Legal Developments in Lead Poisoning Claims for Landlords: Lead Poisoning Myths - True or False?

1/15/2005

LEGAL DEVELOPMENTS IN LEAD POISONING CLAIMS FOR LANDLORDS:

LEAD POISONING MYTHS - TRUE OR FALSE?

How Lead Claims Effect You As A Landlord

How To Protect Yourself From Getting Sued

And What To Do If You Get Sued

Sponsored by U.S. Finance Group, LLC

January 15, 2005, Framingham, MA

Cynthia J. Stephens, Esq.

Governo Law Firm LLC

260 Franklin Street

Boston, MA 02110

(617) 737-9045

Fax (617) 737-9046

info@governo.com

www.governo.com

History and Overview of the Massachusetts Lead Poisoning

Prevention and Control Act

Or

How To Prevent A Lead Paint Lawsuit

And What To Do If You Are Sued

1. History of Lead Poisoning

Lead poisoning has been a serious concern for centuries. Historians suspect that lead poisoning contributed to the decline of ancient empires when their leaders became deranged from or died of lead poisoning.

Lead is a soft gray-white metal that is easy to work with, insulates well without rusting, mixes well with other metals, makes long-lasting paint pigment, and is strong and durable.

It was not until the 1970's that the use of lead in gasoline and paint began to be regulated and then prohibited. Massachusetts reacted to these concerns and in the early 70's enacted one of the first laws regarding lead poisoning in the country.

2. Definition and Treatment of Lead Poisoning

The presence of lead in the body is measured in the blood and is expressed as micrograms (1/1,000,00 of a gram) per deciliter (1/10 of a liter or about 3 oz.) or µg/dl. Lead poisoning can cause coma, convulsions, and even death in children, and is associated with blood lead levels around 80 µg/dl and higher.[1] There is a distinction, however, between lead poisoning, which has these symptoms, and lower levels, which do not cause observable problems. The lower the level, the more difficult it is to observe an effect, especially in an individual child. Rather conversely, the levels below actual lead poisoning are called "elevated lead levels" or "levels of concern", since they are above zero.

Children with lead poisoning and those with elevated lead levels can be treated for lead in a variety of ways, depending upon how high their levels are. Treatment includes better nutrition, reduced exposure to lead-based materials, iron therapy, and sometimes the administration of chelates. Chelation is the process by which a chemical is introduced into the body that binds with lead and then both are excreted out in the urine.[2] Some chelates are in tablet form, however, if the child has high enough lead levels, usually in the forties, the child is hospitalized and intravenous or intramuscular chelation chemicals are given for eight hours a day for five days.[3] This treatment, together with the numerous venous blood tests that are given, can be a very painful procedure for a young child.

The Center for Disease Control now considers 10 µg/dl to be a "level of concern", since some experts believe that levels as low as this can cause hyperactivity, loss of IQ points, and can interfere with learning of language.[4] Massachusetts, however, has a different threshold.

3. Massachusetts Lead Poisoning Prevention and Control Act

Massachusetts enacted the first version of its Lead Law in 1971.[5] Not only is there a statute, there are also complex regulations that spell out the law in more detail.[6] Although the law has undergone numerous changes during the last thirty years, the definition of lead poisoning has remained at 25 µg/dl.[7]

The Massachusetts Lead Law is unique and very burdensome for landlords because it provides that an owner is strictly liable, without negligence or fault, for a child's injuries due to lead exposure. To sue under the Massachusetts Lead Law, someone needs only three things:

1. An owner (which includes property manager) of property;

2. Rental to a family with a child under the age of six;

3. Accessible lead violations present in the property.

Simply put, a landlord can be sued even if he had no idea that there was a child under the age of six living at the premises and had no idea that there were lead violations in the premise. A landlord can also be liable for triple damages and costs if she willfully fails to comply with the Lead Law.

