The Massachusetts lead law, enacted in 1971, is one of the oldest in the country and contains some provisions not found in many other states. The law requires that any property built before 1978 and occupied by a child under age six be “deleaded.” The statute applies to both rental and owner-occupied dwellings and embodies the principle of primary prevention. This means that the requirement to delead is triggered by the occupancy of a child not by whether a child is experiencing an elevated blood lead level. Massachusetts also has laws making it illegal for property owners to discriminate against families with children when renting or selling.
The Massachusetts lead law, which has been amended multiple times since originally enacted, requires owners to hire a lead inspector to identify all surfaces with lead-based paint and develop a plan to address lead hazards. In some cases, the owner or agent can be trained to address certain conditions, while in others, a contractor with a Massachusetts deleaders’ license must be hired to conduct the work. Owners can opt to receive a Letter of Interim Control, which means that they will address “urgent lead hazards” immediately but defer action on intact surfaces. They must then fully cover or remove all lead hazards within two years of the issuance of the Letter of Interim Control. If an inspection does not identify lead hazards, or if owners fully address lead hazards, the inspector issues a Letter of Full Compliance. Although a Letter of Full Compliance does not expire, it does not certify a dwelling is lead-free, and therefore it is the owner’s responsibility to check the dwelling routinely for new hazards.
Strict Disclosure Requirements
Massachusetts law provides strict lead disclosure requirements for prospective renters and buyers of residential units. The law is in compliance with the federal lead disclosure law and includes the notification materials mandated by the Department of Housing and Urban Development and Environmental Protection Agency. In addition, landlords must provide tenants with a Massachusetts Tenant Lead Law Notification and Certification Form, a copy of the most recent lead inspection report if the property has been inspected for lead, and a copy of any Letter of Compliance or Letter of Interim Control.ta
Before signing a purchase and sale agreement, a lease with an option to purchase, or a memorandum of agreement used in foreclosure sales, residential property sellers and real estate agents – must disclose any lead-related information on the property to the prospective purchaser. This includes a copy of any lead inspection report, risk assessment report, Letter of Compliance, or Letter of Interim Control. Real estate agents must also tell prospective purchasers that, under the Lead Law, a new owner of a home built before 1978 (in which a child under six will reside) must have it deleaded or under interim control within 90 days of taking title.
Although the Massachusetts law includes many of the provisions found in federal law, Massachusetts gives the state enforcement powers. If the landlord fails to comply with the disclosure requirements, he or she can be held liable for all damages caused by the failure to provide this information, fined up to $1,000, and may be liable for engaging in an unfair and deceptive act under the Massachusetts Consumer Protection Act. Sellers and real estate agents who do not meet these requirements can face a civil penalty of up to $1,000 under state law in addition to a civil penalty of up to $10,000 and possible criminal sanctions under federal law, as well as liability for resulting damages. If a real estate agent fails to tell a tenant or perspective buyer about known lead hazards at a property, he or she may be liable for engaging in an unfair or deceptive act in violation of the Massachusetts Consumer Protection Act.
Strict Legal Liability for Property Owners
If an owner of a pre-1978 home fails to delead the property, and a child younger than six living in the home is lead-poisoned, the property owner is strictly liable for all damages. Strict liability means that owners are liable even if they did not know lead paint or a child under six was in the home. The strict liability provision, which dates back to the original law passed in 1971, helped educate property owners about their responsibility in correcting lead hazards.
In 1993, the law was amended so that an owner is not strictly liable for lead poisoning if a Letter of Compliance or Letter of Interim Control is in effect. The 1993 amendments also require insurance carriers who provide liability coverage in the state to offer owners coverage for negligence claims (short of gross or willful negligence) that might be brought against them by their tenants.
Financing Prevention Efforts
Beginning in 1987, Massachusetts has provided a “deleading” income tax credit to help homeowners pay for the cost of abating lead hazards, including window replacement. Since 1993, an owner of a residential property can claim a tax credit up to $1,500 for addressing lead hazards, if they have a Letter of Compliance, or up to $500 if they have a Letter of Interim Control. The tax credit cannot exceed the actual amount spent by the owner. If the tax filer owes less in income taxes than the amount of the credit, the unused portion of the credit can be carried over and used within the next seven years.
The state also administers loan programs for owner occupants and rental property owners to support compliance with the lead law. Some, such as Get the Lead Out and the Home Improvement Loan, are funded by the state, while others use federal grants and loans to support lead hazard control.
In order to provide additional funds to pay for training, licensing of inspectors, and public education purposes, Massachusetts imposes surcharges of $25 to $100 on the annual fees of a variety of professional licenses, including real estate brokers, property and casualty insurance agents, mortgage brokers and lenders, small loan agencies, and individuals licensed to perform lead inspections. The collected revenue, roughly $2.5 million annually, is deposited into a retained revenue account, known as the Lead Paint Education and Training Trust Account, for use by the Department of Public Health.
Massachusetts’s comprehensive approach over a number of years has successfully reduced the number of young children with elevated lead blood levels. Of the more than 175,000 children tested in 2016, just 686 under age six had blood levels of 10 µg/dL or greater, compared with 3,095 of about 194,000 children tested in 2001, the earliest date for which data is available online.
In August, 2017, the Health Impact Project, a collaboration between the Robert Wood Johnson Foundation (RWJF) and Pew Charitable Trusts released: Ten Policies to Prevent and Respond to Childhood Lead Exposure. The Trust for America’s Health (TFAH), National Center for Healthy Housing (NCHH), Urban Institute, Altarum Institute, Child Trends and many researchers and partners contributed to the report. TFAH and NCHH worked with Pew, RWJF and local advocates and officials to put together the above case study about lead poisoning and prevention initiatives.
The case study does not attempt to capture everything a location is doing on lead, but aims to highlight some of the important work.