Lead based paint Seller knew and did not disclose
Philip HernandezPro Member
Rental Property Investor · Member since 2021 · 37 posts · 20 votesLead based paint Seller knew and did not disclose
Most Popular Reply
Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes
3ythis is--complicated.
1) I don't know CA but MA has some of the strictest lead laws in the nation so it may be comparable. You may be looking at "strict liability" meaning any kid in that apartment that has elevated lead levels can hold you responsible, they don't have to prove that it was from the house and indeed it very likely wouldn't be.
2) with the tenants aware of this and needing it remediated you are going to have to do so, pretty much immediately if there is a kid in there or about to be. In MA I think you have 90 days before your liability kicks in. Don't quote, me this is from memory and I'm not a lawyer...but its something like that. This is going to be true even if your seller is provably at fault and you can hold them financially responsible. It is your problem now. Oh by the way, this often applies to any child under 6 just visiting :)
3) First call to a lead remediation company which can examine and make recommendations. Its not always grotesquely expensive. There is interim control, painting only certain areas etc. often around door frames and older windows...but it can be tens of thousands of dollars in a worst case scenario.
4) Second call to a qualified attorney who specializes in this area. Pay him/her, do not go cheap and find a generalist or a brother in law or what have you. Let them guide you.
5) Get moving quickly on both ends (the remediation and the attorney) immediately and my gut is you will be able to hold the seller accountable. This is one of those rare areas where it can be pretty cut and dried and in their best interest to provide you some financial relief. And they are flush from the sale now as well.
You never know, it might be a long ago citation for a minor thing that was painted over and this will be a trifle, but....
6) Get the tenants on your side by doing everything within deadlines and keeping them in the loop. Its going to matter. FYI you will likely be responsible for providing them housing during the entire remediation process, short or long.
7) Seriously, people have many ways of dealing with this before its a documented issue, but once it is public it has to be handled properly. You are tremendously exposed. It may be next to nothing but don't be shocked if the bill is all out of keeping with what you think of as the scope of work. The company performing the work takes on the liability and they are going to charge you for it. DO NOT get the same work done by an uncertified company even if its just as good...it doesn't cover you and will hurt your resale value.
8) I'm writing this from a liability perspective. The medical issues surrounding actual lead poisoning are devastating and you have a moral obligation to deal.
9) I'm talking about liability more than health because we all grew up in houses with lead paint and actual poisoning was rare. And even pre 78 houses have had so many renovations stuff is often buried under layers of changes and isn't a practical problem with reasonable parenting and reasonable maintenance. This cuts both ways though--for something to be elevated to public record means it often gets heightened attention.
10)'acceptable' levels have been lowered and lowered and so even though kids may not have had major exposure as youths the standard is much different now. Acceptable levels have ranged from 20s and are now at 2-4 to give you an idea of how different things are now.
Good luck, do not panic, but face head on and quickly
41 Replies
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3y
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3y
Above was part of the purchase and sale agreement, but no box where he declared that he either knew (which he did) or did not know about the lead based paint
- Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes3y
this is--complicated.
1) I don't know CA but MA has some of the strictest lead laws in the nation so it may be comparable. You may be looking at "strict liability" meaning any kid in that apartment that has elevated lead levels can hold you responsible, they don't have to prove that it was from the house and indeed it very likely wouldn't be.
2) with the tenants aware of this and needing it remediated you are going to have to do so, pretty much immediately if there is a kid in there or about to be. In MA I think you have 90 days before your liability kicks in. Don't quote, me this is from memory and I'm not a lawyer...but its something like that. This is going to be true even if your seller is provably at fault and you can hold them financially responsible. It is your problem now. Oh by the way, this often applies to any child under 6 just visiting :)
3) First call to a lead remediation company which can examine and make recommendations. Its not always grotesquely expensive. There is interim control, painting only certain areas etc. often around door frames and older windows...but it can be tens of thousands of dollars in a worst case scenario.
4) Second call to a qualified attorney who specializes in this area. Pay him/her, do not go cheap and find a generalist or a brother in law or what have you. Let them guide you.
5) Get moving quickly on both ends (the remediation and the attorney) immediately and my gut is you will be able to hold the seller accountable. This is one of those rare areas where it can be pretty cut and dried and in their best interest to provide you some financial relief. And they are flush from the sale now as well.
You never know, it might be a long ago citation for a minor thing that was painted over and this will be a trifle, but....
