Jonathan P. Hunter, Attorney, Rudman Winchell
Over eighty percent of all homes built prior to 1978 contain lead-based paint. The Lead Poisoning Control Act, 22 M.R.S. §§ 1314-1329, originally enacted in 1973, attempts to address the health hazards posed by lead paint and other lead-based products. In doing so, however, the Act presents several challenges for Maine landlords.
Pursuant to the Act, the Department of Health and Human Services (DHHS) may inspect any dwelling unit when there are reasonable grounds to suspect that there are lead-based substances on the exposed surfaces of the unit, at the request of the owner or occupant with whom children reside, or upon a report of lead poisoning.
If DHHS concludes that a dwelling contains an environmental lead hazard, which includes any condition that may cause exposure to lead from lead paint that is in poor condition, DHHS must give notice of the hazard to the owner and occupants. DHHS will also order that the lead-based substances be removed, replaced, or securely and permanently covered within thirty days in accordance with rules adopted by the Department of Environmental Protection.
The good news for both landlords and tenants is that most lead abatement projects take less than two weeks. In the meantime, however, the owner cannot knowingly rent the unit to new tenants.
The landlord’s responsibilities are more onerous if a lead hazard is discovered in a unit already being rented to a family with children. Until the hazard is addressed, the owner must move the tenants to a substitute unit after giving reasonable notice. The owner is responsible for the tenants’ reasonable moving expenses and any use and occupancy expenses exceeding the rent for the vacated unit. The tenants may not be evicted on the basis of the lead hazard.
There are some notable qualifications to the landlord’s responsibility to provide substitute housing during the lead abatement process. First, the substitute unit provided by the landlord need not be one that the tenant prefers—it need only be lead-safe and similar in location and accommodation to the vacated unit. Second, DHHS has the discretion to waive the requirement of moving a tenant to a substitute unit if it determines that adequate measures can be taken to limit exposure to the lead hazard until it is fully abated.
Any landlord with properties built before the 1980s is likely to have to address a lead paint issue at some point in the future. In the event that a lead hazard is discovered, landlords should protect themselves by seeking the advice of an attorney. The Act is complex and the penalties for noncompliance can be severe. By promptly and properly complying with the required abatement procedures, landlords can keep their tenants safe while minimizing the strain on their business.