the seller or lessor. If the
representative or agent acting on behalf of the seller or lessor is also functioning as
an Agent, as defined under 24 CFR 35.86 and 40 CFR 745.103, they are also
required to carry out those duties and to sign the certification hi that capacity.
12.Q: Given that the selling agent in real estate transactions may be prohibited by State or
local law from direct communication with the seller, how can they inform the seller of
his or her responsibilities under this rule?
A: Where State or local laws prohibit direct contact, EPA and HUD have determined
that the selling agent may inform the listing agent of the seller's responsibilities
under this rule and may sign the disclosure form to that effect. Regardless of the
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actions or involvement of the selling agent, however, the listing agent is still
responsible for informing the seller of his or her duties under this rule.
Type of Documents
Summary vs. Reports
13.Q: The rule states that lessors must give each lessee copies of all records or reports
relating to lead-based paint hazards in the target housing. But in some cases it may be
impractical to give each lessee his or her own report — the document's length may
make copying costs prohibitively high. In such situations, what steps may a lessor take
to make the document available to a lessee without actually giving the lessee his or her
own copy? For example, may the lessor give the lessee a summary of the document
and give the lessee an opportunity to read a copy of the full document in the lessor's
office?
A: The rule requires lessors to provide lessees with available records or reports
pertaining to lead-based paint and/or lead-based paint hazards. However, EPA
and HUD recognize that hi some cases, the actual transfer of multiple voluminous
technical documents may be burdensome for both lessors and lessees.
For lengthy court documents and construction documents, EPA and HUD have
determined that these documents may be excerpted, provided that all information
regarding lead-based paint and lead-based paint hazards is included along with
sufficient background information, so that the context of the excerpt is dear.
For paint inspection and risk assessment reports, EPA and HUD have determined
that lessors may provide lessees with a summary of all paint Inspection and risk
assessment reports, provided that the summary is prepared by a certified paint
inspector or risk assessor. Where information about specific units is inconsistent
with the conclusions as a whole, this information should be included along with the
summary of general conclusions.
In situations where documents are excerpted or summarized, they must be
accompanied by a list of all complete records and reports available to the lessee. If
the lessor chooses to provide excerpts or summaries and document lists in lieu of
complete copies, the lessor must provide the lessee with the opportunity to review
the complete documents in a central location on the premises, if feasible, and the
opportunity to receive copies of any documents not provided, upon request, and at
no cost to the lessee.
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In the case of sales transactions, the seller must provide complete documents to the
buyer. In order to assure that future buyers have access to complete records and
reports, EPA and HUD believe that complete document transfer, rather than
excerpts or summaries, is necessary.
14.Q: What methods of distribution are available to a seller or lessor when providing copies
of relevant materials to a purchaser or lessee? May records and reports be provided
via the Internet?
A: While EPA and HUD recognize that electronic transfer may be acceptable to some
purchasers and lessees, the Agencies are concerned that relying exclusively on
electronic distribution may deny some purchasers or lessees access to the
information, due to the lack of access to the necessary technology. Therefore, EPA
and HUD would deem electronic transfer of documents acceptable only if the
purchaser or lessee agrees in writing to accept the documents hi that format.
Unit vs. Whole Building
15.Q: In cases where there have been building-wide evaluation or reduction activities, must
the contents of the reports be disclosed to every prospective purchaser or lessee of
individual units that may not have been specifically addressed?
A: EPA and HUD believe that information and reports on other units hi the target
housing are directly relevant to prospective purchasers and lessees, if the
information results from evaluation or reduction efforts hi the target housing as a
whole. In large multifamily properties, evaluations do not necessarily examine
every dwelling unit hi the housing. Rather, inspectors or risk assessors examine a
representative sample of the dwelling units and apply the findings to the housing as
a whole. While such evaluations might not include data on a specific unit, the fact
that the evaluation was designed to provide information on the housing as a whole
makes the report's findings relevant. If there is unit-specific information that was
not part of a building-wide evaluation, such information must be disclosed only
during sales or rentals of the specific units that were evaluated.
Timing nf Disclosure for Lessors
16.Q: If a renter has a month-to-month lease arrangement, what is the responsibility of the
owner (lessor) with respect to providing copies of the booklet and disclosure forms?
A: The rule excludes from its requirements short-term leases of 100 days or less,
where no lease renewal or extension can occur. If both parties wish to extend a
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previously exempted short-term lease beyond the 100-day limit, all provisions of
this rule must be satisfied hi full before any such "extension" occurs.
