The goal of this blog is to help landlords avoid the pitfalls associated with non-compliance with lead-based paint regulations. This is also an update on upcoming changes in the field to help our readers formulate proactive strategies to avoid potential liability.

When it comes to renovations, the laws concerning lead-based paint often create confusion among landlords. For decades now, landlords in Michigan have had to deal with federal regulations related to the disclosure of lead-based paint and lead-based paint hazards.

The Environmental Protection Agency (EPA) has recently proposed new guidelines that are likely to go into effect in the coming months (as of the time of this writing, September 2023). Therefore, landlords should be keenly aware of the laws that are currently in place, as well as the new guidelines that will likely be implemented.

Current laws and guidelines

An important law relating to lead disclosure in Michigan is the Residential Lead-Based Paint Hazard Reduction Act of 1992. In addition to the lead-based paint disclosure requirements, the Michigan Lead Abatement Act also affects landlords. The act requires that all lead-based inspections, risk assessments, and abatements in child-occupied facilities and target housing be performed by persons certified under the act and in accordance with standards for conducting these activities. The law applies to all transactions involving the lease, sale, or sublease of target housing unless an exception applies. As part of the requirements, a potential buyer or lessee must be given 10 days to perform a lead-based paint or paint hazards inspection. However, if the parties mutually agree in writing, they can lengthen or shorten the inspection period. The buyer may also waive the opportunity to inspect the property.

Proposed new guidelines

On July 12, 2023, the EPA announced stricter requirements for the removal of lead-based paint hazards in pre-1978 buildings and childcare facilities. If the proposed rule is finalized, it would strengthen the EPA’s regulations under section 402 of the Toxic Substances Control Act by revising the dust-lead hazard standards (DLHS), which identify hazardous lead in dust on floors and windowsills, and the dust-lead clearance levels (DLCL), which specifies the amount of lead that can remain in dust on floors, window troughs, and windowsills after lead removal activities.

How this ruling affects you as a landlord

Lead-based paint professionals and government agencies use the DLHS to identify dust-lead hazards in residential properties and childcare facilities built before 1978. If a lead-based paint activity—such as abatement— is performed, the EPA requires individuals and firms performing the abatement to be certified and follow specific work practices. Following abatement, testing is required [JM3] to ensure that dust-lead levels are below the DLCL before an abatement can be considered complete. As such, this proposal has an impact on all landlords who are in control of property that was built before 1978.

It is important to note that the EPA has stated that these proposed guidelines would not impose retroactive requirements on regulated entities that have previously performed post-abatement dust wipe testing using the current guidelines.

Additionally, the EPA’s new guidelines do not compel landlords, property owners, or occupants to evaluate their property for lead-based paint hazards or to take control actions. The new guidelines are set to affect all future sales and leases of property built before 1978, meaning that new testing for the presence of lead dust on the property would have to be conducted. Also, lead dust would have to be cleaned up if present on the property beyond the new limits for DLHS and DLCL.

It becomes crucial for landlords to consider how the new guidelines will impact their property in order to prevent opening the door to potential legal action. The proposed new guidelines will set new standards for all future inspections related to lead-based paint and lead-based paint hazards in Michigan.

References

Deems, N. D., & Schmidt, P. A. (2023, July 28). Chapter 4: Preliminary Agreements and Disclosures. Retrieved from ICLE: https://www.icle.org/Modules/Books/Chapter.aspx?lib=RealProperty&book=2020557110&chapter=4#i2020557110-4-

Environmental Protection Agency. (2023, August 1). Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead Post-Abatement Clearance Levels. Retrieved from Federal Register: https://www.federalregister.gov/documents/2023/08/01/2023-15073/reconsideration-of-the-dust-lead-hazard-standards-and-dust-lead-post-abatement-clearance-levels

EPA Press Office. (2023, July 12). Biden-Harris Administration Proposes to Strengthen Lead Paint Standards to Protect Against Childhood Lead Exposure. Retrieved from EPA: https://www.epa.gov/newsreleases/biden-harris-administration-proposes-strengthen-lead-paint-standards-protect-against

Fink, J. A., & Chard, R. B. (2023, July 28). Chapter 6: Residential Landlord-Tenant Matters. Retrieved from ICLE: https://www.icle.org/modules/books/chapter.aspx?lib=general&book=2007553820&chapter=6&q=lead%20landlord

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