Legal-Ease: Landlords, tenants and lead

Over time, our society has come to recognize that lead can be incredibly harmful, especially to children who are exposed to high levels of lead over significant periods of time.

Every landlord who is aware of lead-based paint or other lead-based items in houses or apartments to be rented must disclose that information to all potential and actual tenants.

Additionally, in renting out a home or apartment, a landlord must determine if the home or apartment was built before January 1, 1978.

If the home or apartment was built, even in part, prior to January 1, 1978 or if the landlord does not know the actual construction date, the landlord has several disclosure and contract responsibilities under federal law.

First, the landlord must provide each tenant with a 20-page pamphlet prepared by the United States EPA that is titled, “Protect Your Family From Lead in Your Home.” This form was most recently updated in March 2021.

Second, the landlord must complete and provide to the tenant a one-page form titled, “Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards.” This form identifies the landlord’s actual knowledge, if any, of lead or lead-based paint on the property. The landlord must disclose the results of any lead-based reports or inspections done in the past about which the landlord knows. This form must also include a paragraph of specific words called the “Lead Warning Statement”.

The Disclosure of Information form must be signed by both the landlord and the tenant, which the tenant signs and dates to confirm receipt of a copy of the form. If the landlord or tenant is represented by a real estate agent, the real estate agent must also sign the form acknowledging receipt of a copy of the form and confirming that the agent told the landlord about all of the federal lead paint disclosure requirements.

For homes or apartments built at any time, if a landlord becomes aware of a lead contamination concern, the landlord must abate, meaning remedy or remove, the contamination upon becoming made aware of the condition. Landlords will not be responsible for tenants’ lead-based injuries unless the landlord knew of the active contamination or “should have known of contamination”.

“Should have known” of contamination does not include landlords’ knowledge of peeling or cracking paint unless the landlord also knows that the property has lead paint or was built before 1978.

Thus, if a landlord who knows that there is or may be lead paint in the home or apartment, because of the property’s age, gets a complaint from a tenant about cracking or peeling paint, the landlord may be liable for eventual lead poisoning if the landlord does not immediately begin to remove or remedy the lead contaminating or releasing condition.

However, for homes and apartments built after 1978 in which the landlord has no actual knowledge of lead paint, a failure to remedy cracked or peeling paint reported by a tenant would not make a landlord liable for a tenant’s eventual lead poisoning resulting from that cracked or peeled paint.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.