The federal Lead-Based Paint (LPB) disclosure rules require landlords of "target housing" to provide a warning statement in or attached to leases and also provide a copy of the EPA-approved Brochure. 40 CFR 745.113(b)(1) sets forth language that is to be included in every such lease.

How closely must the language in a lease track the regulatory language? A federal appeals court recently ruled that the landlord must follow the language exactly as set forth in the regulation. The court reviewed the Lead Warning Statement language in the lease sentence by sentence and found numerous discrepancies. For example, the first sentence said that the premises "may have been constructed before 1978" instead of using the statement "Housing built before 1978 may contain lead-base paint." The court said the landlord's language shifted the burden to the tenant to determine if the premises had LBP.

In the second sentence, the EPA text requires warning that lead from paint, paint chips and dust can pose health hazards if not properly managed. The simply said that ingestion of paint partiels containing lead may result in lead poisoning . The court found that this language did not sufficiently warn tenants that steps need to be taken to properly manage LBP.

The third sentence in the lease line did not mention that lead exposure was particularly harmful to young children and pregnant women. Instead, it said that lead poisoning can cause major health problems especially to children under the age of 7. The court felt that this might give false sense of security to parents with childern older than seven.

The lease then contained language that if a member of the tenant's family develops lead poisoning, measures would be required to correct the problem and that the remedy was at the sole cost of the tenant. EPA said and the court agreed that this statement was intended to intimidate tenants and was an unlawful attempt to extract a liability waiver from the tenants. As a result, the court upheld a $97K fine assessed against the owner.  

Property owners frequently use LBP lease language developed by trade associations or their property managers. Consultants performing phase 1 reports for lenders or prospective purchasers are increasingly being asked to review tenant files to verify that the owner has complied with the LBP disclosure rules. the consultants will generally spot-check the files to see if the lease contains a Lead Warning Statement that has been signed by the tenant. This case illustrates the importance of making sure not only that a warning statement is in the lease files but that contains the correct and complete warning statement required by EPA.