Owners of Pre-1978 Buildings, Take Notice

Article written by Christopher Blanchard
Posted on Jun 28, 2011

In 2008 the Vermont Legislature amended 18 V.S.A. Chapter 38 in an effort to better protect individuals from lead poisoning within the State. Owners of pre-1978 housing have a duty of reasonable care to prevent exposure to or creation of lead hazards. Vermont’s stronger stance on regulating lead exposure in pre-1978 residential buildings is significant and any property owner of a pre-1978 owner-occupied or rental property should take notice of the new law. Together, the Office of the Attorney General and Vermont Department of Health has created a lead enforcement team to enforce the new Vermont Lead Law. Enforcement actions are being strictly applied and enforcement penalties for non-compliance are becoming greater and applied more frequently.

According to 18 V.S.A. §1767, the office of the Attorney General and the Vermont Department of Health, prior to executing a purchase and sale agreement, a seller of a pre-1978 single-family dwelling or rental property must provide a proposed buyer with a Vermont Lead Law Real Estate Transaction Disclosure Form Part I and a lead paint hazard brochure as well as the following lead paint hazard materials approved by the Vermont Department of Health: (1) Protect Your Family From Lead in Your Home; (2) Lead Hazards in Housing; (3) Real Estate Transactions and the Vermont Lead Law. In addition to these items, at the closing a seller must provide the buyer with a Vermont Lead Law Real Estate Transaction Disclosure Form Part II and a copy of Don’t Spread Lead, (information about lead-safe renovation practices).

If the sale involves a pre-1978 rental property a seller has further responsibilities in addition to those above. Prior to the execution of a purchase and sale contract with a proposed purchaser, a seller of a pre-1978 rental property must verify that Essential Maintenance Practices (“EMP”) have been completed and an EMP Compliance Statement has been filed with the Vermont Department Health. In the event a court order, assurance of discontinuance or administrative order applies to the subject property, unless all terms of any such order have been completed, a seller must disclose such information to a proposed purchaser prior to the execution of the purchase and sale agreement and again at the closing. If the seller does not complete all of the obligations under any such court order, assurance of discontinuance or administrative order prior to the completion of the sale of the property, the order must be amended to transfer all uncompleted obligations to the purchaser of the subject property. Also, prior to the closing, a seller must provide a proposed purchaser with a copy of the Vermont Department of Health information sheet: Essential Maintenance Practices & The Vermont Lead Law.

Although non-compliance does not affect the marketability of title to a property, a purchaser should be cautious when purchasing pre-1978 rental property. If the sale property is not in compliance with the Vermont Lead Law at the time of the sale the purchaser of such property must bring the property in to full EMP compliance within sixty (60) days of the closing (unless the purchaser has received an extension from the Commissioner of the Vermont Department of Health). Any purchaser who does not comply with these responsibilities is subject to mandatory civil penalties.

With regard to the rental of pre-1978 property, unless the property has been certified as being lead free by a lead inspector, an owner or landlord of a pre-1978 rental property is required to ensure that certain EMP obligations as set forth in 18 V.S.A. §1759, are performed annually and upon the commencement of any new tenancy. EMP obligations include posting a notice to occupants emphasizing the importance of promptly reporting deteriorated paint to the landlord or to the landlord’s agent, the annual inspection of all painted surfaces, specialized cleaning of units prior to any new tenancy or after any work is performed that disturbs paint, the specialized cleaning of interior common areas and the removal of all visible paint chips on the property. In addition if lead-based paint has been identified a landlord is required to assure that all surfaces are free of deteriorated lead-based paint within thirty (30) days after such identification or within thirty (30) days after receipt of a written or oral report of the presence of deteriorated lead-based paint from any person. For a complete list of EMP obligations please see 18 V.S.A. §1759. Please be advised that EMPs may only be performed by individuals who have successfully completed an approved EMP training program.

An EMP Compliance Statement certifying that all EMP obligations have been complied with, must be filed with the Vermont Department of Health and the insurer of the property annually. A landlord is also required to provide tenants at the signing of their lease with an EMP Compliance Statement and annually thereafter when the annual statement is filed with the Vermont Department of Health. In the event that a child care facility operates in the rental property, an EMP Compliance Statement must also be filed with the Department for Children and Families annually. Please note that the EMP requirements apply to any lodging for transient occupancy, including hotels and motels, rented for more than thirty (30) days and also to all property managers providing maintenance services unless their contract explicitly states that they are not responsible for EMP obligations.

It is important that EMP requirements are complied with because enforcement actions are being regularly assessed. “A person who violates section 1759 of . . . title [18] commits a civil violation and shall be subject to a civil penalty as set forth in . . . subsection [1760a(a)] which shall be enforceable by the commissioner in the judicial bureau pursuant to the provisions of chapter 29 of Title 4” of the Vermont State Statutes Annotated. 18 V.S.A. §1760a(a). In addition to the civil penalties which may be assessed under Title 18, the Attorney General has also begun establishing the practice of filing a consumer fraud action under 9 V.S.A. §2453 for unfair or deceptive acts or practices in commerce, against owners and landlords for renting or offering for rent rental target housing that does not comply with the new Vermont Lead Law. This is significant because a suspected violation of 9 V.S.A. §2453 allows the Attorney General to request and inspect an owner or landlord’s records, books, files, etc., during its investigation. 9 V.S.A. §2460. It also exposes an owner or landlord to further monetary penalties, including a fine of up to $10,000.00 per violation. 9 V.S.A. §2458(b)(1). In January, 2009 a $22,000.00 penalty was assessed against a rental property owner for filing false EMP Compliance Statements. Even more recently, in March, 2009 the Attorney General continued its pursuit of strictly enforcing the new Vermont Lead Law and filed suit against a southern Vermont landlord for lead paint violations and failing to comply with EMP requirements. Although currently enforcement actions are only enforced under an assurance of discontinuance, a consent decree or a court action, commencing January 1, 2010, the Vermont Department of Health will have legal authority to issue civil penalties directly, in the form of fines to anyone failing to file EMP Compliance Statements by their respected due dates. Landlords and owners should also be aware that it is in the Department of Health’s discretion to grant or deny a landlord or owner’s request for an extension to file the required EMP Compliance Statements. 18 V.S.A. §1759(d).

The Attorney General and the Vermont Department of Health seem committed to strictly enforcing the new Vermont Lead Law and any owner of a pre-1978 property should take appropriate actions to comply, otherwise they could be assessed monetary penalties in addition to the cost of remediation. Please note that whether an owner occupied dwelling or rental property, lead safe work practices must be followed when a pre-1978 building is undergoing repair and maintenance. For more information on lead safe work practices see Lead Hazards in Housing. The required forms and publications are available on the Vermont Attorney General’s website at http://www.atg.state.vt.us and the Vermont Department of Health website at http://www.healthvermont.gov. The statute is located at 18 V.S.A. Chapter 38.

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