ATTACHMENT 2

Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards
Upon Sale or Lease of Residential Property

 40 CFR 745, Subpart F

TITLE 40--PROTECTION OF ENVIRONMENT

 

CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 745--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN RESIDENTIAL
STRUCTURES

 

Subpart F--Disclosure of Known Lead-Based Paint and/or Lead-Based Paint
Hazards Upon Sale or Lease of Residential Property

 

Sec. 745.100  Purpose.

    This subpart implements the provisions of 42 U.S.C. 4852d, which
impose certain requirements on the sale or lease of target housing.
Under this subpart, a seller or lessor of target housing shall disclose
to the purchaser or lessee the presence of any known lead-based paint
and/or lead-based paint hazards; provide available records and reports;
provide the purchaser or lessee with a lead hazard information pamphlet;
give purchasers a 10-day opportunity to conduct a risk assessment or
inspection; and attach specific disclosure and warning language to the
sales or leasing contract before the purchaser or lessee is obligated
under a contract to purchase or lease target housing.

 

Sec. 745.101  Scope and applicability.

    This subpart applies to all transactions to sell or lease target
housing, including subleases, with the exception of the following:

    (a) Sales of target housing at foreclosure.

    (b) Leases of target housing that have been found to be lead-based
paint free by an inspector certified under the Federal certification
program or under a federally accredited State or tribal certification
program. Until a Federal certification program or federally accredited
State certification program is in place within the State, inspectors
shall be considered qualified to conduct an inspection for this purpose
if they have received certification under any existing State or tribal
inspector certification program. The lessor has the option of using the
results of additional test(s) by a certified inspector to confirm or
refute a prior finding.

    (c) Short-term leases of 100 days or less, where no lease renewal or
extension can occur.

    (d) Renewals of existing leases in target housing in which the
lessor has previously disclosed all information required under Sec.
745.107 and where no new information described in Sec. 745.107 has come
into the possession of the lessor. For the purposes of this paragraph,
renewal shall include both renegotiation of existing lease terms and/or
ratification of a new lease.

 

Sec. 745.102  Effective dates.

    The requirements in this subpart take effect in the following
manner:

    (a) For owners of more than four residential dwellings, the
requirements shall take effect on September 6, 1996.

    (b) For owners of one to four residential dwellings, the
requirements shall take effect on December 6, 1996.

Sec. 745.103  Definitions.

    The following definitions apply to this subpart.

    The Act means the Residential Lead-Based Paint Hazard Reduction Act
of 1992, 42 U.S.C. 4852d.

    Agent means any party who enters into a contract with a seller or
lessor, including any party who enters into a contract with a
representative of the seller or lessor, for the purpose of selling or
leasing target housing. This term does not apply to purchasers or any
purchaser's representative who receives all compensation from the
purchaser.

    Available means in the possession of or reasonably obtainable by the
seller or lessor at the time of the disclosure.

    Common area means a portion of a building generally accessible to
all residents/users including, but not limited to, hallways, stairways,
laundry and recreational rooms, playgrounds, community centers, and
boundary fences.

    Contract for the purchase and sale of residential real property
means any contract or agreement in which one party agrees to purchase an
interest in real property on which there is situated one or more
residential dwellings used or occupied, or intended to be used or
occupied, in whole or in part, as the home or residence of one or more
persons.

    EPA means the Environmental Protection Agency.

    Evaluation means a risk assessment and/or inspection.

    Foreclosure means any of the various methods, statutory or
otherwise, known in different jurisdictions, of enforcing payment of a
debt, by the taking and selling of real property.

    Housing for the elderly means retirement communities or similar
types of housing reserved for households composed of one or more persons
62 years of age or more at the time of initial occupancy.

    HUD means the U.S. Department of Housing and Urban Development.

    Inspection means:

    (1) A surface-by-surface investigation to determine the presence of
lead-based paint as provided in section 302(c) of the Lead-Based Paint
Poisoning and Prevention Act [42 U.S.C. 4822], and

    (2) The provision of a report explaining the results of the
investigation.

    Lead-based paint means paint or other surface coatings that contain
lead equal to or in excess of 1.0 milligram per square centimeter or 0.5
percent by weight.

    Lead-based paint free housing means target housing that has been
found to be free of paint or other surface coatings that contain lead
equal to or in excess of 1.0 milligram per square centimeter or 0.5
percent by weight.

    Lead-based paint hazard means any condition that causes exposure to
lead from lead-contaminated dust, lead-contaminated soil, or
lead-contaminated paint that is deteriorated or present in accessible
surfaces, friction surfaces, or impact surfaces that would result in
adverse human health effects as established by the appropriate Federal
agency.