In an "open-ended" month-to-month lease arrangement (i.e., an arrangement with
no specified termination date), whether written or unwritten, the rule applies at
the time of the initial lease agreement, since the parties have not limited the lease
term to 100 days or less.
In some cases, leasing arrangements switch to "open-ended" month-to-month
arrangements after an initial period of occupancy and may continue indefinitely.
Under such circumstances, EPA and HUD interpret renewal to occur at the point
when the lessee becomes obligated to this change hi the rental period. Another
significant change hi the lease agreement constituting lease renewal would be a
rental rate adjustment. Following any such alteration of terms, either an initial
disclosure would be required if no disclosure had been made, or disclosure would
be required of any new information obtained subsequent to an initial disclosure.
17.Q: Can an owner send the disclosure forms to all existing tenants at one time, without
waiting for the tenants to renew their leases or must the owner wait for each tenant's
renewal to come up?
A: Disclosure may be made any time before the lessee becomes obligated under a new
lease (see response to question #18). However, if disclosure is made in advance of
lease renewal and the owner subsequently obtains new information relevant to
disclosure, this new information must be disclosed before the lessee becomes
obligated under a new lease.
Signatures on Disclosure Forms
18.Q: Is an original signature required on the disclosure form?
A: No. The signature does not have to be original for purposes of the Federal rule. It
may be reproduced, for example, by photocopy, facsimile, autopen or rubber
stamp. EPA and HUD note that use of a reproduced signature does not relieve the
signatory from its responsibility for compliance with this rule. Sellers and lessors
are advised to ascertain whether original signatures are required under State law
governing the execution of documents associated with sales or rental transactions.
LEAD-BASED PAINT FREE
19.Q: Can inspectors certified in one State perform inspections for the lead-based paint free
exemption in another State?
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A: Currently yes. An inspector certified to perform inspections in a State with its
own certification and training requirements may perform inspections for the lead-
based paint free exemption in that State and in other States. Inspectors are
advised, however, that separate State laws may also apply to their activities.
Within two years, a Federal program or authorized State program will be in place
to certify inspectors. After such Federal or authorized State program takes effect,
all inspections for purposes of the lead-based free exemption must be performed by
an inspector certified in the Federal or Federally-authorized program applicable in
the State where the inspection will take place.
20.Q: What sampling is required to support a determination of lead-based paint free? What
sampling criteria should be used when conducting a "surface-by-surface investigation"
in multi-family housing? Does Chapter 7 of the HUD Guidelines provide adequate
criteria regarding how many and what type of samples need to be taken, or are the
criteria to be used established by the State where the individual is certified?
A: The rule defines inspection as a (1) a surface-by-surface investigation to determine
the presence of lead-based paint, and (2) the provision of a report explaining the
investigation. Before EPA implements the Federal training and certification
program and the State authorization program under TSCA, certified inspectors
should use the sampling methodology provided by their certifying State for
determining what number of units must be inspected to have a representative
sample. If the State in which the inspector is certified does not provide a sampling
protocol, the inspector should either sample every unit hi multi-family housing or
use the sampling guidelines provided in Chapter 7 of the HUD's "Guidelines for
the Evaluation and Control of Lead-Based Paint Hazards hi Housing," (HUD
Guidelines), June, 1995 or subsequent updates.
21.Q: Do the States have the authority to alter the definition of lead-based paint in the rule
that will be used to apply the lead-based paint free exemption?
A: No. The rule, at 24 CFR 35.86 and 40 CFR 745.103, states that a lead-based paint
free finding must demonstrate that the building is free of "paint or other surface
coatings that contain lead equal to or hi excess of 1.0 milligrams per square
centimeter or 0.5 percent by weight." The State standards are not applicable,
whether more or less stringent, since a State cannot amend Federal requirements.
22.Q: Will lead-based paint free findings carry over once the EPA section 402/404 rule is
implemented or will reinspections be required in States, that do not have programs?
A: Prior to Federal or State implementation of section 402/404, reinspections will not
be required for target housing that was already inspected and found to be lead-
based paint free by a certified inspector. An inspection conducted prior to Federal
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or State implementation of section 402/404 requirements by a non-certified
inspector is acceptable if the past inspection report has been reviewed and
approved in writing by a certified inspector.