6) Get the tenants on your side by doing everything within deadlines and keeping them in the loop. Its going to matter. FYI you will likely be responsible for providing them housing during the entire remediation process, short or long.
7) Seriously, people have many ways of dealing with this before its a documented issue, but once it is public it has to be handled properly. You are tremendously exposed. It may be next to nothing but don't be shocked if the bill is all out of keeping with what you think of as the scope of work. The company performing the work takes on the liability and they are going to charge you for it. DO NOT get the same work done by an uncertified company even if its just as good...it doesn't cover you and will hurt your resale value.
8) I'm writing this from a liability perspective. The medical issues surrounding actual lead poisoning are devastating and you have a moral obligation to deal.
9) I'm talking about liability more than health because we all grew up in houses with lead paint and actual poisoning was rare. And even pre 78 houses have had so many renovations stuff is often buried under layers of changes and isn't a practical problem with reasonable parenting and reasonable maintenance. This cuts both ways though--for something to be elevated to public record means it often gets heightened attention.
10)'acceptable' levels have been lowered and lowered and so even though kids may not have had major exposure as youths the standard is much different now. Acceptable levels have ranged from 20s and are now at 2-4 to give you an idea of how different things are now.
Good luck, do not panic, but face head on and quickly
- Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes3y
@Philip Hernandez I think I connected on this thread after the original post but in any case glided over your statement that you were already on it and having specialists deal. Bravo and my apologies for telling you something you clearly already know. Hopefully it will be of help to someone in the future.
I bet this is worth pursuing legally and would be very curious about updates, public or PM. Cool profile by the way and good luck keeping on building!
- 3yBruce WoodruffPro MemberContractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
How much money are you going to be out...and how much money do you want to spend? At some point you have to forget what is right/wrong and just go by what is easy and quick for you. Your time is money....
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3y
Quote from @Bruce Woodruff:
How much money are you going to be out...and how much money do you want to spend? At some point you have to forget what is right/wrong and just go by what is easy and quick for you. Your time is money....
we’re waiting on some reports from the city, won’t be able to get bids until then. Could be anywhere from 5k-25k
- 3yBruce WoodruffPro MemberContractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
$5k, I'd pass...$25k, I'd go after them. They have no leg to stand on.
- Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes3y
might be demand letter time, especially if over 10K? Please do share what you can of the attorney opinion. We have been around this issue a bit and our old attorney had a practice in plaintiff lead law.
Personal opinion is they would be fools not to settle on something reasonably quickly but I used attorneys for a reason--the reason being I don't know the law :)
- Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes3y
@Bruce Woodruff was thinking the exact same thing. And I bet back and forth before any pitched legal battle runs 3-5K and they offer a third of the total, maybe settle on half.
@Philip Hernandez sorry to have fun with your problems! Keep your head up!
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3ySorry for my ignorance, I've never taken legal action against anyone. What is a demand letter?
Quote from @Jonathan R McLaughlin:
might be demand letter time, especially if over 10K? Please do share what you can of the attorney opinion. We have been around this issue a bit and our old attorney had a practice in plaintiff lead law.
Personal opinion is they would be fools not to settle on something reasonably quickly but I used attorneys for a reason--the reason being I don't know the law :)
- Investor · Austin, TX · Member since 2021 · 9k+ posts · 5k+ votes3y
Sounds like a lawsuit to me
- 3yDan H.Pro MemberInvestor · Poway, CA · Member since 2015 · 7k+ posts · 8k+ votes
I suspect the seller will state that indicating the property may have lead is the disclosure. I feel it is a little weak, but post that indicate seller has no leg to stand on, etc may be incorrect.
I have no idea what Cleveland requires.
In CA we provide all tenants a CA lead disclosure that is only required to be provided if the units have lead. I have no way to know if the unit has lead, so all our tenants get the disclosure. If the tenant reports flaking paint, it is our responsibility to repaint. Fortunately we use quality paint that does not flake (at least not prior to the wood going). I never test plumbing for lead. Similar, we do not test for asbestos except if doing a major effort. We have found asbestos in drywall and had to hire abatement contractor to address.
I am a bit surprised that CA has not mandated an asbestos disclosure similar to the lead disclosure.
Old units often have items that have been identified to have adverse health affects. Short of rebuilding the unit, it is not feasible to remove all these Heath items. You can keep paint in good shape and not do projects that spread asbestos, but the hazardous material is still present.