    Lessee means any entity that enters into an agreement to lease,
rent, or sublease target housing, including but not limited to
individuals, partnerships, corporations, trusts, government agencies, 

housing agencies, Indian tribes, and nonprofit organizations.

    Lessor means any entity that offers target housing for lease, rent,
or sublease, including but not limited to individuals, partnerships,
corporations, trusts, government agencies, housing agencies, Indian
tribes, and nonprofit organizations.

    Owner means any entity that has legal title to target housing,
including but not limited to individuals, partnerships, corporations,
trusts, government agencies, housing agencies, Indian tribes, and
nonprofit organizations, except where a mortgagee holds legal title to
property serving as collateral for a mortgage loan, in which case the
owner would be the mortgagor.

    Purchaser means an entity that enters into an agreement to purchase
an interest in target housing, including but not limited to individuals,
partnerships, corporations, trusts, government agencies, housing
agencies, Indian tribes, and nonprofit organizations.

    Reduction means measures designed to reduce or eliminate human
exposure to lead-based paint hazards through methods including interim
controls and abatement.

    Residential dwelling means:

    (1) A single-family dwelling, including attached structures such as
porches and stoops; or

    (2) A single-family dwelling unit in a structure that contains more
than one separate residential dwelling unit, and in which each such unit
is used or occupied, or intended to be used or occupied, in whole or in
part, as the residence of one or more persons.

    Risk assessment means an on-site investigation to determine and
report the existence, nature, severity, and location of lead-based paint
hazards in residential dwellings, including:

    (1) Information gathering regarding the age and history of the
housing and occupancy by children under age 6;

    (2) Visual inspection;

    (3) Limited wipe sampling or other environmental sampling
techniques;

    (4) Other activity as may be appropriate; and

    (5) Provision of a report explaining the results of the
investigation.

    Secretary means the Secretary of Housing and Urban Development.

    Seller means any entity that transfers legal title to target
housing, in whole or in part, in return for consideration, including but
not limited to individuals, partnerships, corporations, trusts,
government agencies, housing agencies, Indian tribes, and nonprofit
organizations. The term ``seller'' also includes:

    (1) An entity that transfers shares in a cooperatively owned
project, in return for consideration; and

    (2) An entity that transfers its interest in a leasehold, in
jurisdictions or circumstances where it is legally permissible to
separate the fee title from the title to the improvement, in return for 

consideration.

    Target housing means any housing constructed prior to 1978, except
housing for the elderly or persons with disabilities (unless any child
who is less than 6 years of age resides or is expected to reside in such
housing) or any 0-bedroom dwelling.

    TSCA means the Toxic Substances Control Act, 15 U.S.C. 2601.

    0-bedroom dwelling means any residential dwelling in which the
living area is not separated from the sleeping area. The term includes
efficiencies, studio apartments, dormitory housing, military barracks,
and rentals of individual rooms in residential dwellings.

 

Sec. 745.107  Disclosure requirements for sellers and lessors.

    (a) The following activities shall be completed before the purchaser
or lessee is obligated under any contract to purchase or lease target
housing that is not otherwise an exempt transaction pursuant to Sec.
745.101. Nothing in this section implies a positive obligation on the
seller or lessor to conduct any evaluation or reduction activities.

    (1) The seller or lessor shall provide the purchaser or lessee with
an EPA-approved lead hazard information pamphlet. Such pamphlets include
the EPA document entitled Protect Your Family From Lead in Your Home
(EPA 747-K-94-001) or an equivalent pamphlet that has been approved for
use in that State by EPA.

    (2) The seller or lessor shall disclose to the purchaser or lessee
the presence of any known lead-based paint and/or lead-based paint
hazards in the target housing being sold or leased. The seller or lessor
shall also disclose any additional information available concerning the
known lead-based paint and/or lead-based paint hazards, such as the
basis for the determination that lead-based paint and/or lead-based
paint hazards exist, the location of the lead-based paint and/or
lead-based paint hazards, and the condition of the painted surfaces.

    (3) The seller or lessor shall disclose to each agent the presence
of any known lead-based paint and/or lead-based paint hazards in the
target housing being sold or leased and the existence of any available
records or reports pertaining to lead-based paint and/or lead-based
paint hazards. The seller or lessor shall also disclose any additional
information available concerning the known lead-based paint and/or
lead-based paint hazards, such as the basis for the determination that
lead-

based paint and/or lead-based paint hazards exist, the location of the
lead-based paint and/or lead-based paint hazards, and the condition of
the painted surfaces.