4. Massachusetts Related Laws

Not only are landlords liable for the Lead Law, they also face potential liability under other statutes designed to protect tenants. These laws can also be quite burdensome. A landlord can be liable under Chapter 93A, the Consumer Protection Law, for renting property containing lead violations.[8] This law provides for the award of attorneys' fees and costs, and the possibility of triple damages. If the landlord does not qualify as a "person doing business" under the Consumer Protection Law, he can still be held liable under another law, the Covenant of Quiet Enjoyment. [9] This law states that a landlord who interferes with the quiet enjoyment of any residential premises can be liable for damages together with costs and attorney's fees. It is the award of punitive damages and/or attorneys' fees and costs that make these two laws quite serious.

A landlord can also be sued under the Warranty of Habitability, which requires that the premises be kept in habitable condition.[10] The presence of "dangerous" levels of lead would constitute a material breach if a child under the age of six was present. There is also the possibility of damages due to the negligent or intentional infliction of emotional distress, which can include the inconvenience, fear and pain from the child's blood lead tests and examinations, and the parental worry regarding the possibility of a serious disease.

5. Important Sections of the Massachusetts Lead Law

Certain sections of the Massachusetts Lead Law are vitally important to a landlord. Section 197 contains crucial information and requirements for landlords. This section spells out when the landlord has to delead. It also explains when (1) the landlord can partially abate or perform interim control; (2) who to notify when the landlord deleads; (3) who can do the abatement (homeowners may under certain circumstances); (4) how do abate; (5) who can occupy the premises during abatement; (6) the rules regarding substitute dwelling for the tenant during abatement, and (7) how to get a letter of compliance and under what circumstances a letter of compliance can protect the landlord from further lawsuits.

Sections 198 explains the landlord's rights if the tenant withholds rent due to the lead violations and section 199 explains when the landlord is liable for punitive damages, and under what circumstances can the landlord sue the parents of the lead-poisoned child.

6. How You Can Prevent A Lawsuit

The best way to prevent a lawsuit is simply to delead the property. Before renting to anyone, or before purchasing the property, the landlord should make sure the property has been inspected, deleaded, and issued a "letter of compliance." The landlord must also make sure that she hires a reputable inspector and de-leader.

Once the Lead Law has become involved, or, for example, the property has been inspected by the Childhood Lead Poisoning Prevention Program (CLPPP) or a similar agency, and a Notice to Correct Violations has been issued, the best thing to do is to comply timely with the Notice and delead. A good working relationship with the inspector is also very important.

Unfortunately, none of these actions provide foolproof protection for landlords. Due to the constant flow of different tenants, changing property conditions, and the changes in the Lead Law, a landlord that has deleaded the property is still vulnerable to a new lawsuit from a new tenant.[11] A landlord can minimize his liability by keeping careful records of the maintenance and repair he performs on the property and by conducting inspections to make sure the property remains in good condition.

One thing not to do is to try to avoid renting to families with children. This puts the landlord at great risk for violating another law.

7. What Are The Risks If You Are Sued

There are two ways that a landlord can be sued under the Lead Law. First is the criminal lawsuit. If there was an inspection of the property and the landlord failed to delead properly, or within the proper time frame, the CLPPP inspector has the obligation to summons him to criminal court to explain why the property was not deleaded properly. The landlord can be liable for a criminal fine up to $500 per day.

A landlord can also be liable in a civil lawsuit, where a child, exposed to lead in the landlord's property, sues for her injuries. Depending upon the child's lead levels and/or injuries, and the status of the landlord's insurance coverage, this lawsuit can have devastating consequences. Claims for damages in the millions are not uncommon.

8. What To Do If You Are Sued

The first thing a landlord should do once he is sued is to find out if there is insurance that would cover this situation. This may seem simple, but, like almost everything connected to lead poisoning claims, it is not. While insurance policies routinely covered lead poisoning claims in the 1970's, 1980's and early 1990's, the same is not true now. Insurance companies now routinely exclude coverage for lead paint. The important factor in determining insurance coverage is to find out when the child lived in the property and when he or she had elevated lead levels. Even if a landlord does not currently have insurance for lead poisoning claims, she might have had coverage for claims that occurred earlier.

