Title: Overview of Legal Trends for Lead and Mold Claims for Landlords May 2, 2004 Massachusetts Rental Housing Association
1Overview of Legal Trends for Lead and Mold Claims
for Landlords May 2, 2004Massachusetts Rental
Housing Association
- Cynthia J. Stephens
- Governo Law Firm LLC
- 260 Franklin St.
- Boston, MA
- 617.737.9045
2Lead Presentation Outline
- Lead Poisoning Definition and Treatment
- The Massachusetts Lead Law
- Lead Poisoning Myths
- New Developments
3Definition and Treatment of Lead Poisoning
- Lead poisoning can cause comas, convulsions and
even death in children at 80 µg/dl and higher. - The lower the lead level, the more difficult it
is to observe an effect. - Lead is measured in the blood as micrograms per
deciliter or µg/dl. - 1 Microgram 1/1,000,000 of a gram
- 1 Deciliter 1/10 of a liter or about 3 oz.
4Definition and Treatment of Lead Poisoning
- The CDC considers 10 µg/dl a level of concern.
- MA Lead Law defines poisoning as 25 µg/dl and
above. - Treatment
- Chelation Chemicals that bind with lead and are
then excreted out in urine.
5Massachusetts Lead Law
- The MA Lead Law is unique.
- The landlord is strictly liable, without
negligence or fault for a childs lead poisoning. - The Statute of Limitation for Lead Poisoning
Claims is tolled until the child is eighteen.
6Lead Poisoning Myths
- A Landlord is Liable only if he knew there were
children under the age of six living in his
property.
FALSE
The Lead Law imposes strict liability on the
landlord, which means that the landlord does not
need to be negligent, at fault, or even know
there was a child living in the property to be
sued.
7Lead Poisoning Myths
- A landlord need not worry about the Lead Law if
there are only elderly, unmarried or single
people living in his/her property.
FALSE
The Lead Law protects any child under the age of
six who resides in the property. This can
include, for example, a grandmother whose
grandchild is living with her, or even minor
relatives who might be staying with a tenant.
8Lead Poisoning Myths
- A landlord can avoid liability if he/she hires a
property manager.
FALSE
The Lead Law imposes liability on all owners,
which includes, among others, those with legal
title, and property managers. Neither the
landlord nor the property manager can avoid
liability by pointing to each other as the
responsible party.
9Lead Poisoning Myths
- A landlord can avoid deleading the property by
moving the lead poisoned child to another
apartment.
FALSE
Once a Notice to Correct the Violations has been
issued for a property where a lead poisoned child
lives, the apartment must be deleaded.
10Lead Poisoning Myths
- A landlord can evict the parents of a lead
poisoned child.
MAYBE
A landlord who takes reprisals against a tenant
for reporting violations to the Board of Health
is liable for damages, including costs and
attorneys fees. A notice of termination of
tenancy, except for non-payment of rent, within 6
months after tenant has reported violations
creates a presumption that the termination notice
is a reprisal against the tenant.
11Lead Poisoning Myths
- A landlord should hire a private inspector to
conduct a 2nd lead inspection to dispute the
official CLPPP report.
FALSE
In most circumstances, a 2nd inspection report
will only verify the findings of the 1st report,
and may, in fact, turn out to hurt rather than
help the situation.
12Lead Poisoning Myths
- A landlord can do some of the deleading himself.
MAYBE
It depends upon when the claim arose. The
earliest versions of the statue allowed the owner
to delead. The law was then amended so that only
licensed deleaders can abate. Now, landlords can
perform certain work under very narrow
circumstances.
13Lead Poisoning Myths
- Tenants can continue to live in the property
during the deleading.
FALSE
The Lead Law specifically requires that no one be
present in the apartment during abatement, unless
advance permission from the director was obtained.
14Lead Poisoning Myths
- The landlord must pay for the tenants
alternative housing during deleading.