    (4) The seller or lessor shall provide the purchaser or lessee with
any records or reports available to the seller or lessor pertaining to
lead-based paint and/or lead-based paint hazards in the target housing
being sold or leased. This requirement includes records or reports
regarding common areas. This requirement also includes records or
reports regarding other residential dwellings in multifamily target
housing, provided that such information is part of an evaluation or 

reduction of lead-based paint and/or lead-based paint hazards in the
target housing as a whole.

    (b) If any of the disclosure activities identified in paragraph (a)
of this section occurs after the purchaser or lessee has provided an
offer to purchase or lease the housing, the seller or lessor shall
complete the required disclosure activities prior to accepting the
purchaser's or lessee's offer and allow the purchaser or lessee an
opportunity to review the information and possibly amend the offer.

 

Sec. 745.110  Opportunity to conduct an evaluation.

    (a) Before a purchaser is obligated under any contract to purchase
target housing, the seller shall permit the purchaser a 10-day period
(unless the parties mutually agree, in writing, upon a different period
of time) to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards.

    (b) Not withstanding paragraph (a) of this section, a purchaser may
waive the opportunity to conduct the risk assessment or inspection by so
indicating in writing.

Sec. 745.113  Certification and acknowledgment of disclosure.

    (a) Seller requirements. Each contract to sell target housing shall
include an attachment containing the following elements, in the language
of the contract (e.g., English, Spanish):

    (1) A Lead Warning Statement consisting of the following language:

    Every purchaser of any interest in residential real property on
which a residential dwelling was built prior to 1978 is notified that
such property may present exposure to lead from lead-based paint that
may place young children at risk of developing lead poisoning. Lead
poisoning in young children may produce permanent neurological damage,
including learning disabilities, reduced intelligence quotient,
behavioral problems, and impaired memory. Lead poisoning also poses a 

particular risk to pregnant women. The seller of any interest in
residential real property is required to provide the buyer with any
information on lead-based paint hazards from risk assessments or 

inspections in the seller's possession and notify the buyer of any known
lead-based paint hazards. A risk assessment or inspection for possible
lead-based paint hazards is recommended prior to purchase.

    (2) A statement by the seller disclosing the presence of known
lead-based paint and/or lead-based paint hazards in the target housing
being sold or indicating no knowledge of the presence of lead-based
paint and/or lead-based paint hazards. The seller shall also provide any


additional information available concerning the known lead-based paint
and/or lead-based paint hazards, such as the basis for the determination
that lead-based paint and/or lead-based paint hazards exist, the
location of the lead-based paint and/or lead-based paint hazards, and 

the condition of the painted surfaces.

    (3) A list of any records or reports available to the seller
pertaining to lead-based paint and/or lead-based paint hazards in the
housing that have been provided to the purchaser. If no such records or
reports are available, the seller shall so indicate.

    (4) A statement by the purchaser affirming receipt of the
information set out in paragraphs (a)(2) and (a)(3) of this section and
the lead hazard information pamphlet required under 15 U.S.C. 2696.

    (5) A statement by the purchaser that he/she has either:

    (i) Received the opportunity to conduct the risk assessment or
inspection required by Sec. 745.110(a); or

    (ii) Waived the opportunity.

    (6) When one or more agents are involved in the transaction to sell
target housing on behalf of the seller, a statement that:

    (i) The agent has informed the seller of the seller's obligations
under 42 U.S.C. 4852d; and

    (ii) The agent is aware of his/her duty to ensure compliance with
the requirements of this subpart.

    (7) The signatures of the sellers, agents, and purchasers
certifying to the accuracy of their statements to the best of their
knowledge, along with the dates of signature.

    (b) Lessor requirements. Each contract to lease target housing shall
include, as an attachment or within the contract, the following
elements, in the language of the contract (e.g., English, Spanish):

    (1) A Lead Warning Statement with the following language:

    Housing built before 1978 may contain lead-based paint. Lead from
paint, paint chips, and dust can pose health hazards if not managed
properly. Lead exposure is especially harmful to young children and
pregnant women. Before renting pre-1978 housing, lessors must disclose
the presence of lead-based paint and/or lead-based paint hazards in the
dwelling. Lessees must also receive a federally approved pamphlet on
lead poisoning prevention.

    (2) A statement by the lessor disclosing the presence of known
lead-based paint and/or lead-based paint hazards in the target housing
being leased or indicating no knowledge of the presence of lead-based
paint and/or lead-based paint hazards. The lessor shall also disclose
any additional information available concerning the known lead-based
paint and/or lead-based paint hazards, such as the basis for the
determination that lead-based paint and/or lead-based paint hazards
exist, the location of the lead-based paint and/or lead-based paint
hazards, and the condition of the painted surfaces.