Once the Federal or authorized State programs take effect, all new inspections for
purposes of the lead-based free exemption must be performed by an inspector
certified in the Federal or Federally-authorized State program applicable in the
State where the inspection will take place. An inspection conducted prior to
Federal or State implementation of section 402/404 requirements by a non-certified
inspector will be acceptable, if the past inspection report has been reviewed and
approved in writing by an inspector certified in the Federal or Federally-
authorized State program applicable hi the State where the inspection took place.
PAMPHLET ISSUES
Approval
23.Q: Can private groups seek approval under section 1018 for use of alternatives to the
Federal pamphlet?
A: The rule provides flexibility for States to obtain EPA approval for use of
alternative State information materials in lieu of the Federal Pamphlet "Protect
Your Family From Lead hi Your Home." However, this pamphlet approval
process does not apply to private groups that seek to develop lead hazard
information materials.
EPA and HUD specifically included these State pamphlet provisions to minimize
the overlap between the Federal program and State laws and regulations that may
already require the distribution of State information materials during sales or
leasing transactions. While EPA and HUD cannot approve materials developed by
a private group as a national alternative to the Federal pamphlet, private groups
may ask States to consider using their pamphlets as a State alternative. States
interested hi developing an alternative pamphlet should contact their EPA regional
offices.
Empty Space
24.Q: The back page of the booklet contains an empty rectangular space at the bottom. Is it
permissible for an individual or private party, i.e. real estate firm, to place their name,
address, company logo or advertising material in this space?
A: In the Notice of Availability for the final pamphlet (60 FR 39168, August 1,1995),
EPA indicated that to encourage private reproduction of the pamphlet, space was
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added on the pamphlet's back cover for names and contact' information of
organizations that reprint and distribute the pamphlet.
Reproduction
25.Q: Do pages 12 (State Health and Environmental Agencies) and 13 (EPA Regional Offices
and CPSC Regional Offices) of the Federal pamphlet have to be included? When the
pamphlet is developed for use only in one State, the information on pages 12 and 13
may not be necessary.
A: Provided that the State and Federal regional information on the State developing
the pamphlet is retained, the printer can reformat the information on page 12 and
13 to omit information on other State and regional offices.
26.Q: If a private-sector party or association wishes to reproduce the pamphlet at its own
expense, do the graphic illustrations have to be included?
A: The pamphlet reproduced by a private organization must include all graphics
provided in the original.
27.Q: Can the pamphlet be provided in an 8-1/2 x 14 inch format as an attachment to the sale
or rental contract?
A: EPA has developed and made available an alternative format of the pamphlet on 8-
1/2 x 14 inch legal paper to accommodate sellers or lessors who wish to provide the
pamphlet as part of the contract. The attachment includes EPA's and HDD's
sample disclosure and acknowledgement forms. Provided that the seller or lessor
adds the appropriate regional and state contacts in the space provided, the legal
size format may be used as an alternative to the 5-1/2 x 8-1/2 inch version of the
pamphlet. The public may also revise the included sample disclosure and
acknowledgement forms provided that the forms contain all the elements set out in
the content requirements in 24 CFR 35.92 and 40 CFR 745.113. These materials
may be obtained from the NLIC (see Information section of this document).
STATE PROGRAMS
28.Q: Can States obtain authorization to administer and enforce their disclosure programs in
lieu of the Federal program?
A: No. EPA and HUD have determined that Title X does not provide authority to
delegate the administration and enforcement of the section 1018 disclosure
requirements to State programs. However, EPA and HUD believe that Title X
provides flexibility to EPA to approve State alternatives to the Federal pamphlet.
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Additionally, the rule does not require the use of a Federal'disclosure form as an
attachment to sales and leasing contracts. States, sellers, landlords, and agents
have flexibility to draft disclosure and acknowledgement attachments to fit their
needs, provided that the attachments address the content requirements laid out hi
