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 #
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 15
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.
EFFECTIVE DATE OF RULE
General
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 rule
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(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 in a renovated
building being newly offered), however, the applicable date would depend on the
number of units owned by the corporation.
Sale 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.
Rental Agreements
4. Q: What is the effective date of the rule for the following situation? A real estate or property
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
Housing - 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 in
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 in the rule.
Disabilities
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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, Fair 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 in 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 in 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, in 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 in 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 their 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 in its entirety or owns shares in a corporation) would be
responsible for complying with disclosure requirements both with respect to the unit
itself and to any associated interest in common areas that is transferred. In the case
of a corporation or homeowner association owning an interest in all the units or
common areas, the corporation or association would be responsible for disclosing
information regarding those areas when their interest in them is sold or 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
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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
11 .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 in 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
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.
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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 in 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 clear.
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.
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.
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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 in 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 in the target
housing are directly relevant to prospective purchasers and lessees, if the
information results from evaluation or reduction efforts in the target housing as a
whole. In large multifamily properties, evaluations do not necessarily examine every
dwelling unit in 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 of 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 previously
exempted short-term lease beyond the 100-day limit, all provisions of this rule must
be satisfied in 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
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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 in the rental period. Another
significant change in 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?
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
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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-surf ace 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 in 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 in 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 in 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 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
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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 in 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 in 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
in 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
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
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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 HUD'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.
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 in 24 CFR
35.92 and 40 CFR 745.113.
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