It’s important that you get the lead out.
There are many work sites in New York City and its environs in which buildings constructed before World War II are being demolished or renovated. The dust from that work often showers onto adjacent occupied buildings. Because the properties being demolished or renovated were built at a time when lead and asbestos were regularly used in painting and fireproofing, those living nearby have to be concerned about dust containing lead and asbestos.
Lead dust is considered an active poisoning hazard. It is caused by deteriorating lead paint; by building repair activities when lead-based paint is scraped, sanded, or ground, that dislodge it; or by people tracking contaminated lead dust and soil from the outdoors to the indoors. Lead dust is heavy and settles onto horizontal surfaces after being disturbed. Contaminated lead dust is distributed by wind and air current, and settled lead dust can re-enter the air when the home is vacuumed or swept.
Children six years old and younger are most susceptible to health problems. Low levels of lead in the blood of children can result in behavioral and learning problems, lower IQ, hyperactivity, slowed growth, and anemia.
To reduce exposure to lead dust, it is especially important to maintain all painted surfaces in good condition, and to clean frequently in order to reduce the likelihood of chips and dust forming. Using a lead-safe-certified renovator to perform renovation, repair, and painting jobs will also reduce the likelihood of contamination.
Federal laws and regulations require a condominium or cooperative board to provide every apartment purchaser with lead paint disclosures before signing a contract. The New York City Childhood Lead Poisoning Prevention Act of 2003 requires annual investigation of lead paint levels. It also requires immediate remediation of issues in units where children under the age of six reside, as well as in the common areas of properties built before 1978. However, the law does not require a board to inspect owner-occupied units.
Without an express agreement stating otherwise, the responsibility is on the board for common area inspection and on individual owners for their units. However, since any owner who violates the laws is penalized, the board might also want to include an indemnity provision in its governing documents in order to protect itself against violations of which it is unaware.
Therefore, while New York law permits agreements that waive a board’s compliance responsibilities, it would be prudent for a board to include an indemnification clause or other language placing liability on shareholders and unit-owners who do not comply. Whenever we represent a board updating its proprietary lease or bylaws, we include a lead paint indemnification.
Stuart Saft is a partner at Holland & Knight.