24 CFR 35.92 and 40 CFR 745.113.
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INTERPRETIVE GUIDANCE FOR
THE REAL ESTATE COMMUNITY ON THE
REQUIREMENTS FOR DISCLOSURE OF INFORMATION
CONCERNING LEAD-BASED PAINT IN HOUSING
PART II
December 5,1996
Prepared by the
Office of Pollution Prevention and Toxics
U.S. Environmental Protection Agency
Washington, D.C. 20460
and
Office of Lead Hazard Control
U.S. Department of Housing and Urban Development
Washington, D.C. 20410
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TABLE OF CONTENTS
TOPIC QUESTION #
INTRODUCTION
EFFECTIVE DATE OF RULE 29
APPLICABILITY
Trusts 30
Gifts 31
Housing in Lieu of Compensation 32
Mobile Homes 33
Rehabilitated Property 34
DISCLOSURE
Who Must Disclose 35,36,37
What Must Be Disclosed 38,39,40,41,42
Disclosure Process 43,44,45,46,47
LEAD-BASED PAINT FREE HOUSING 48,49
INSPECTIONS
Auctions 50
Certified Inspectors 51
PAMPHLET ISSUES 52,53
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INTERPRETIVE GUIDANCE FOR
THE REAL ESTATE COMMUNITY ON THE
REQUIREMENTS FOR DISCLOSURE OF INFORMATION
CONCERNING LEAD-BASED PAINT IN HOUSING
PARTH
INTRODUCTION
On March 6,1996, the Environmental Protection Agency (EPA) and the Department of
Housing and Urban Development (HUD) published a final rule, "Lead; Requirements for
Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing," (61 FR
9064-9088). This final rule requires persons selling or leasing most residential housing built
before 1978 to provide purchasers and renters with a federally approved lead hazard information
pamphlet and to disclose known lead-based paint and/or lead-based paint hazards. The specific
requirements of the final rule are discussed in detail in the March 1996 notice. Other documents
used in the development of this rule are included in a public docket available for inspection at
EPA.
The requirements of the final rule are applicable as follows: (1) For owners of more than
four residential dwellings, the requirements were applicable beginning on September 6,1996,
and (2) For owners of one to four residential dwellings, the requirements are applicable
beginning on December 6,1996.
Subsequent to the publication of the final rule, EPA and HUD have received questions
from the real estate community about implementation of the rule. EPA and HUD developed the
first "Interpretive Guidance" document, dated August 20,1996, containing questions 1-28, to
supplement the information presented in the final rule. EPA and HUD have developed this Part
II of the "Interpretive Guidance" to answer additional questions received from the real estate
community. This guidance will be expanded and updated as necessary.
The August 20,1996 Interpretive Guidance, and other support documents, may be
obtained from the National Lead Information Clearinghouse (NLIC) at (800) 424-LEAD, or
TDD(SOO) 526-5456 for the hearing impaired. Requests may also be sent by fax to (202) 659-
1192 or by Internet E-mail to ehc@cais.com. The Interpretive Guidance documents and other
lead information can also be accessed electronically as follows:
EPA's web site at http://www.epa.gov/opptuitr/lead/uidex.html
HUD's web site at http://www.hud.gov/lea/leahome.html.
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EFFECTIVE DATE OF RULE
29. If a contract is signed before the effective date of the rule but contingencies are satisfied
after the effective date, would the contract be subject to the disclosure requirements of the
rule?
EPA and HUD wish to clarify the discussion of the point of obligation as it relates to
contingencies in questions numbered 3 and 5 in the August 20,1996 document for
sellers and lessors. Only contracts or leases signed on or after the effective date are
subject to the rule. Contracts signed before the applicable effective date are not
subject to the requirements, even if they have contingencies that are satisfied or
otherwise lifted after the effective date or the closing occurs after the effective date.
This is because the terms and conditions of the contract were negotiated, agreed
upon, and endorsed by the parties before the 1018 rule became effective, and the
rule cannot be applied retroactively to require a change in those terms and
conditions.
APPLICABILITY
Trusts
30. In the rule, the term "owner" is defined to include trusts. However, trustees are not
specifically listed as "owners." Are trustees intended to be exempt from the rule
requirements? In the case of a trust, which party (the beneficial owner or the trustee) is
expected to comply with the rule?
In cases where a trustee has been given authority to sell or lease target housing by a
beneficial owner, the trustee would have the responsibility to comply with the
requirements of this rule. Otherwise, the responsibility would rest with the
beneficial owner. In both cases, the effective date for compliance would be
determined by the number of units owned by the beneficial owner involved in the
particular transaction.
Gifts
31. Does the rule cover owners who give property away, i.e., there is no sale or exchange of
money or other consideration?
No. The rule does not cover a situation where property is transferred as a gift.