    (3) A list of any records or reports available to the lessor
pertaining to lead-based paint and/or lead-based paint hazards in the
housing that have been provided to the lessee. If no such records or
reports are available, the lessor shall so indicate.

    (4) A statement by the lessee affirming receipt of the information
set out in paragraphs (b)(2) and (b)(3) of this section and the lead
hazard information pamphlet required under 15 U.S.C. 2696.

    (5) When one or more agents are involved in the transaction to lease
target housing on behalf of the lessor, a statement that:

    (i) The agent has informed the lessor of the lessor as obligations
under 42 U.S.C. 4852d; and

    (ii) The agent is aware of his/her duty to ensure compliance with
the requirements of this subpart.

    (6) The signatures of the lessors, agents, and lessees, certifying
to the accuracy of their statements, to the best of their knowledge,
along with the dates of signature.

    (c) Retention of Certification and Acknowledgment Information.

    (1) The seller, and any agent, shall retain a copy of the completed
attachment required under paragraph (a) of this section for no less than
3 years from the completion date of the sale. The lessor, and any agent,
shall retain a copy of the completed attachment or lease contract
containing the information required under paragraph (b) of this section
for no less than 3 years from the commencement of the leasing period.

    (2) This recordkeeping requirement is not intended to place any
limitations on civil suits under the Act, or to otherwise affect a
lessee's or purchaser's rights under the civil penalty provisions of 42
U.S.C. 4852d(b)(3).

    (d) The seller, lessor, or agent shall not be responsible for the
failure of a purchaser's or lessee's legal representative (where such
representative receives all compensation from the purchaser or lessee)
to transmit disclosure materials to the purchaser or lessee, provided
that all required parties have completed and signed the necessary
certification and acknowledgment language required under paragraphs (a)
and (b) of this section.

Sec. 745.115  Agent responsibilities.

    (a) Each agent shall ensure compliance with all requirements of this
subpart. To ensure compliance, the agent shall:

    (1) Inform the seller or lessor of his/her obligations under Secs.
745.107, 745.110, and 745.113.

    (2) Ensure that the seller or lessor has performed all activities
required under Secs. 745.107, 745.110, and 745.113, or personally ensure
compliance with the requirements of Secs. 745.107, 745.110, and 745.113.

    (b) If the agent has complied with paragraph (a)(1) of this section,
the agent shall not be liable for the failure to disclose to a purchaser
or lessee the presence of lead-based paint and/or lead-based paint
hazards known by a seller or lessor but not disclosed to the agent.

Sec. 745.118  Enforcement.

    (a) Any person who knowingly fails to comply with any provision of
this subpart shall be subject to civil monetary penalties in accordance
with the provisions of 42 U.S.C. 3545 and 24 CFR part 30.    (b) The
Secretary is authorized to take such action as may be necessary to
enjoin any violation of this subpart in the appropriate Federal district
court.

    (c) Any person who knowingly violates the provisions of this subpart
shall be jointly and severally liable to the purchaser or lessee in an
amount equal to 3 times the amount of damages incurred by such
individual.

    (d) In any civil action brought for damages pursuant to 42 U.S.C.
4852d(b)(3), the appropriate court may award court costs to the party
commencing such action, together with reasonable attorney fees and any
expert witness fees, if that party prevails.

    (e) Failure or refusal to comply with Sec. 745.107 (disclosure
requirements for sellers and lessors), Sec. 745.110 (opportunity to
conduct an evaluation), Sec. 745.113 (certification and acknowledgment
of disclosure), or Sec. 745.115 (agent responsibilities) is a violation
of 42 U.S.C. 4852d(b)(5) and of TSCA section 409 (15 U.S.C. 2689).

    (f) Violators may be subject to civil and criminal sanctions
pursuant to TSCA section 16 (15 U.S.C. 2615) for each violation. For
purposes of enforcing this subpart, the penalty for each violation
applicable under 15 U.S.C. 2615 shall not be more than $11,000 for all
violations occurring after July 28, 1997; all violations occurring on or
prior to that date are subject to a penalty not more than $10,000.

[61 FR 9085, Mar. 6, 1996, as amended at 62 FR 35041, June 27, 1997]

Sec. 745.119  Impact on State and local requirements.

    Nothing in this subpart shall relieve a seller, lessor, or agent
from any responsibility for compliance with State or local laws,
ordinances, codes, or regulations governing notice or disclosure of
known lead-based paint or lead-based paint hazards. Neither HUD nor EPA
assumes any responsibility for ensuring compliance with such State or
local requirements.