Note I have never had, or heard of, a tenant choosing not to rent a unit due to receiving the lead disclosure. If they wanted to avoid lead, they would not be able to rent any unit that is over ~45 years old which in my market would mean they would be eliminating the cheaper (relatively speaking) units.
Good luck
- Rental Property Investor · Boston, Massachusetts (MA) · Member since 2016 · 2k+ posts · 2k+ votes3y
@Dan Heuschele difference here is that the property actually received a notice from the city regarding lead, so “may” is deceiving. I would hope there is another “known defects or pending actions” section too.
@Philip Hernandez a demand letter is a letter from a lawyer identifying the problem and requesting the party solve it. In this case, you are asking them to reimburse you for the expenses caused by the failure to disclose the citation.
It’s not a threat, but it is pretty clear to anyone who gets one of these that it’s the first step to a lawsuit
- Kissimmee, FL · Member since 2018 · 150 posts · 27 votes3y
Quote from @Jonathan R McLaughlin:
@Dan Heuschele difference here is that the property actually received a notice from the city regarding lead, so “may” is deceiving. I would hope there is another “known defects or pending actions” section too.
@Philip Hernandez a demand letter is a letter from a lawyer identifying the problem and requesting the party solve it. In this case, you are asking them to reimburse you for the expenses caused by the failure to disclose the citation.
It’s not a threat, but it is pretty clear to anyone who gets one of these that it’s the first step to a lawsuit
How do you research property citations? Is that public record? What similar issues are missed during DD? I.e checking building permits
- 3yMatthew Irish-JonesBusiness MemberReal Estate Agent · Buffalo, NY · Member since 2017 · 2k+ posts · 2k+ votes
@Philip Hernandez best to fake sue. Couple hundred bucks your attorney can write a demand letter. Sometimes that scares them and they will pay up. After that you are probably stuck holding the bag.
How were you able to close without this coming up?
Irish Jones Realty4.947 Reviews - Investor · Milwaukee - Mequon, WI · Member since 2010 · 5k+ posts · 7k+ votes3y
@Philip Hernandez - I assume the Lead Based Paint Disclosure in Ohio looks very similar to the one we have in Wisconsin and basically states that if the property was built before 1978 it is possible and the owner usually checks the box that says have not tested and do not know.
Sounds like he did know. We call this a known material defect and failure to disclose. So step one is to connect with the city and get a copy of what has been sent, so you can verify what the tenants reported. If it turns out the seller knew and decided knowingly to not disclose and misrepresent you have a pretty good case.
The smart solution for both of you is to settle instead of going to court.
Legal fees on each side are quickly 5k-10k. This is where the demand letter comes in, you basically lay out the case and tell them you will litigate, present your case and then offer a settlement as a solution. If they know their legal fees will be 10k and on top of that they will probably loose and have to pay 25k for the remediation, maybe even your attorney fees - sending you a check for half of that starts to look like the better option.
Once you get the money have the issue taken care of. It's not that difficult. A lead certified painter has to remove all loose paint, basically lay out plastic everywhere to make sure nothing gets in the ground then scrape the loose paint until you have a solid base and then paint over it. Some contractors will quote you very high prices based on the fear factor of lead, but you'll find someone who is reasonable if you shop around.
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3y
Quote from @Matthew Irish-Jones:
@Philip Hernandez best to fake sue. Couple hundred bucks your attorney can write a demand letter. Sometimes that scares them and they will pay up. After that you are probably stuck holding the bag.
How were you able to close without this coming up?
The property passed inspection. And our inspector did not do a LBP test . It’s not required to close.
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3y
Quote from @Khari F.:
Quote from @Jonathan R McLaughlin:
@Dan Heuschele difference here is that the property actually received a notice from the city regarding lead, so “may” is deceiving. I would hope there is another “known defects or pending actions” section too.
@Philip Hernandez a demand letter is a letter from a lawyer identifying the problem and requesting the party solve it. In this case, you are asking them to reimburse you for the expenses caused by the failure to disclose the citation.
It’s not a threat, but it is pretty clear to anyone who gets one of these that it’s the first step to a lawsuit
How do you research property citations? Is that public record? What similar issues are missed during DD? I.e checking building permits
In this case, the tenant notified us that the city had a case, and when my property manager followed up with city she was told the details of the previous citation, and extension that he applied for and that we had a deadline of 12/21 to remediate
- Rental Property Investor · Member since 2021 · 37 posts · 20 votes3yThis is some great advice. I’m looking forward to seeing the bids. Essentially I’ve been advices by my property manager that they have literally no idea how much abatement may be. From 5k-25k if it’s 5k, I may just eat it and move on, any more
Quote from @Marcus Auerbach:
@Philip Hernandez - I assume the Lead Based Paint Disclosure in Ohio looks very similar to the one we have in Wisconsin and basically states that if the property was built before 1978 it is possible and the owner usually checks the box that says have not tested and do not know.