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Housing in lieu of compensation
32. Is housing that is provided in lieu of monetary compensation included in the rule?
Yes. Housing that is provided in lieu of monetary compensation to employees,
pastors, etc. is not exempt.
Mobile homes
33. Are mobile homes included in the definition of "target housing" under the disclosure
rule?
Yes. Mobile homes (manufactured housing) built before 1978 are included in the
definition of "target housing*1. Although these units may have been constructed
largely of pre-finished materials, some surfaces, both ulterior and exterior, may
have been painted with lead-based paint Therefore, EPA and HUD cannot exempt
mobile homes as a class. Houseboats, recreational vehicles, etc. are not considered
"target housing."
Rehabilitated property
34. Is a pre-1978 residential property subject to the rule if the property has been completely
rehabilitated, such that all pre-1978 painted components have been removed or replaced
after 1977?
EPA and HUD will consider amending the disclosure rule to exempt residential
properties in which all interior and exterior architectural components, such as
doors, windows, walls and all other painted surfaces (including any outbuildings,
fences, signs, etc) that were painted prior to December 31,1977 have been removed
or replaced after December 31,1977.
DISCLOSURE
Who Must Disclose
Co-ops and condos
35. Who is responsible for disclosure in the case of cooperatives or condominiums ("co-ops
or condos")? What about common areas?
This question originally appeared as number 10 in the "Interpretive Guidance"
document dated August 20,1996. EPA and HUD recognize that the response to
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question 10 was confusing and, upon further reflection, now offer the following
guidance in lieu of the response to question 10.
Under the final rule implementing Section 1018, the disclosure responsibility rests
with the owner(s) of the target housing which is being sold or leased. Generally, the
"owners" in co-op and condo arrangements are the persons who purchase shares in
the co-op and possess occupancy rights to individual units or purchase a condo unit
and a percentage of the common area, or lease individual units from the co-op or
condo. The co-op corporation or condo association represents the joint interests of
these owners. EPA and HUD believe that, in such situations, the responsibility for
disclosure regarding the unit being sold or leased should reside with the individual
owners of the unit. This responsibility also includes disclosure of information
concerning common areas.
Lead-based paint information, particularly regarding common areas, may not be in
the hands of the individual owners. In such cases, it may be administratively more
efficient for individual owners to arrange for disclosure of information through the
corporation or association. But in no instance should information held by the
corporation or association be withheld, as it is considered known information held
by the individual owners or reasonably obtainable by the owners, i.e. the
corporation or association simply holds such information for the benefit of the
individual owners and in no way does the representative arrangement shield the
individual owners from disclosure responsibility.
On occasion, a co-op or condo association, rather than an individual unit owner,
may possess occupancy rights (however denominated) to a unit being transferred at
the point of transfer. In these cases, the co-op or condo association, rather than a
unit owner, must comply with the disclosure requirements of the rule.
In co-op arrangements where owners purchase shares and also lease access to
individual units from the co-op, EPA and HUD consider the purchase of shares to
be the primary transaction for purposes of the disclosure rule. Therefore, in those
cases, EPA and HUD do not consider the co-op to be a lessor and the individual unit
"owner" to be'the lessee and would not impose separate disclosure requirements on
the co-op as lessor under this rule.
Timeshares
36. Who must disclose in sales or leases involving timeshares?
Timeshares, like co-ops and condos, can be structured in a variety of ways.
Nevertheless, the owner(s) of a timeshare must disclose in any sale or lease of the
timeshare, if the unit qualifies as target housing. Thus, as with all sales or leases
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under the final rule, the disclosure responsibility rests with the owner(s) of the
target housing who is selling or leasing a timeshare, and such an obligation is not
affected by multiple-ownership arrangements.
Owners who are selling or leasing a timeshare should disclose any information they
have about the presence of lead-based paint or lead-based paint hazards in the
timeshare. In this case, EPA and HUD would consider "reasonably obtainable"
records to include those records retained by the management company for the
timeshare.
Owners of timeshares who lease the unit should note the relief from disclosure
responsibility provided in 24 CFR § 35.82(c) and 40 CFR § 745.101(c). These
provisions exclude short-term leases of 100 days or less, where no lease renewal or
extension can occur, from coverage under the final rule. In the case of timeshares,
EPA and HUD have interpreted this exclusion to mean leases of 100 consecutive
days per visit.
New owners
3 7. Does the purchase of a rental unit require the new owner (buyer), who has received
disclosure, to disclose that information to the current renter?