TRUE
The Lead Law requires the landlord to pay for the
reasonable moving expenses of the tenant, and any
fees for the substitute dwelling that exceed the
rent.
15Lead Poisoning Myths
- A landlord can relax once he deleads and is
issued a letter of compliance.
FALSE
If the property falls out of compliance, the
landlord has 14 days from the day he receives
notice to bring the property back into compliance.
16New Developments
- Financial Assistance for Deleading
- Online registry of homes that have been inspected
for lead - http//www.leadsafehomes.info/MA_Registry/mainpage
.jsp - Lead in water
- Boston Globe April 29, 2004 Lead levels in
water high in 10 locales
17Mold Presentation Outline
- Mold Explosion
- Potential Parties
- Theories of Liability
- Claims Against Landlords
- Who to Hire for Clean Up
- Insurance Coverage
- Protecting Yourself
18Mold Explosion
- Ballard v. Farmers Insurance Group (Texas)
- 32.2 million
- Landmark case - first time jury
- awarded homeowner damages in mold claim
against an insurance company - Anderson v. Allstate (California)
- 18.9 million
- Award to a homeowner against an insurer that
declined coverage for mold damage
19Potential Parties
- Landlords
- Owners
- Design Professional
- Contractors
- Construction Manager
- Subcontractors
- Realtors
- Building Management
- Suppliers
- Manufacturers
- Insurance Companies
- Condo/Associations
20Theories of Liability
- Negligence
- Strict Liability
- Contract
- Breach of Warranties
- Fraud
- Misrepresentation
- Failure to Disclose
- Constructive Eviction
- Bad Faith/Coverage
- Workers Compensation
- Nuisance, Trespass
- ADA
- Spoliation
21Claims Against Landlords
- Quiet Enjoyment
- Landlord must be negligent
- Landlord can be liable for actual damages or 3
months rent - Warranty of Habitability
- Landlord must provide habitable premises
- Similar to quiet enjoyment
22Claims Against Landlords
- Reprisal Statues
- Except for non-payment of rent, can not evict
tenants who report mold - Chapter 93A
- Consumer Protection
23Mold Cleanup Who to hire?
- Mold remediators must negotiate a complex web of
guidelines and standards.
- CDC Questions Answers on Stachybotrys
Chartarum and Other Molds - EPA Brief Guide to Mold Moisture and Your Home
- NYC Dept of Health Guidelines on Assessment and
Remediation of Fungi in Indoor Environment
24Insurance Coverage
Typical Policy Language
We will pay for direct physical loss or damage
to Covered Property at the premises described in
the Declarations caused by, or resulting from,
any Covered Loss.
25How Lead and Mold Claims can be Denied by Insurers
- Late notice
- Failure to mitigate loss
- Failure to cooperate
- Exclusion under the policy
26How to Protect Yourself
Against Lead Claims Specifically
- Delead. Before buying or renting ensure that the
property has been deleaded and issued a letter
of compliance.
- Give your tenant the LEAD LAW NOTIFICATION FORM
before you rent to him.
- Do not avoid renting to families with children.
This violates another law.
Against Mold Claims Specifically
- Follow Industry Standards Ensure that your
contractor is familiar with all applicable
standards.
27How to Protect Yourself
- Information know the law
- Keep good records. Minimize liability by keeping
careful records of maintenance and repair.
- Initiate Governmental Inspections
- (e.g. Board of Health)
28How to Protect Yourself
- Inspect the property personally each year, and
obtain a new occupancy permit for each tenant.
- Respond to Complaints QUICKLY
- Call your insurance agent. You may have coverage
for early claims. Lead Paint or Mold
exclusion clause may not be sufficient to
disclaim coverage.
29Complete Self Protection
- Asset Protection
- Incorporate
- Homestead
- Insurance coverage
- Watch for lead and mold exclusions
- Know the scope of the coverage
30THANK YOU !!!