Does Lack of Lead Notice and EPA Pamphlet Nulify a Lease

Does the lack of the EPA’s Lead Paint Disclosure for a property that is later discovered to have lead in the water pipes, the tub enamel and flaking paint cause a lease to be null and void? I have read in the EPA documentation that “before a purchaser or lessee is obligated under any contract to purchase or lease target housing, certain requirements must be met.” These include the EPA lead paint pamphlet, disclosure of any known lead in the house, etc. I leased a house in western Pa then a year and a half into a 2 year lease we left. There were 4 children, 2 teenagers and 2 seven year olds drinking and bathing in that house. Since it was not disclosed or the pamphlet given then the lease should have been void and no obligation exist.

Please advise.

Thank you for your time.

[OHlandlord]

You would have to consult PA law and the Housing Authority to see if this omission would void a lease or not. Many times, a simple omission or error does not void a lease. There are also some exceptions to many of the laws, so you need to check those out to see if the rental was exempt from the requirement for some reason (but I doubt it). Please check your state law and the National Lead Information Center to get more information about the requirements and any consequences.

The other issue is the fact that you broke the lease before it expired. You would need to show good cause to break the lease to remove your liability for it. Had anyone in the household tested positive for lead? Were the occupants tested? Was there lead testing done on the premises itself? Any test results from a competent authority to prove lead in the house? The truth of the matter is that most houses have some lead in them somewhere. All paint made before 1978 had lead in it, so it is under layers of paint in most places.

The tub enamal is not a problem. It merely shows the tub is an old one. As long as the tub is intact, the lead paint in it is encapsulated and cannot escape. The only time lead paint is a problem is when it is not encapsulated or intact. When the paint is flaking or oxidizing, there is a danger of lead exposure. Were the paint chips tested to show lead? Was the water tested to show lead levels above the allowable level as regulated by the EPA or the water quality district?

You will need to show just cause to be released from liability from the lease. If you have any of the above results from tests, please post them so we can determine your liability. Also, do you have a copy of your lease to show that no lead disclosure statement was made in it?

My children were sicker that year than at any other time. My 7yr old son had his tonsils and adenoids removed and the doctor said at the least it was agravated by mold that was also in the house but no tests were run. We did home tests for mold and lead and both came back positive. The tub was an issue becuase there were several spots where the paint had been chipped or otherwise removed. At the time, I didn't send samples out becuase the owner said he would work with us. In fact at one time were given a payment schedule and told that as long as we were out by 9/31 there would be no problems. The 9/31 date turned out to be difficult and we asked if they minded if we had a one month extension. Instead of saying "No I want you out" he filed suit for breach. I may still have some of the samples I took but there's no easy way to prove that they actually came from that house unless the current owners would let me in. Is that worth persuing?

Thanks

[OHlandlord]

Sorry for the delay. I tried to post yesterday, but there was a problem and it didn't go through. To repeat what I tried to say yesterday...

You failed to get testing done at that time. The home tests that are sold in the big box stores and discount stores are not reliable. Those tests for mold will always show mold. Mold is found almost everywhere. Many types of mold are not bad, only 1% of all strains of mold (the black mold) is dangerous. The rest are just normal everyday variety that cause no problems unless you are allergic to mold. Some strains are even good for you (penicillin and the type in blue cheese come to mind). Without a test done by a reliable source (an air quality company or your health department) that shows the strains of mold and the amount, the test you did was useless. It does not prove what type of mold there was or the amount. It does not show that it was not healthy for you to live there. It merely said there was mold. There is mold in the dirt on the playground, in the air outside after a rain, in any forest. It is no help.

The same goes for the lead testing. While the tests from those same stores are more accurate, they still are not useful. Nearly every house has lead in it somewhere. Every brand of paint made before 1978 had lead in it. So somewhere under layers of paint in any old house is a paint that contains lead. At one time all those old pipes where soldered together with lead. (That's just how it was done back then.) The fact that there was lead paint on the tub, in the house, or used in the solder that held the pipes together is not enough evidence.

Lead paint is not usually a hazard when it is intact and is not oxidizing. The tub enamel is not coming off onto your body when you stand in there unless it is peeling off or is decayed to the point that it is turning into dust. (And you would have to eat those flakes of paint to show lead problems, although you could just breathe or swallow the dust.) But if the tub paint was turning to dust, it would be washed down the drain every time you turned the water on. The same goes for paint on the wall. If encased under other paint it is fine. The only time it is hazardous is when it is peeling or turning to dust.

You said the paint was peeling. But you did not get testing done on the paint to prove it contained lead in the paint chips. This test needs to be done by a reliable source (the EPA or the National Lead Information Center). You also would have needed to get the water tested by a reliable source to show there was lead in the drinking water that exceeded federally acceptable levels (from the EPA, the utility company, or a water quality company). You would need these tests to show that the lead was present.

Alternately, you could have had the children and yourself tested to see if you had levels of lead in your blood. (Illnesses or tonsil problems aren't proof of lead. They could just be viruses spreading through school or daycare centers.) Showing a positive test while you lived at the house would have been sufficient cause to get the health department to test the house and issue a citation to the owner, forcing him to re-mediate the problems. This would have shown the house had lead and that it was unhealthy to live there. Since you have no such tests, you can't prove the place wasn't fit to live in.

So what it boils down to is that you didn't get the evidence you needed while you lived there. You should have gotten the proper tests done for lead or mold if you were concerned about them. You could have had blood tests done on the members to check for the lead. Now it is too late. Anything that would show up now can't be proved to have been the result of living there then. You could have picked it up somewhere else in the last 5 months.
So you have no evidence that it wasn't safe to live there. Thus you have no reason (or at least you can't show one in court) for breaking your lease.

The fact that the paperwork wasn't done properly may not be enough to void your lease either. Many times a judge will still accept a lease, even if an error was done when it was signed. It may not be enough to invalidate the lease, but I don't know for sure. You could check your state law and see what it says about this or contact the National Lead Information Center to see what the consequences are for failing to fill out this form. Good luck.

I understand all that now. The only reason we didn't was that when we asked to be let out, he initially agreed. Pay up through September and be out by 9/31 and all is clear. On 9/18 he changed his mind and filed suit. Then we should have tested but didn't.

I guess its my loss - but one heck of a learning lesson.