Published: Summer 1995

CONTROLLING LEAD-BASED PAINT

The following article appeared in the Summer 1995 issue of CNYC's quarterly Newsletter. You must be a member of CNYC to receive the complete Newsletter, which features timely articles on issues of importance to cooperative shareholders and condominium unit owners. Click here to reach the CNYC Membership Registration Form.

Lead-based paint is found in virtually every building erected before 1960, when it was banned from residential use in New York City (although it wasn't taken out of production in the United States until 1978). The city's Department of Housing Preservation and Development (HPD) estimates that lead-based paint is present in about 2 million of the city's 2.9 million housing units. In short, that means it may well be lurking somewhere in your building.

What should you do about it?

If a child is tested at school and found to have elevated blood-lead levels, the building and the shareholder or unit-owner may not have a choice. Local Law 1 of 1982, part of the Housing Maintenance Code, requires that when there is peeling paint in a building erected before 1960 in an apartment where a child under the age of seven lives, then a lead paint hazard is assumed to exist. If all these criteria are met, HPD issues a "Class C- Immediately Hazardous" violation, requiring the problem to be corrected within 48 hours. If the problem isn't corrected, HPD sends in its Emergency Repair Unit to do the lead abatement work, and sends a bill to the owner. In such cases, the violation and perhaps the bill could be given to the building, the shareholder, or both.

According to technical environmental expert John Cesario, that is one good reason why co-op and condo boards shouldn't wait to address a lead-based paint problem.

"If the paint in the apartment is intact, not chipping or peeling, the hazard is often minimal," he said. "But there are danger spots around window frames and door jams, where friction creates dust from the lead-based paint. The enamel paints used on windows and doors contain the heaviest concentration of lead. Children can inhale the dust or get in on their hands. And unlike asbestos, the effects of the presence of lead show up when children get sick."

There are other good reasons to act. Indeed, lead-based paint has become the asbestos of the mid-1990s -- only this hazard hits closer to home, since it is not found wrapped around pipes in the basement, but inside apartments. As is the case today with asbestos, lenders may soon require lead inspections and abatements before allowing refinancing, warned attorney Clifford P. Case III.

The law requires that apartment sales contracts must include a lead-based paint disclosure such as the following:

Every purchaser of any interest in real property, on which a residential building was built prior to 1978, is notified that such property may provide exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning. Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence, behavioral problems, and impaired memory. Lead poisoning also poses a particular risk to pregnant women.

The seller of any interest in real property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession, and must notify the buyer of any known lead-based paint hazards. A risk assessment or inspection for possible lead-based paint hazards is recommended prior to purchase.

"This text or one like it will now be included in all contracts, so it will certainly stimulate interest on the part of buyers," said Case.

Both Case and Cesario recommend that boards survey all the apartments in their buildings, "so that you have an inventory that you can furnish to contractors (yours or those hired by shareholders). You tell them where lead paint is located in the building, then it is up to you to enforce the precautions that you want the contractor to take."

There are two ways to deal with a lead-based paint problem: heavy abatement and light abatement. If a child in the apartment is found to have elevated blood-lead levels, Department of Health regulations that went into effect on March 16, 1994, require the shareholder or unit owner to call in a professional abatement contractor. This begins a detailed process of closing off the apartment and using special equipment to remove the paint. After the work is completed, an independent inspector must be brought in to check for lead. Costs for such work can run into thousands of dollars.

If there is a young child in an apartment with peeling lead paint, but no elevated lead levels have been found, "you can go with a 'lead-safe' approach," said Case. "This generally involves just scraping and painting over any lead-based paint to remove the hazard." The downside to this approach is that "if a child living in the apartment is later found to have elevated blood levels, the board could be liable for not requiring the unit owner to follow the Housing Maintenance Code," said Case, noting that this is "a relatively unlikely risk, especially if you have instituted a responsible policy of treating areas where chipping occurs."

Lax enforcement has kept the lead issue from becoming a full-blown issue, say many housing experts. In one lingering legal suit, New York City Coalition to End Lead Paint Poisoning v. (Ed) Koch, the city was sued for allowing lead-based paint violations to go unprosecuted. According to Case, the city was held in contempt in the suit, which has not been resolved.

In theory, Case asserted that he prefers the federal regulations governing lead-based paint -- that owners should treat only areas where the paint is found to be a hazard. "This way, an owner can monitor and stay on top of the problem," he said. Added Cesario: "Like asbestos, sometimes disturbing lead paint creates more of a hazard than you had to begin with."

In practice, however, boards and shareholders should follow the law -- in a practical way. "If a shareholder wants to remove a wall in an apartment with young children, then you need to put in place all the precautions that the city requires," said Case. "But if someone is painting their walls or drilling a hole in a wall, don't make more trouble for yourself than you need to."