Seller confused about lead-paint disclosure laws

Q. I'm advertising my home "for sale by owner" and am concerned about all the disclosure laws. I know about disclosing normal building defects, such as damage, wear and leaks, but a friend says I have to tell buyers about lead paint. Frankly, I have no idea whether the paint in my house has lead. How can I disclose something I know nothing about?

A. You are not the only seller to be confused about environmental disclosure laws. In recent years, fact and hearsay have become intermingled in this regard. So here are the basics regarding lead paint disclosure.

In 1996, federal regulations issued by the Environmental Protection Agency and the Department of Housing and Urban Development took effect, requiring disclosure by those who sell, rent or lease certain residential properties built prior to 1978.

These rules do not require sellers or landlords to perform tests, hire inspectors or otherwise pursue discovery of lead-containing paint. The primary requirement is to disclose whatever information you already possess. If you are unaware of the lead paint status in your home, that is all you need to tell a prospective buyer or renter. Simply disclose "I don't know." The only additional information you must provide is a copy of the federally-approved lead-based paint hazard pamphlet. This can be obtained from a local real estate office.

The one further requirement is that you allow buyers a 10-day contingency period, during which they may arrange for professional lead testing. Buyers may waive this right, or they can negotiate a different time period, but sellers must make the option available.

If lead-based paint is found in the building, removal is not a legal requirement, and parties to a transaction should not become unduly alarmed, because lead does not pose a health threat by its mere presence. The primary concern involves small children, who have been known to teethe on painted woodwork, such as windowsills. Lead paint can be harmful if ingested, particularly by young people. Lead paint can also have adverse effects on adults if dust is inhaled while sanding painted surfaces.

Regardless of the risk level associated with lead paint, the disclosure law should be taken seriously. Failure to comply may subject property owners to penalties including criminal prosecution, court-imposed punitive damages, and fines up to $10,000.

Exceptions to the lead paint disclosure law are extended to banks and other creditors who acquire properties through foreclosure, because the sellers in such cases are presumably unaware of specific property conditions, having not been in personal possession or occupancy. In such cases, properties are sold as-is. It could be fairly argued that buyers of foreclosed properties should at least be allowed the normal 10-day contingency period for obtaining a professional lead inspection.

Also excluded from the lead paint disclosure requirement are fraternity and sorority houses, dormitory buildings, single-room rentals, and homes designed for elderly or disabled people.

For further information regarding lead-based paint disclosure, contact the EPA or HUD, both of whom spin their webs in Washington, D.C.

• To write to Barry Stone, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

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