The Lion (EPA) Roars!
The back page of the March 2007 Alban
newsletter contained a brief reminder about
complying with both Maryland and Federal
lead-based paint laws affecting rental and sale
transactions in Maryland. Let me repeat
There is a catch-22 that many Realtors, residential investment property
owners, managers and leasing agents are not aware of. This twist results
from application of both the Maryland HB 760 and Federal Title X to a
rental unit that had been previously rented.
Maryland law requires that the current preoccupancy lead- aint
inspection report be delivered to the tenant prior to occupancy,
together with the EPA/HUD pamphlet and the Maryland lead disclosure
notice. However, Federal Title X compliance requires delivery of ALL
lead-related reports on the building and that dwelling unit.
Consequently, if the dwelling has turned over eight times since 1996
when the law became effective, there are nine reports that should be
HUD/EPA has recently issued a memorandum regarding this, allowing the
manager to deliver a summary of those reports, so long as the inspection
company prepares the summary. All reports must be easily available to
the tenant and, if requested, copies of the reports must be physically
given to the tenant.
Concurrently with the brief article in the Alban Home Inspection
Insights Newsletter being published, EPA issued a Notice of
Non-Compliance to one of our clients, a very respected and responsible
Real Estate firm with a property management division. As a result of a
tenant complaint, EPA sent lead investigators into their office to
review all leases, disclosure forms and related documents. The
investigators found six lease files with incomplete disclosure
information and proposed a maximum fine of $11,000 per violation.
Non-compliance was due to two record keeping deficiencies and I quote:
The lease agreement did not include, either as
an attachment or within the lease itself, a list
of any records or reports available to the lessor pertaining to
lead-based paint and/or lead-based paint hazards in the property or an
indication that no such reports or records exist.
The lease agreement did not include in the lease agreement the
signatures of the lessor, agent, and the lessee certifying to the
accuracy of their statements. All six tenant files contained full
documentation that Maryland’s Lead Based Paint Poison Prevention Law,
known as HB 760, was complied with. Pre-occupancy dust wipe inspections
had been properly conducted and documented; and, the tenant had received
the Maryland Tenant Notice form and the EPA/HUD pamphlet on lead- ased
paint. Compliance with the Maryland law did not provide a pass on
compliance with Title X, the federal law.
The good news in this case is that since the EPA Non-Compliance Notice
was this company’s first violation, the fee was waived with the
admonition that any future violation would result in sterner action.
Getting a nasty letter from someone whose title is Chief, Toxics
Programs and Enforcement Branch, U.S. EPA-Region III/Waste and Chemicals
Management Division is a discomforting experience. And such a letter can
result in significant expense, not only from fines, but in legal expense
to try to limit the damage. One case we are aware of started at a
$60,000 fine that was negotiated down to $10,000 of lead inspection work
and remediation of leaded areas. Another firm in the metropolitan area
spent more on legal fees than the proposed fine to avoid further
These are sobering stories. The message is that anyone, whether an
owner, manager, Realtor or leasing agent, involved with rental
properties built before 1978 need to understand the requirements of both
Maryland and Federal law to ensure they and their firm are in full
compliance with both laws. Realtors representing buyers or sellers of
properties built on or before 1978 must comply with the Federal Title X
requirements, including the requirement of full disclosure.
From the Desk of
Miracle of miracles, the State of
Maryland has issued me a Home Inspector License! The State Commission of
Real Estate Appraisers and Home Inspectors licensed us old folk first.
By being certified by ASHI and having performed over 100 inspections, I
qualified under the grandfathering clause for anyone submitting an
application prior to July 1, 2002.
Effective January 1, 2008 in Maryland, no
one except Maryland licensed home inspectors may legally perform a home
inspection for compensation that will be valid for the homebuyer. By
extension, sellers quite likely will take the position that if the
non-licensed inspector’s report is not valid for the homebuyer, it is
also not valid to establish any responsibility for the seller. That
puppy has consequences for real estate transactions.
Most Maryland Realtors know the history of
home inspector licensing. The law was passed in 2001 but not funded by
the General Assembly, so the Attorney General took the position that
with no money there would be no enforcement, which put licensing on
Nearly 600 applications have been submitted.
Of those 200 were rejected outright, 200 applicants received letters
requesting additional information and about 140 applicants were approved
for licensing. The Executive Director established this past April 1 as a
goal date to complete review of the applications claiming grandfather
Given that anyone with a clipboard and flashlight can now call
themselves a home inspector, the January 1, 2008 date is as important to
responsible, professional home inspectors as it is to Realtors and their
home buyer clients.
In the Legal Corner
All New-Construction Purchase
Agreements in Montgomery County
MD Must include the Right
to a Pre-Settlement Inspection by
A Home Inspector.
Section 40-15 of the Montgomery County Code gives any buyer of a new
home the right to inspect prior to settlement, and the buyer may be
accompanied by a buyer’s agent (read: home inspector) no less than 24
hours nor more than 72 hours before settlement. Although this Code
section gives the seller a right also to be present, the seller must
allow a reasonable time to conduct the inspection. These provisions must
be in the written purchase contract.
Montgomery County Consumer Affairs Office enforces this provision. Eric
Friedman, who heads to enforcement division, is the consumer’s best
friend and the recalcitrant offender’s worst nightmare. Realtors
representing buyers of new homes should ensure that their buyers
exercise this right. The Consumer Affairs office wants to hear of any
instance of non-compliance.
Rodney Shull heads Alban’s new construction inspection division. With
his background of 16 years as a new construction superintendent, he
understands new construction from the inside. Call Alban for new
construction staged inspections.
proud to offer FREE Continuing Education Courses in Real Estate Offices!
Call Tina to schedule one of our educational seminars, for additional
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