Relating to Real Estate

Maryland’s Reduction of Lead Risk in Housing Act, Md. Code Ann., Env’t. §6‑801 et seq. (2018) (the “Act”), was enacted in the mid-1990s with the purpose of reducing incidences of childhood lead poisoning while maintaining affordable rental housing. Compliance with the Act is mandatory for owners of “Affected Properties,” defined under the Act as a property built prior to 1978 and containing at least one rental dwelling unit. A “rental dwelling unit” is defined under the Act as a room or group of rooms that form a single, independent, habitable, rental unit for permanent occupation by one or more individuals that has living facilities with permanent provisions for living, sleeping, eating, cooking, and sanitation. A rental dwelling unit does not include an area not used for living, sleeping, eating, cooking, or sanitation, such as an unfinished basement or a unit within a hotel, motel, or seasonal or transient facility.

The Maryland Department of Environment (“MDE”) has authority to enforce the provisions of the Act. To comply with the Act, owners must do the following with respect to Affected Properties:

Register. Owners must register all Affected Properties within thirty (30) days of acquisition or purchase. The cost for registration is $30.00 per unit, and can be submitted on-line at MDE’s website (www.mde.maryland.gov) or through paper form.

Renew. Owners must renew the registration for Affected Properties annually on or before December 31. Like registration, renewal can be done on-line at MDE’s website or can be done through a pre-printed renewal form.

Meet the Risk Reduction Standard. Owners of Affected Properties must meet the full risk reduction standard set forth in the Act at each change of occupancy in a unit. This is done by having the Affected Property pass an inspection for lead contaminated dust performed by an MDE-accredited lead inspector. To pass the inspection, the Affected Property must be free of defective paint on the interior and exterior. Once the Affected Property has passed inspection, the lead inspector will issue a Lead Paint Risk Reduction Certificate and supporting documentation. The owner of an Affected Property should provide one copy to each tenant and keep one for the owner’s records. A copy should also go to MDE.

If, during the term of a tenancy, an owner receives notice in writing of paint defects at the Affected Property or an “Elevated Blood Lead Level” (greater than 10 µg/dl) for a child under age 6 or a pregnant woman who resides at the Affected Property, the owner must perform a modified risk reduction within thirty (30) days. This is done by either (1) providing permanent relocation of all tenants to a property that has been certified lead-free or certified in compliance with the full risk reduction standard; or (2) providing temporary relocation of all tenants to a certified lead-free property or one that complies with the full risk reduction standard while all necessary work is performed so that the Affected Property can obtain a modified Lead Paint Risk Reduction Certificate prior to the time that tenants return to the Affected Property.

Distribute Tenant Education Information. Owners must provide a Notice of Tenant’s Rights to their tenants at the inception of the tenancy and every two (2) years thereafter. The Notice provides tenants with an explanation of their legal rights under the Act, advising tenants on what owners must do to comply with the Act as well as what tenants must do to inform landlords that repairs need to be performed. The Notice also advises tenants on steps they can take to enforce their legal rights. This Notice must be provided via certified mail or in a manner verifiable by MDE.

Owners must also provide tenants with lead poisoning information pamphlets at the inception of each tenancy and every two (2) years thereafter. The information pamphlets must also be provided by certified mail or in a manner verifiable by MDE.

Disclose to Prospective Purchasers. At the time of or prior to a contract for sale being executed for an Affected Property, the owner of the Affected Property must disclose to a prospective buyer any obligation to perform a full or modified risk reduction treatment at the Affected Property if (a) an event has occurred triggering the performance of the risk reduction, such as a change in tenancy, Notice of Defect, or Notice of Elevated Blood Lead Level, and (b) the owner will not perform the required treatment prior to the transfer.

It is important that property owners comply with these mandatory requirements for Affected Properties. The significance of owner compliance is often seen in the context of litigation. For instance, were an owner of an Affected Property to be sued by an aggrieved party claiming exposure to defective lead-based paint while the aggrieved party was a person at risk residing at the Affected Property, evidence that the owner was not in compliance with the aforementioned provisions is admissible at a trial to demonstrate the owner failed to exercise reasonable care with respect to lead hazards during the period of residency. The converse is also true: evidence that the property owner was in compliance with the aforementioned provisions is admissible at a trial to demonstrate the owner did exercise reasonable care with respect to lead hazards during the period of residency.  

Maryland law relating to lead paint provides a path for compliance, but that path must be followed carefully.

For questions, contact James R. Benjamin, Jr., (410) 576-4261.