In this situation, disclosure is required only if there is a new lease or when renewal
of the lease takes place. If there is a significant change in the lease, i.e., a new owner
decides to change the name on the lease or the amount of rent is changed, this
constitutes renewal, and disclosure of any information not previously disclosed
should take place at that time.
What Must Be Disclosed
Property
38. Does the disclosure requirement extend to garages, tool sheds, other outbuildings, signs,
fences, and mechanical equipment on the property?
Yes, if these items are affixed to the residential portion of the property. The Lead
Warning Statement required by the statute states that the purchaser is notified that
the residential real property may present exposure to lead. Thus, disclosure of
known lead-based paint or lead-based paint hazards associated with any items that
are affixed to the property must be made. However, because section 1018 is limited
to contracts for sale or lease of housing, the regulations apply only to those items
that are located on that part of the real property that is used primarily for purposes
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associated with residential use. EPA and HUD consider garages for personal
vehicles, storage sheds, play areas and play equipment, air conditioners, storage
tanks for home fuel, yards, driveways, fences and signs to be examples of items that
are associated with residential use, in addition to structures actually used by people
as living quarters. For most urban and many suburban residential lots, the entire
property is normally considered as being devoted to residential use. In the case of
real property that is used for nonresidential as well as residential purposes, a
judgment should be made as to which part of the property is used primarily for
residential purposes.
Mini-blinds
39. If a home has lead-containing non-glossy vinyl mini-blinds, must this be disclosed to
fulfill the 1018 disclosure requirements?
No. For purposes of section 1018, lead-containing mini-blinds in and of themselves
are not a lead-based paint hazard and their mere presence need not be disclosed.
The lead in lead-containing non-glossy mini-blinds is not a component of paint or
any other surface coating and, therefore, does not fall within the definition of "lead-
based paint" under 24 CFR § 35.85 and 40 CFR § 745.103. Further, because a
"lead-based paint hazard" as defined under 24 CFR § 35.85 and 40 CFR § 745.103
is a condition that causes exposure to lead in paint, or lead-contaminated dust or
soil, the lead in mini-blinds could not constitute a lead-based paint hazard by virtue
of its presence in the mini-blinds. However, if the lead stabilizer in lead-containing
mini-blinds breaks down into dust, it could contribute to lead contaminated dust
and, therefore, could become a lead-based paint hazard which would have to be
disclosed. Lead-contaminated dust, by definition, means dust with lead above
certain levels regardless of the source.
Home test kits
40. EPA's pamphlet "Protect Your Family from Lead in Your Home" states that recent
studies suggest that home test kits for lead are not always accurate, and that consumers
should not rely on home test kits to assure safety. Therefore, does the use of home test
kits for lead constitute knowledge of lead-based paint for disclosure purposes?
Yes. If an owner has information obtained from the use of a home test kit for lead,
that information must be disclosed; however, the owner should also disclose
information about the reliability of the test kit results.
Information subject to disclosure
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41. Must records/reports involving lead-based paint or lead-based paint hazards that no
longer exist be disclosed?
Yes. Lessors and sellers are obligated to disclose all known information, including
information which shows that the lead-based paint or lead-based paint hazards have
been corrected. Section 1018 provides for disclosure of any available lead hazard
evaluation reports, and the rule requires the disclosure of the existence of any
available records or reports pertaining to lead-based paint or lead-based paint
hazards.
Existing summaries
42. When lessors provide a summary of an inspection report or risk assessment, in lieu of a
full report, may they use a summary prepared before the effective date of this rule?
Yes. A summary prepared prior to the effective date of the section 1018 rule may be
used in lieu of a paint inspection or risk assessment report, since the rule cannot be
applied retroactively to summaries done before the rule. In question #13 of the
August 20,1996 Interpretive Guidance Document, EPA and HUD discussed
generally how lessors may provide summaries in lieu of complete inspection and risk
assessment reports.
Disclosure Process
Disclosure for****
43. May sellers, lessors, and agents develop their own disclosure forms?
Sellers, lessors, and agents may develop their disclosure forms as long as the forms
meet the requirements of 24 CFR § 35.92 and 40 CFR § 745.113. Persons
developing disclosure forms are advised to determine whether they must meet
additional state requirements before finalizing their forms. For example, hi some
states, licensed real estate agents must have forms which they develop approved by
an attorney before any forms may be used as part of a real estate transaction.
