Condo Media - March 2017 - 28

Chipping Away at Health
But an older condominium building,
constructed before lead paint was
banned in 1978, is as likely to contain
the substance as older rental buildings.
And community associations may well
have an obligation to do something
about it. In Massachusetts, the issue
would typically arise in two circumstances: When a buyer or existing
owner who has a young child orders an
inspection of a unit; or when an investor-owner rents a unit to someone who
has a child younger than 6, in which
case the owner/landlord must obtain
a certiﬁcate of lead paint compliance-
verifying either that an inspection has
not found any lead paint, or that it has
been treated.
The primary concern is the lead dust
that could be produced by chipping or
peeling paint that can be touched and
ingested by young children, who regularly put their hands in their mouths,
explains John Risko, owner of JHR Environmental Testing, whose company
provides lead paint inspections. "We
focus on any area that might create lead
exposure for a child," he says. And that
includes common areas (hallways, elevators, laundry rooms, exercise rooms)
as well as the unit in which the child
lives. The inspection also includes the
exterior of the building and all buildings
in the condominium community, even

if the unit for which the inspection was
requested is the only one occupied by a
young child.
"AFFIRMATIVE OBLIGATION"
FOR ASSOCIATIONS
The owner is responsible for dealing with
lead if it is found in a unit, but if lead paint
is detected there, the association must
address lead paint in common areas. An
inspector won't issue a certiﬁcate of compliance for a unit, Risko says, unless the
common areas are also compliant.
If a child under the age of 6 is living
in the community, the association has
an "aﬃrmative obligation" to ensure
compliance with the lead paint law,
Mark Einhorn, a partner in Marcus,
Errico, Emmer & Brooks, emphasizes.
The board can't waive that responsibility, he says, nor can it claim "not knowing" about the lead paint as a defense.
"Whether the board knows or not, it has
a duty to remediate the common areas."
If it fails to do so, and a child is poisoned
by lead paint, the association could be
liable for damages, he notes. The association might also be sued, Barrett adds,
if it fails to obtain a lead compliance
certiﬁcate for the common areas, and an
investor-owner loses a tenant as a result.
Condominiums in states with less
stringent lead paint laws aren't subject
to the same requirement. "Maine has
no provisions about lead paint speciﬁc
to condominiums," Joseph Carleton,
an attorney who represents condominiums there, reports. Dwellings and
rental units aren't required to have a
certiﬁcate of lead compliance prior to
occupancy by adults or children, he
adds, but state inspectors can order the
remediation of lead-based substances
"if found to be dangerous."
New Hampshire, likewise, imposes no lead abatement obligations
on condo associations, according to
Gary Daddario, a partner in Winer &

Bennett, LLC. In Rhode Island, on the
other hand, Frank Lombardi, a partner
in Goodman, Shapiro, & Lombardi,
LLC, advises his condominium association clients to mitigate lead in common
areas if an inspection detects lead in
a unit occupied by a young child. He
bases that advice partly on the state
Condominium Act, which requires
condominiums to comply with state
and local laws, and partly on the lead
paint statute itself. The lead paint law,
Lombardi notes, applies to any property
occupied by a child under the age of 6,
and requires owners to mitigate lead
in all areas of a building "frequently
used" by young children. "Because the
owner of a unit is at least part owner of
the [common areas]," Lombardi says,
"a lead inspector could easily order the
hallways [and other common areas]
mitigated before issuing a clean bill of
health for the unit."
In Massachusetts, boards "grumble
and gripe" about their obligation, Risko
says, because remediating lead in common areas "is no small thing." Unless
the paint is chipping, or on "mouthable"
surfaces (ﬁve feet or less from the
ﬂoor), it can usually be covered rather
than removed, but mouthable surfaces
include outside corners or walls, doors,
door jambs, door casings, stairs, and
stair rails-and that's not a complete
list. Paint on non-mouthable surfaces,
such as soﬃts, doors, door frames, trim,
and windows has to be addressed as
well, and that can be a big job in larger
communities.
The exterior may be "an even bigger
deal," Risko notes. "If you have 500
windows [from which chipped paint can
fall, inside or outside], all will have to be
sprayed or repainted in order to bring
one unit into compliance."
Rental property owners will usually
abate lead paint in an older building as
soon as they acquire it, but most asso-

"A certificate of compliance just means the paint has been controlled.
It doesn't mean you are lead-free." -David Barrett, President, RMS Services
28

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Condo Media - March 2017

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