Sounds like he did know. We call this a known material defect and failure to disclose. So step one is to connect with the city and get a copy of what has been sent, so you can verify what the tenants reported. If it turns out the seller knew and decided knowingly to not disclose and misrepresent you have a pretty good case.
The smart solution for both of you is to settle instead of going to court.
Legal fees on each side are quickly 5k-10k. This is where the demand letter comes in, you basically lay out the case and tell them you will litigate, present your case and then offer a settlement as a solution. If they know their legal fees will be 10k and on top of that they will probably loose and have to pay 25k for the remediation, maybe even your attorney fees - sending you a check for half of that starts to look like the better option.
Once you get the money have the issue taken care of. It's not that difficult. A lead certified painter has to remove all loose paint, basically lay out plastic everywhere to make sure nothing gets in the ground then scrape the loose paint until you have a solid base and then paint over it. Some contractors will quote you very high prices based on the fear factor of lead, but you'll find someone who is reasonable if you shop around.
than that it’s time to start searching around, and get that demand letter ready. Apparently there is no chipping/ flaking paint, so there may the potential to encapsulate it….we’ll see - Rental Property Investor · Member since 2021 · 37 posts · 20 votes3yThe lead based paint disclosure is interesting. I purchased this from a wholesaler, and it had the wording in the contract that it”may” contact Lead, whereas every other property I’ve purchase in Ohio is more like what you are describing, where there is a checkbox where the owner certified that to the best of their knowledge the property either does, or does not have LBP. This leads me to believe that the standard disclosure for transactions in the state of Ohio was missing, and that we may have more of a case….in any case I’ll be following up to get legal advice on that
Quote from @Marcus Auerbach:
@Philip Hernandez - I assume the Lead Based Paint Disclosure in Ohio looks very similar to the one we have in Wisconsin and basically states that if the property was built before 1978 it is possible and the owner usually checks the box that says have not tested and do not know.
Sounds like he did know. We call this a known material defect and failure to disclose. So step one is to connect with the city and get a copy of what has been sent, so you can verify what the tenants reported. If it turns out the seller knew and decided knowingly to not disclose and misrepresent you have a pretty good case.
The smart solution for both of you is to settle instead of going to court.
Legal fees on each side are quickly 5k-10k. This is where the demand letter comes in, you basically lay out the case and tell them you will litigate, present your case and then offer a settlement as a solution. If they know their legal fees will be 10k and on top of that they will probably loose and have to pay 25k for the remediation, maybe even your attorney fees - sending you a check for half of that starts to look like the better option.
Once you get the money have the issue taken care of. It's not that difficult. A lead certified painter has to remove all loose paint, basically lay out plastic everywhere to make sure nothing gets in the ground then scrape the loose paint until you have a solid base and then paint over it. Some contractors will quote you very high prices based on the fear factor of lead, but you'll find someone who is reasonable if you shop around.
- Member since 2022 · 142 posts · 61 votes3yHi there. It's not a huge deal. You can fix that and get a clean bill of health from the city. The lawsuit question should go to the attorney as none of us are attorneys in your state. Just a hunch says the seller should be liable. You were somewhat warned because the real estate contract said "may contain lead". In a situation where the seller had no prior knowledge of lead paint then it would have been up to you to further investigate it before closing on the home. Your argument would be that he did know and that he was notified by the city that he needed to remediate and he should have told you. Instead of being clear he vaguely hinted at it. I'm very surprised the lender didn't pick up on this and ask for testing as a condition to close. I would have.
Quote from @Jonathan R McLaughlin:
this is--complicated.
1) I don't know CA but MA has some of the strictest lead laws in the nation so it may be comparable. You may be looking at "strict liability" meaning any kid in that apartment that has elevated lead levels can hold you responsible, they don't have to prove that it was from the house and indeed it very likely wouldn't be.