Also, even if the insurance company disclaims coverage due to a "lead paint" exclusion clause in the policy, do not give up hope. A recent superior court case held that there was coverage for a lead poisoning claim because the exclusion clause in the policy mentioned only "lead paint" and failed to exclude claims due to lead exposure from other materials such as plaster, putty, or other lead-based materials![12]

Also, once a claim has been filed a landlord should search for documents regarding the maintenance and upkeep of the property. The point here is to show diligence in maintaining and repairing the property. An argument can then be made that the child was not exposed to lead at the landlord's property since it was in excellent condition.

9. Why It Is Important to Protect Yourself

It is well worth the time and money for a landlord to consult an attorney to protect his assets from these devastating lawsuits, especially if there is no insurance coverage. One very simple but effective device is the filing of a homestead to protect the landlord's home. A realty trust is usually not enough protection, because both the trust and trustees can be sued, and this puts the trustee's personal assets at risk.

LEAD POISONING MYTHS

1. A landlord is liable only if he knew there were children under the age of six living in the property.

Not True.

The Lead Law imposes strict liability on the landlord, which means that the landlord does not need to be negligent or at fault, or even know there was a child living in the property, in order to be sued.

2. A landlord need not worry about the Lead Law if there are only elderly, or unmarried, or a single person living in his property.

Not True.

The Lead Law protects any child under the age of six who resides in the property. This can include, for example, a grandmother whose grandchild is living with her, or even minor relatives who might be staying with the tenant.

3. A landlord can avoid liability if he hires a property manager.

Not True.

The Lead Law imposes liability on all "owners", which includes, among others, those with legal title, and property managers. Neither the landlord nor the property manager can avoid liability by pointing to each other as the responsible party.

4. A child must eat lead paint chips to have an elevated blood lead level.

Not True.

A child can be exposed from breathing lead dust. One of the major sources of lead is dust or dirt released from the up and down movement of windows. Lead that is inhaled is more dangerous than lead in paint chips since it is in smaller particles and more easily absorbed.

5. A landlord can avoid deleading the property by moving the lead poisoned child to another apartment.

Not True.

Once a Notice to Correct the Violations has been issued for property where a lead-poisoned child lives, the apartment must be deleaded.[13]

6. A landlord can evict the parents of lead-poisoned child.

Maybe.

There is a statute that states that a landlord who takes reprisals, which includes evictions, against a tenant for reporting violations to the Board of Health is liable for damages, including costs and attorney's fee. A notice of termination of tenancy, except for non-payment of rent, within 6 months after tenant has reported violations creates a rebuttable presumption that the termination notice is a reprisal against the tenant.[14]

7. The landlord can evict the parents of a lead-poisoned child for non-payment of rent.

Maybe.

Although there is no case law directly on point, the parents can argue that the fair rental value of a property with lead paint violations is zero, and thus pay no rent. However, it is debatable whether or not the violations would cause such a reduction. If the tenant is withholding rent due to lead violations, the court can order the amount that would be awarded to the tenant for the difference in fair rental value, be applied to the cost of the abatement.

8. A landlord's insurance policy will protect him and his assets from lead poisoning claims.

Maybe.

It depends if the claim occurred while the insurance companies were still writing policies that covered lead poisoning. If there is a lead poisoning exclusion clause in the policy it should be checked to see exactly what is being excluded.

9. A landlord can be jailed if he fails to delead.

Not True.

A criminal fine of $500 a day, up to $25,000 can be imposed.[15]

10. Abatement or deleading is removal of all of the lead in the property.

Not True.

Deleading is a misnomer. The Lead Law requires only the removal of lead in specific parts of the apartment, usually those areas that are accessible to a child. Lead that is non-accessible, such as in intact paint in the ceiling, is not a violation, and does not need to be removed.

11. Repainting is adequate deleading.

Not True.

The Lead Law specifically states that repainting is not deleading.[16]

12. A landlord can do some of the deleading himself.

Maybe.

It depends upon when the claim arose. The earliest versions of the statute allowed the owner to delead. The law was then amended to provide that only licensed deleaders could abate. Now, the law allows landlords to perform certain work under very narrow circumstances.[17]

13. A landlord can dispute the CLPPP lead inspection report.

Maybe.