Type size
44. How large must the type size be for the Lead Warning Statements included on the
disclosure forms?
The type size of the Lead Warning Statements must be as large or larger than the
predominant type size on the disclosure form. This is illustrated in the sample
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disclosure forms included in the preamble to the final rule (60 FR 9074-75, March 6,
1996).
42 U.S.C. 48S2d
45. The regulations at 24 CFR § 35.92(a)(6)(i) and (b)(5)(i) and 40 CFR § 745.113(a)(6)(i)
and (b)(5)(i) require agents to sign the disclosure forms, indicating that they have
informed sellers or lessors of their obligations under 42 U.S.C. 4852d. What does 42
U.S.C.4852d refer to?
The citation 42 U.S.C. (United States Code) 4852d is the authority under which the
section 1018 disclosure rule was written. Therefore, the agent is certifying that the
seller or lessor has been informed of the requirements of the statute as implemented
by the final rule.
Some copies of the sample disclosure forms that have been distributed have
incorrectly listed the citation as 42 U.S.C. 4582d. EPA and HUD have corrected
subsequent versions of the sample disclosure forms, but are aware that some
persons may still be using copies of the forms containing the incorrect cite.
Multiple lessees
46. How many lead information pamphlets must be distributed in a lease transaction
involving multiple lessees? In college towns, large living units are frequently rented on a
yearly basis by groups of students, all of whom are required to sign as lessees. In those
cases, must each individual lessee be given a pamphlet, or can one copy be provided per
lease transaction?
Lessors must provide one copy of the pamphlet per lease transaction; however, in
cases involving multiple lessees, lessors should make additional copies of the
pamphlet readily available and offer them to everyone who signs the lease.
Lessee refusal to sign
47. How do lessors fulfill their disclosure requirements when lessees refuse to accept the lead
information pamphlet and/or refuse to sign the disclosure forms?
When a lessee is unavailable for signature or refuses to accept the pamphlet and/or
sign the disclosure form, lessors may certify attempted delivery of the pamphlet,
disclosure information, and disclosure form. This certification may be included on
the copy of the disclosure form retained by the lessor or attached to that disclosure
form and should indicate exactly how delivery was attempted and what occurred
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(e.g., sent material certified mail and never heard from lessee; lessee refused to sign
disclosure form).
For example, lessors may deliver the pamphlet, disclosure information, and
disclosure form by certified .mail, return receipt requested. Lessors should then
retain the signed certified mail receipt in their records as evidence that the material
was delivered to the lessees. In cases where the lessee refuses to sign the disclosure
form, lessors may certify in writing that the delivery was attempted and indicate
why a signed and dated disclosure form could not be obtained.
LEAD-BASED PAINT FREE HOUSING
Recordkeeping for exemption
48. What type of paperwork should a rental property owner maintain to prove that the
property is lead-based paint free? Should the inspector or risk assessor provide a
lead-based paint free certificate, or a letter to the owner?
A rental property owner should maintain a copy of the inspection report that is
prepared by a certified inspector and indicates there is no lead-based paint in or on
the target housing hi order to prove that the property is lead-based paint free.
Abatement
49. If I own a number of pre-1978 homes which I lease to the public, and I "abate" them
through encapsulation and/or enclosure, can I take advantage of the lead-based paint free
exemption?
The regulations at 24 CFR § 35.82(b) and 40 CFR § 745.101(b) exclude from
coverage leases of target housing that have been found to be lead-based paint free by
an inspector certified under the Federal certification program or under a federally
accredited State or tribal program. Lead-based paint free housing is target housing
that has been found to be free of paint or other surface coatings that contain lead
equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.
Lead-based paint that has been encapsulated or enclosed would not result in a
finding by a certified inspector that the target housing Is free of lead-based paint.
Therefore, the lead-based paint free exemption would not be available to excuse a
lessor from the disclosure requirements under the final rule.
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INSPECTIONS
Auctions
50. How does the 10 day inspection period apply to real estate sold at auctions? Real estate
auctions take place at a set time and set place. Typically, there is a period of "due
diligence" prior to the auction when all potential buyers are permitted to view the
property, ask any questions and conduct any testing, such as a termite inspection or a test
of structural soundness. Would it be permissible for the seller to give potential buyers
any information on lead-based paint and allow lead-based paint inspections during this
period as well?
