Lead Paint...uh oh

7 Replies

Say someone has been renting an apartment to a family with 2 kids under 6 for the past 9 months or so. We are a day away from giving them their 14 day notice to quit for non-payment (in Massachusetts that is what you do). In the past couple of weeks the board of health has been there for very minor violations (that were all fixed) but now inspector is talking about lead paint testing.

Questions:

1. If test comes back positive from inspector, how does that change (if at all) my eviction for non-payment?

2. Would the landlord be required to de-lead the unit even though they are being evicted?

3. Any lawsuits, etc involved since they have been living there for 9 months with potential lead in unit?

Of course, this is all if the test comes back positive, so all hypothetical questions. Just trying to be prepared for what could possibly happen. I know lead paint is a huge issue in MA, so I would appreciate any and all feedback regarding this. 

My answer is it does not change things but I would not be surprised if they could get an attorney to prove otherwise.  Why would the health department release the findings to them and not just you?

What kind of house your renting that requires multiple visits from the health department to begin with?

PM me the address and I'll check if there's ever been a lead inspection there. 

As far as the eviction goes, if the test comes back positive the tenants will be notified and they'll try to use it against you. However, the children have to be tested for elevated lead levels. Those levels will dictate if they have a serious claim against you or not.

MA law states that you cannot rent to a family with children under 7 unless you have a lead cert on file. So basically, since you can't discriminate against families with small children, they made it so any rental property has to have a lead cert on file, so yes, you need to delead the unit to comply with the law, or you need to discriminate and violate the equal housing law. 

Section 8, CTI, and any other state or Fed agency now requires a current lead cert to place a tenant there, so if you ever want that money, you need to do it too.

The state has special financing where they will loan you the money to delead with a deferred payment until you sell the building, so you pay them back out of the money from the sale. The also offer a $1500 per unit tax credit when you delead. They want the units deleaded, so they're trying to make it as easy as possible.

Talk to your lawyer. At this point, your best course of action is probably to get the lead cert. quickly. If the children's lead levels are not elevated, nothing should come from you not already having it. Maybe a small fine if someone wants to be a hard ***. 

On the flip side, he may suggest evicting these tenants as quickly as possible before a lead test can be done and give them something to use against you. I'm not a lawer, so I can't advise you on that. I do know that MA evictions can take 6 months or more, so in that time, these people could feed their kids lead paint chips so they can sue and take your house, so getting the cert quick is probably the way to go.

I can also give you the contact info of a lead inspector I like to work with, he's fair and doesn't try to fail something so he can charge you to come back and reinspect.

Originally posted by @Chris Simmons :

My answer is it does not change things but I would not be surprised if they could get an attorney to prove otherwise.  Why would the health department release the findings to them and not just you?

What kind of house your renting that requires multiple visits from the health department to begin with?

 Board of Health came (she said because department of child services was called by her ex-boyfriend) and we got a letter of minor things to fix. We fixed them all and called for a post inspection. When the inspector came, she started adding things to get fixed. (now caulk around kitchen sink, ant problem?, and now they were testing for lead paint.

I'm not the landlord, but a family member of mine is and I'm just trying to help them through this process. The tenant did not get results yet, either did us. Not even sure if the lead test occurred yet. 

I'm a little upset that certain things were not addressed, including possibility of lead paint the first time they came. But it's not my property so I cannot talk to the inspector about that "mis-communication" lets call it. 

p.s. we have an attorney, a very good one. I don't think she will be able to afford a good one, or one at all. (not sure how good the free ones are?)

Originally posted by @Derreck Wells:

PM me the address and I'll check if there's ever been a lead inspection there. 

As far as the eviction goes, if the test comes back positive the tenants will be notified and they'll try to use it against you. However, the children have to be tested for elevated lead levels. Those levels will dictate if they have a serious claim against you or not.

MA law states that you cannot rent to a family with children under 7 unless you have a lead cert on file. So basically, since you can't discriminate against families with small children, they made it so any rental property has to have a lead cert on file, so yes, you need to delead the unit to comply with the law, or you need to discriminate and violate the equal housing law. 

Section 8, CTI, and any other state or Fed agency now requires a current lead cert to place a tenant there, so if you ever want that money, you need to do it too.

The state has special financing where they will loan you the money to delead with a deferred payment until you sell the building, so you pay them back out of the money from the sale. The also offer a $1500 per unit tax credit when you delead. They want the units deleaded, so they're trying to make it as easy as possible.

Talk to your lawyer. At this point, your best course of action is probably to get the lead cert. quickly. If the children's lead levels are not elevated, nothing should come from you not already having it. Maybe a small fine if someone wants to be a hard ***. 

On the flip side, he may suggest evicting these tenants as quickly as possible before a lead test can be done and give them something to use against you. I'm not a lawer, so I can't advise you on that. I do know that MA evictions can take 6 months or more, so in that time, these people could feed their kids lead paint chips so they can sue and take your house, so getting the cert quick is probably the way to go.

I can also give you the contact info of a lead inspector I like to work with, he's fair and doesn't try to fail something so he can charge you to come back and reinspect.

 I have a very good lawyer, and since the eviction is for non-payment, the child to not get taken into consideration (in terms of letting them have more time to find a new place, etc) so this SHOULD be a pretty quick eviction if all goes well. (I'm thinking under 2 months) I'm also thinking if we file the 14 day NTQ before we get a lead test back, then we should be good. we ARE NOT evicting because of board of health, or even possibly positive lead paint, we are evicting because they are 2 months late on rent. No section 8, so that's not an issue. And we aren't discriminating either. We just want the $$, we are not getting it, so pack your bags. 

I'm also thinking that if the test comes back positive, it will entice the judge to get these people out quicker if they really are concerned about their kids.

@Robert P.

I am not sure what your lawyer said but I have never heard of a 2 month eviction in MA, I don't even think thats possible. Also if you are evicting for Non-Payment if they can pay or someone (friends/family) gives them the money then you have to repeat the process again. As a point of reference I was in housing court and another landlord was trying to evict a tenant for non-payment, the tenant cried and even though she couldn't pay the judge let her stay becuase she had a letter that said she was starting a new job in 2 weeks.

What I am saying is that the court system in MA does not care about the landlord, I am not a lawyer but would ask your lawyer about an eviction for "No Cause".

Either way I suspect it will take you at least 4 months.

My 2 cents.

Mike 

Does your lease say anything about lead based paint?

I don't know what the laws are in MA. But we have a lead-based paint clause built into our lease that we make them initial during the lease signing.

It has nothing to do with the lease. In MA if a child under the age of 6 lives in the Unit, it must be completely deleaded. You cannot reject an applicant because they have kids because there  is lead paint present. If you you haven't signed a lease you can delay start of tenancy up to 30 days to delead. If you have a lease already signed, the landlord is responsible for providing alternative housing during the deleading process. 

*Disclaimer* *Source is a MA tenant class I took, taken right off the instructors slide sheet, instructor is an attorney, I am not, please seek legal advice when dealing with this topic*

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