The Lead Law is considered "emergency legislation", and as such, any order, such as a Notice to Correct the Violations, must be obeyed.[18] Then and only then, can a landlord appeal the findings of the inspection report. This is particularly burdensome in these situations, because the abatement effectively removes any evidence there may be that the presence of lead in the property may not have constituted a violation.

14. A landlord should hire a private inspector to conduct a second lead inspection to dispute the official CLPPP report.

Not True.

In most circumstances, a second inspection report will only verify the findings of the first report, and may, in fact, turn out to hurt rather than help the situation.

15. Tenants can continue to live in the property during the deleading.

Not True.

The Lead Law specifically requires that no one be present in the apartment during abatement, unless advance permission from the director was obtained.[19]

16. The landlord does not have to pay for the tenant's alternative housing during deleading.

Not True.

The Lead Law requires the landlord to pay for the reasonable moving expenses of the tenant and any fees for the substitute dwelling that exceed the rent.[20]

17. A landlord can relax once he deleads and is issued a letter of compliance.

Not True.

If the property falls out of compliance, the landlord has 14 days from the day he receives notice to bring the property back into compliance.[21]

18. A landlord can sue the child's parents for allowing the child to ingest the paint.

Maybe.

The Lead Law allows a landlord, who was sued and had to pay damages, the opportunity to sue the parents of the child for any parental negligence up to one year after judgment entered against him.[22]

19. A landlord need only know the current version of the Lead Law and not the earlier versions.

Not True.

The Lead Law and the lead poisoning regulations have undergone several changes in the past thirty years. What is true now, may not have been true, or even legal, when the lead poisoned child lived in the property. In most cases, the law that is applied is the law that was in effect when the child was a tenant in the property.

20. A landlord has fulfilled his notification obligations under the Lead Law if he provides his tenants with a copy of any lead paint inspections and/or letters of compliance.

Not True

The Lead Law requires a landlord to provide tenants with a Tenant Lead Law Notification packet and have them sign a Tenant Certification Form. Failure to do so is a violation of Chapter 93A and can result in a $1,000 fine.[23]



[1] CDC, Preventing Lead Poisoning In Young Children: A Statement of the Centers for Disease Control - October, 1991, p. 9.

[2] Id., at 55.

[3] Id., at 60-61.

[4] CDC, Preventing Lead Poisoning In Young Children: A Statement of the Centers for Disease Control - October, 1991, p. 1, 9-10.

[5] M. G. L. c. 111 § 189A et seq.

[6] Code Of Massachusetts Regulations, Lead Poisoning Prevention and Control, 105 CMR 460.000 - 460.900.

[7] 105 CMR 460.020.

[8] M. G. L. c. 93A.

[9] M. G. L. c 186 § 14.

[10] See M. G. L. c 239 § 8A.

[11] However, the 1994 Amendment to the Lead Law does have a provision that reduces a landlord's liability if he deleads, is issued a letter of compliance, but is sued later on because the deleading regulations changed. M. G. L. c. 111 § 197, as amended. Also, the law was further amended very recently to allow a landlord, who deleaded and was issued a letter of compliance, 14 days to repair property that has fallen out of compliance. M. G. L. c. 111 § 197, as amended.

[12] Baer v. Western World Insurance, Middlesex Superior Court, CA No: 98-2309F, December, 2000, Murphy, J.

[13] M. G. L. c. 111 § 194.

[14] M. G. L. c. 186 §18

[15] M. G. L. c. 111 § 127A.

[16] M. G. L. c. 111 § 197(f).

[17] M. G. L. c. 111 § 197 (d).

[18] 105 CMR 460.900.

[19] M. G. L. c. 111 § 197 (g).

[20] M.G. L. c. 111 § 197 (h).

[21] M. G. L. c. 111 § 197(c)(5).

[22] M. G. L. c. 111 § 199 (c).

[23] M. G. L. c. 111 § 197A (2)(1) and (e).


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