Legal FAQs for REALTORS® — Disclosures Other Than Agency
Lead-Based Paint

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Legal disclaimer

Will a buyer be automatically given 10 days to conduct inspections for lead-based paint in all transactions? (updated Jan. 1, 2002)

The right to conduct inspections for lead-based paint applies to sales of target housing. The 10-day period is negotiable, but if no other time is specified, the buyer will have 10 days to conduct inspections for lead-based paint before becoming obligated under the contract. The 10-day right does not apply to leases of target housing.


Are there instances in which the rules about providing the lead-based paint addendum don't apply? (updated Jan. 1, 2002)

Yes, exemptions include:

1. housing built after Dec. 31, 1977; 
2. housing for the elderly or disabled (where no child under six resides);
3. dwellings with no bedrooms, meaning the living area is not separated from the sleeping area such as efficiency apartments, dormitory housing, military barracks, and individual rooms;
4. sales of target housing at foreclosure;
5. leases of target housing that are found to be free of lead-based paint by an inspector certified under the federal certification program or under a federally accredited state or tribal certification program;
6. short-term leases of 100 days or fewer where no lease renewal or extension can occur; and
7. renewals of existing leases in target housing in which the lessor has previously disclosed all information and where no new information has come into his possession.


How do brokers in Texas ensure compliance with the rules?

Concerning lease transactions, the association revised its residential lease forms effective May 15, 1996. Included in these revisions is a notice in the lease, paragraph 35, advising the parties of requirements under the act. If the property was built before 1978, the Addendum Regarding Lead-Based Paint (TAR 024H) will probably be attached to the lease. The association also made available copies of the federal lead hazards information pamphlet that tenants will receive prior to executing a lease.


Do these rules apply if I am selling an apartment complex for an owner in a commercial real estate transaction? (updated Jan. 1, 2002)

Yes.


What's wrong with lead-based paint? (updated Jan. 1, 2002)

Although lead poisoning does not often exhibit obvious symptoms, blood levels as low as 10 micrograms per deciliter (mg/dl) have been associated with learning disabilities, growth impairment, permanent hearing and visual impairment, and other damage to the brain and nervous system. Lead exposure can also alter fetal development and cause miscarriages. It is especially damaging to children under six and pregnant women. In 1991, the secretary of Health and Human Services characterized lead poisoning as the number-one environmental threat to the health of children in the United States. A national health survey indicated that over the past 20 years, the average child's blood lead level has decreased from 12.8 mg/dl to 2.8 mg/dl. In 1991, 1.7 million U.S. children under the age of six had blood-lead levels exceeding 10 mg/dl. Efforts to reduce lead exposure from gasoline and food cans have been successful and have contributed to the decline in blood lead levels. However, lead-based paint still poses a threat. About 83% of the privately owned housing units built in the United States before 1980 contain some lead-based paint (approximately 64 million homes). The lead from paint can flake off and dust caused during normal wear can create a hard-to-see film over surfaces. Even regular cleaning and dusting can disperse fine dust particles containing lead into the air. If managed improperly, the exposed lead may be inhaled or ingested.


What does the term target housing mean? (updated Jan. 1, 2002)

It refers to any housing constructed before 1978. It does not include housing for the elderly or persons with disabilities unless a child less than six years of age resides or is expected to reside in the housing. It does not include dwellings with no bedrooms.


What is meant by lead-based paint and lead-based paint hazard? (updated Jan. 1, 2002)

"Lead-based paint" refers to paint or other surface coatings that contain lead equal to or in excess of 1 milligram per square centimeter or 0.5% by weight. "Lead-based paint hazard" refers to any condition that causes exposure to lead from lead-contaminated dust, soil or paint that is deteriorated or present in accessible surfaces, friction surfaces or impact surfaces that would result in adverse human health effects.


When did the lead-based paint rules become effective? (updated Jan. 1, 2002)

For owners of more than four residential dwellings, the rules took effect Sept. 6, 1996. For owners of one to four residential dwellings, they took effect Dec. 6, 1996.


Will a buyer be automatically given 10 days to conduct inspections for lead-based paint in all transactions? (updated Jan. 1, 2002)

The right to conduct inspections for lead-based paint applies to sales of target housing. The 10-day period is negotiable, but if no other time is specified, the buyer will have 10 days to conduct inspections for lead-based paint before becoming obligated under the contract. The 10-day right does not apply to leases of target housing.


Does it matter which party signs the lead-based paint addendum first? (Updated May 8, 2014)

Yes. The seller must sign first because the seller provides information to the buyer regarding any known lead-based paint and/or lead-based paint hazards, as well as any records and reports pertaining to lead-based paint and/or lead-based paint hazards.

The prospective buyer must have this information when deciding whether to conduct a risk assessment or inspection for the presence of lead-based paint or lead-based paint hazards. Note that the disclosure must be made before any contract is executed. 


What's the difference between the pamphlet Protect Your Family From Lead in Your Home and the lead warning statement required in a contract or lease? (updated Jan. 1, 2002)

"Protect Your Family From Lead in Your Home" was written by the EPA and is a small booklet containing about 16 pages that generally discusses the sources of lead, where to obtain additional information and what precautions a person should take when buying or leasing a dwelling with lead-based paint. The pamphlet is to be provided to each buyer or tenant as information. The lead warning statement is specific language, prescribed by the rules, that must be contained in the contract to sell or lease. The lead warning statement will be placed in the addendum that will be attached to the lease or contracts. It is a short paragraph about lead-based paint and lead-based paint hazards.


Must relocation companies comply with the rules?

If the relocation company is the seller, yes.


How can brokers and salespersons remember what must be provided? (updated Jan. 1, 2002)

Provide all prospects the pamphlet "Protect Your Family From Lead in Your Home" as early as possible. If selling or leasing housing built before 1978, use the addenda regarding lead-based paint at the time the buyer or tenant is prepared to make the offer. Because the addenda will contain disclosures by the seller or landlord, use the addenda following the same procedure used when obtaining a seller's disclosure notice. Before preparing an offer, the broker working with the buyer or tenant will need to contact the listing agent for a copy of the addendum completed by the seller or landlord.


If a property was foreclosed upon by a lender and the lender listed the property for sale, must the lender (new owner) comply with the rules?

Yes. The exemption concerning sales at foreclosure is limited to the foreclosure sale itself.


Legal Disclaimer: The material provided here is for informational purposes only and is not intended and should not be considered as legal advice for your particular matter. You should contact your attorney to obtain advice with respect to any particular issue or problem. Applicability of the legal principles discussed in this material may differ substantially in individual situations.

While the Texas Association of REALTORS® has used reasonable efforts in collecting and preparing materials included here, due to the rapidly changing nature of the real estate marketplace and the law, and our reliance on information provided by outside sources, the Texas Association of REALTORS® makes no representation, warranty, or guarantee of the accuracy or reliability of any information provided here or elsewhere on TexasRealEstate.com. Any legal or other information found here, on TexasRealEstate.com, or at other sites to which we link, should be verified before it is relied upon.

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