Residents in Flint, Michigan recently learned that they have been drinking water highly contaminated with lead and the problem has persisted now for some time. This is due, in part, to a failure to act, but also because lead is a persistent element… it doesn’t break down. Those who pay attention to issues of public concern also know that Flint is not all that unusual. Many places have inadequate protections against lead. Lead is in paint, water and soil but there are ways to prevent and reduce exposures, some of which cost very little or nothing at all. Proper disclosure raises awareness. It can start with the EPA pamphlet Protect Your Family from Lead in Your Home. This brochure is a mandatory requirement before a buyer or lessee is obligated.
Experts who work with lead know that the benefits of preventing lead exposure far outweigh the costs of taking action and that there is an overwhelming case for paying attention and investing in lead hazard reduction.
The current Administration is proposing many changes in federal enforcement, policy, and regulations, and it may be tempting at this point to think that it is no longer necessary to really pay much attention to the issue of lead, or consider investing in exposure reduction, because the risk of getting into trouble is reduced. This is a mistake.
A certain kind of risk may be reduced in the short-term, but other types of risks persist. Lead persists. The risks are severe and probable enough that no professional should feel intelligent in veering from the path of responsibility due to a perceived drop in potential liability. Not only has the potential for private civil liability increased (not least because of the advances in our understanding of how lead harm occurs and how it can be prevented) but also because plaintiffs are more likely to go to court out of conviction. They want to right a wrong and are compelled to seek justice. Once lead enters the body, it can cause long-term harm and prevention is critically important to the health and wealth of a community. Failure to exercise proper care risks various liabilities. Failure to responsibly manage the problem of lead is a business, legal and moral issue. In addition, administrations change and a new administration can look back and enforce violations quite easily. The lead laws work by placing the requirement to document compliance on the regulated party.
Real estate agents are well advised to know and be faithful to the full requirements of the lead disclosure law. All real estate professionals should either observe or insist on full compliance with the Renovation Rule, even though this rule has been targeted by the Administration. These rules represent only one facet of the law, not the whole law, and compliance is just the beginning of awareness. By fully appreciating the purpose of these laws, and understanding the value in investments in lead hazard reduction, real estate professionals can attract business, improve their reputation, preserve the value of their properties and reduce the possibility of lawsuits.
In addition, investments in lead hazard reduction can be combined with improvements in energy efficiency and aesthetics. Properly planned, they minimize budget constraints.
Rick Reibstein has taught lead compliance to real estate professionals since 2004, after serving as an enforcement attorney at the U.S. Environmental Protection Agency. He currently teaches environmental law and policy at Boston University and the Harvard Extension School and is a frequent Instructor for the Arthur Gary School of Real Estate.