Keep Proper Records to Avoid Lead-Based Paint Fines, Lawsuits

Lead-based paint hazards have been in the news recently. A New York state bill dealing with lead-based paint is awaiting Governor Paterson's signature at the time of this writing. Its purpose is to identify 30 communities with the highest amount of lead-based hazards and provide those owners with tax breaks to offset the cost of covering or removing the hazards.

Also, on Sept. 4, 2008, the federal Environmental Protection Agency (EPA) announced that it had settled a complaint against an owner for failing to warn tenants of 11 apartment buildings that their homes may contain lead-based paint hazards. As a result of the settlement, the owner had to pay a stiff penalty and undertake a window replacement project.

As a New York owner, you must comply with city and federal lead-based paint laws when you do lead-based paint work in your building. One important requirement is to keep certain records of the work or the steps you have taken to comply with the laws. If you don't keep the right records, you could get into trouble, and you may be subject to huge fines for not complying with the various laws. Another benefit to keeping the appropriate records is to defend yourself if a tenant sues you for damages related to lead-based paint poisoning. If you do not have the records you need to prove that you acted properly, you could be liable for huge monetary damages.

To help you, we have summarized the records you should keep regarding lead-based paint in your building. What you must keep depends on whether your building is covered by the city's lead-based paint law and/or two federal lead-based paint laws.

If Building Is Covered by City's Law

Your building is covered by the city's lead-based paint law if it was built before 1960. If your building is covered, you must keep the following records:

Lead-based paint notices signed by tenants. You must send annual Department of Housing Preservation and Development (HPD) lead-based paint notices to tenants in your building. You must also provide a different HPD lead-based paint notice when you sign leases with new tenants or renew leases with current tenants. Tenants are supposed to sign these notices and give them back to you. Keep a copy of each signed notice in the tenant's file. If tenants have not returned the notice to you, keep proof that you sent the required notice to your tenants.

How Long to Keep. The city's lead paint law requires you to keep these records for 10 years from the date you get them back from the tenants.

Documentation of efforts to get tenants to return HPD notice. Some tenants may not return their signed lead-based paint notices to you. If so, you are required to make certain efforts to get the tenants to return the notices, and you must notify the Department of Health and Mental Hygiene (DOHMH) of when and how you tried to contact the tenant. Although the law doesn't require you to do so, it's a good idea to keep records of your efforts (for example, letters you've sent to the tenant) as well as your letter to DOHMH.

How Long to Keep. You are not required to keep these records of your efforts for any specific length of time. But it is a good idea to keep them as long as possible so that you will have proof that you complied with the lead-based paint law if a tenant sues you for lead-based paint poisoning.

Documentation of annual lead-based paint inspections. You must conduct annual visual inspections of apartments where a child under age 7 lives and of the building's common areas. Keep copies of any documentation you have of these inspections.

How Long to Keep. The city's lead-based paint law requires you to keep these records for 10 years. But you should keep them indefinitely. That's because you may need to use them to comply with the federal lead-based paint disclosure law that requires you to give new tenants a disclosure form listing all lead-based paint hazards in the building and the steps you took to correct them.

In this form, you must disclose prior lead-based paint violations and the steps you took to correct them, and any lead hazards you found during the annual inspection, as well as the steps you took to correct them. The federal law sets no time limit for how far back you must go when disclosing lead-based paint hazards.

Therefore, if you keep records for more than 10 years, you'll be able to comply with the law and tell occupants about lead-based paint hazards that you found during inspections that may date back more than 10 years.

Records of work done to correct violations. You must keep records of the following information when you do work to correct lead-based paint violations:

• The name, address, and telephone number of the person or entity that did the work, as well as the start and end dates of the work;
• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work;
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State; and
• Checklists that your contractor is required to complete if you allowed occupants temporary access to the work area. Your contractor must complete these checklists at the end of each workday.

How Long to Keep. The city's lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. However, for the same reasons discussed above, you should keep these records indefinitely.

Records of work done to correct hazards in vacant apartments. You must keep records of the following information when you do work to correct lead-based paint hazards in a vacant apartment:

• The name, address, and telephone number of the person or entity that did the work, as well as the start and end dates of the work;
• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work; and
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State.

How Long to Keep. The city's lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. But, for the same reasons discussed above, you should keep these records indefinitely.

Records of work that disturbs two or more square feet of lead-based paint. You must keep records of the following information when you do work to correct two or more square feet of lead-based paint:

• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work;
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State; and
• Checklists that your contractor completed if you allowed occupants temporary access to the work area. Your contractor must complete these checklists at the end of each workday.

How Long to Keep. The city's lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. However, for the same reasons discussed above, you should keep these records indefinitely.

If Building Is Covered by Federal Laws

If your building was built before 1978, you must comply with federal lead-based paint laws. To do so, you must keep the following records:

Federal lead-based paint disclosure forms. The federal Residential Lead-Based Paint Hazard Reduction Act of 1992 and EPA regulations require you to give any apartment applicant who plans to sign a lease certain documents that disclose the dangers of lead paint in general, as well as a lead paint disclosure form that describes specific lead paint hazards in the apartment and/or building. You should keep copies of the disclosure forms you give to new tenants when they sign their leases.

How Long to Keep. You are required to keep copies of the disclosure forms for three years. But it's a good idea to keep them as long as possible. That's because the EPA may check your building to see whether you've complied with the law. If you have copies of the disclosure forms, you can use them to prove your good-faith effort to comply with the law. This could help you avoid huge fines. If the EPA finds that you didn't comply with the law, it can hit you with both civil and criminal fines of up to $11,000 each for each violation.

Proof of compliance with federal renovation rules. You must (with certain exceptions) comply with federal lead-based paint notice rules for renovations. Those rules require you to give tenants certain information about lead paint when you or your employees renovate apartments or common areas and that renovation disturbs painted surfaces.

In three situations, you must keep certain records. Here are the three situations and the records you're required to keep if the situation applies to you.

> Situation #1: You're claiming that your building or a particular apartment is lead-free. If your building is exempt from the requirements because you've had it inspected by a certified lead paint inspector who has verified in writing that there's no lead paint, you must keep records of the inspections and written verifications that your building or the apartment has no lead paint.

> Situation #2: You're doing apartment renovations that disturb painted surfaces. The rules require you to give a pamphlet on lead paint exposure to one adult member of each apartment you're renovating. If you hand-deliver the pamphlet and get an acknowledgment of receipt from the tenant, keep the acknowledgment. If the tenant wasn't home or refused to sign the acknowledgment, keep the certification of attempted delivery of the pamphlet. If you mailed the pamphlet, keep the certificate of mailing.

> Situation #3: You're doing common area renovations that disturb painted surfaces. The federal rules require you to send tenants a letter before beginning common area renovations that disturb painted surfaces. Keep a copy of the letter sent to tenants notifying them of renovations in common areas and the statement of how and when you delivered it.

How Long to Keep. The law requires you to keep the above records for three years.

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