Prior to an auction not associated with a foreclosure proceeding (which would be
exempted under the rule), there is typically a period of "due diligence" that allows
all potential buyers to view the property, ask any questions and conduct any testing,
such as a termite inspection or a test of structural soundness. EPA and HUD have
determined that during this due diligence period, the seller may give potential
buyers any information on lead-based paint, allow lead-based paint inspections, and
otherwise comply with this rule.
EPA and HUD are considering the appropriate way to address auctions lacking a
"due diligence" period.
Certified Inspectors
51. Where can I find a certified inspector or information on certified inspections?
HUD has a current list of certified inspectors available electronically. HUD's
website address is http://www.hud.gov/lea/leahome.html. EPA is in the process of
developing a pamphlet entitled "Finding a Qualified Lead Professional for Your
Home" (EPA-747-F-96-006), which will assist owners in asking appropriate
questions when hiring professional to do this work. This information will be
available in the near future from the National Lead Information Clearinghouse
(NLIC) (see information in Introduction).
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PAMPHLET ISSUES
Information changes
52. Has any of the information in the Federal pamphlet changed?
Yes. Some of the telephone numbers for State agencies have changed. The
following list provides the status of numbers only for States which have had
changes. If a state is not listed below, the phone number listed in the pamphlet
remains the primary contact number.
State
Alabama
Alaska
Arizona
Connecticut
Hawaii
Idaho
Illinois
Indiana
Iowa
Kentucky
Louisiana
Massachusetts
Minnesota
Mississippi
Missouri
Montana
Nebraska
New Mexico
New York
North Carolina
Oklahoma
Pennsylvania
Tennessee
Virginia
Washington
Wisconsin
Phone as listed
205-242-5661
907-465-5152
602-542-7303
203-566-5808
808-832-5860
208-332-5544
800-972-2026
317-382-6662
800-972-2026
502-564-2154
504-765-0219
800-532-9571
612-627-5498
601-960-7463
314-526-4911
406-444-3671
402-471-2451
505-841-8024
800-458-1158
919-715-3292
405-271-5220
717-782-2884
615-741-5683
800-523-4019
206-753-2556
608-266-5885
Status of phone line
Change to 334-613-5373
Also 907-745-3236
Change to 602-230-5830
Change to 860-509-7299
Also 808-586-5800
Change to 208-334-6584
Not accessible from outside state
Change to 317-232-8219
Not accessible from outside state
Also 502-564-4537
Also 504-765-2547
Not accessible from outside state
Abo 612-215-0890
Also 601-961-5011
Also 800-575-9267
Also 406-444-5267
Typo 402-471-2541
Change to 505-768-4390
Not accessible from outside state
Also 919-715-5381
Change to 405-290-8247
Change to 717-783-8451
Also 615-532-7778
Not accessible from outside state
Change to 360-753-3855
Change to 608-266-5817
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Different formats
53. Is the Federal pamphlet, "Protect Your Family from Lead in Your Home" available in
different versions?
Yes. See the list below for information about the availability of both the Federal
pamphlet and sample disclosure forms from various sources.
1018 DOCUMENT AVAILABILITY
PAMPHLET - "PROTECT YOUR FAMILY FROM LEAD IN YOUR HOME*
(1) 3-Color, 8.5 x 5.5", in English or Spanish
(2) B&W, 8.5 x 11", "double sided double", in English or Spanish
(3) 3-Color or B&W, 8.5 x 5.5", "Internet single sided on 11" paper",
in English or Spanish
(4) B&W, 8.5 x 14", "quad version", hi English or Spanish
(includes sample disclosure forms for rental & sales)
SAMPLE LEAD DISCLOSURE FORMS
(5) 8.5 x 11", for rental leases, in English or Spanish
(6) 8.5 x 11", for home sales, in English or Spanish
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SOURCE
Single copies of (1) available free from;
National Lead Information Clearinghouse (NLIC)
Phone: 800-424-LEAD
Fax:202-659-1192
Multiple copies of (1) available from:
U.S. Government Printing Office
Phone: 202-512-1800
$26.00 for 50 copies
Printable electronic files of (3) through (S\ available from;
Internet at Internet address: http://www.epa.gov/lead-pm
Available for loan to public from the U.S. EPA;
Color separated negatives of (1)
B&W camera ready copy of (2), (4)-(6)
FAX to U.S. EPA at 202-260-0770
Attention: 1018 Lead Document Control Officer
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