Seller Can't Disclose What He Doesn't Know

Special to The Times

Question: I am advertising my house "for sale by owner" but am concerned about the disclosure laws effecting sellers. I'm aware of the requirement to disclose normal building defects, but a friend says I must also inform buyers about the presence of lead paint. Frankly, I haven't the slightest clue whether the paint in my house contains lead, nor would I know how to acquire such information. Please let me know if lead paint disclosure is now a requirement, and if so, what to do about it.

Answer: In 1996, regulations issued by the Environmental Protection Agency and the Department of Housing and Urban Development took effect, requiring disclosure by those who sell, rent or lease certain residential properties built before 1978.

These rules do not require that sellers or landlords perform tests, hire inspectors or otherwise pursue discovery of lead-containing paint. The primary requirement is to disclose whatever information you already possess.

If you are unaware of the lead status of paint in your house, that is all you need to tell a prospective buyer or renter. The only additional information you must provide is a copy of a federally approved lead-based paint hazard pamphlet. This can be obtained from a local real estate office.

The one further requirement is that you allow buyers a 10-day contingency period during which they may arrange for professional lead testing of the painted surfaces. Buyers may waive this right, but sellers must make the option available.

If lead-based paint is found in the building, removal is not a legal requirement and parties to a transaction should not become unduly alarmed, as lead does not pose a health threat by its mere presence. Of primary concern are small children, who have been known to teethe on painted woodwork, such as window sills. Lead paint can be harmful if ingested, particularly by young people.

Regardless of the risk level associated with lead paint, the disclosure law should be taken seriously. Failure to comply may subject property owners to penalties including criminal prosecution, court-imposed punitive damages and fines up to $10,000.

Exceptions to the lead paint disclosure law are limited to two types of property. Houses that were acquired through foreclosure by banks or other creditors are exempt because the owners in such cases are presumably unaware of specific property conditions, having not been in personal possession or occupancy.

Also excluded from the lead paint disclosure requirement are houses designed for elderly or disabled people, particularly when children younger than 6 years old are not in residence.

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If you have questions or comments, contact Barry Stone through his Web site at www.housedetective.com. Distributed by Access Media Group.

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