2) with the tenants aware of this and needing it remediated you are going to have to do so, pretty much immediately if there is a kid in there or about to be. In MA I think you have 90 days before your liability kicks in. Don't quote, me this is from memory and I'm not a lawyer...but its something like that. This is going to be true even if your seller is provably at fault and you can hold them financially responsible. It is your problem now. Oh by the way, this often applies to any child under 6 just visiting :)
3) First call to a lead remediation company which can examine and make recommendations. Its not always grotesquely expensive. There is interim control, painting only certain areas etc. often around door frames and older windows...but it can be tens of thousands of dollars in a worst case scenario.
4) Second call to a qualified attorney who specializes in this area. Pay him/her, do not go cheap and find a generalist or a brother in law or what have you. Let them guide you.
5) Get moving quickly on both ends (the remediation and the attorney) immediately and my gut is you will be able to hold the seller accountable. This is one of those rare areas where it can be pretty cut and dried and in their best interest to provide you some financial relief. And they are flush from the sale now as well.
You never know, it might be a long ago citation for a minor thing that was painted over and this will be a trifle, but....
6) Get the tenants on your side by doing everything within deadlines and keeping them in the loop. Its going to matter. FYI you will likely be responsible for providing them housing during the entire remediation process, short or long.
7) Seriously, people have many ways of dealing with this before its a documented issue, but once it is public it has to be handled properly. You are tremendously exposed. It may be next to nothing but don't be shocked if the bill is all out of keeping with what you think of as the scope of work. The company performing the work takes on the liability and they are going to charge you for it. DO NOT get the same work done by an uncertified company even if its just as good...it doesn't cover you and will hurt your resale value.
8) I'm writing this from a liability perspective. The medical issues surrounding actual lead poisoning are devastating and you have a moral obligation to deal.
9) I'm talking about liability more than health because we all grew up in houses with lead paint and actual poisoning was rare. And even pre 78 houses have had so many renovations stuff is often buried under layers of changes and isn't a practical problem with reasonable parenting and reasonable maintenance. This cuts both ways though--for something to be elevated to public record means it often gets heightened attention.
10)'acceptable' levels have been lowered and lowered and so even though kids may not have had major exposure as youths the standard is much different now. Acceptable levels have ranged from 20s and are now at 2-4 to give you an idea of how different things are now.
Good luck, do not panic, but face head on and quickly
- Flipper/Rehabber · Birmingham, AL · Member since 2016 · 68 posts · 33 votes3y
@Philip Hernandez. There are Federal laws too. You may want to check out the EPA pamphlet “The Lead-Safe Certifed Guide to Renovating Right,” if you are renovating. Also be sure the attorney has the right lead disclosures in your lease contract appropriate for your situation.
- Real Estate Broker · Medford, NJ · Member since 2018 · 236 posts · 177 votes3y
@Philip Hernandez In NJ we have a LBP disclosure form that clearly states either seller knows or has no knowledge of LBP. If this addendum isn’t attached to contracts and this happened lawsuits would be flying. I’ve never seen LBP remediation be less than 10k and that would be an open and shut case.
- Realtor · Hanover Twp, PA · Member since 2018 · 3k+ posts · 3k+ votes3y
@Philip Hernandez, one thing that @Bruce Woodruff apparently doesn't realize is that smaller amounts are CHEAPER to go after when the issue is clear cut.
In my state small claims court handles cases up to $8k. So, even if the amount you wish for is a little over that is can be advantageous to tackle it in small claims court without a lawyer and seek the maximum allowed in small claims court.
Small claims court is simple, low cost and you don't need a lawyer. So, its well worth while to try to get a judgement there.
Also, in my state the law states they must disclose issues like this they know about. Also, the typical sales contract also required sellers to pass along any governmental notices to the buyer that affect the property. So, in my state this would be a VERY simple case to prove and win.
- 3yBruce WoodruffPro MemberContractor/Investor/Consultant · San Diego / Phoenix · Member since 2021 · 12k+ posts · 15k+ votes
Quote from @Kevin Sobilo:
@Philip Hernandez, one thing that @Bruce Woodruff apparently doesn't realize is that smaller amounts are CHEAPER to go after when the issue is clear cut.
Oh, I realize that all right. I've used SC court dozens of times to go after smaller amounts. But just because you get a judgement means very little, you have to record that judgement and then try to collect. If the plaintiff refuses to pay, then you are starting down that long path where you are spending money. You must have gotten lucky in your cases.
It would all depend in this case on the amount that we're talking about. Certainly doesn't hurt to do a SC filing, but it's still time and money. We'd have to know if this seller is a 'non-collectible' before spending any time/money.
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