Alan Saly in Co-op/Condo Buyers
In February 2004, the New York City Council, by a vote of 44-5, overturned Mayor Michael Bloomberg's veto of legislation to New Yorkers from the perils of lead paint, commonly used by developers in decades past. Councilman Bill Perkins said at the time, "Today, we give the children in the row houses of our city the same health protection as those who live in the townhouses in Manhattan." What does this mean for shareholders in co-op apartments or for owners of condo units, vis-à-vis a board's responsibility?
The new statute, Local Law 1 of 2004, a.k.a. the Childhood Lead Poisoning Prevention Act of 2003, does not require the inspection of single-family homes or of owner-occupied apartments in co-ops or condos, even if small children reside there. Boards, however, must inspect non-owner-occupied apartments (such as rentals, sublets and the super's apartment) when a child 7 years old or younger is living there.
Boards must as well inspect the common areas. Eva Talel (at left), an attorney specializing in co-ops for 30 years at Stroock & Stroock & Lavan, notes that under the new law, common areas are redefined "as being 'areas in the building that are not within a dwelling unit and are regularly used for access and egress to a dwelling unit,'" she says. "We are not talking about exteriors, boiler rooms, laundry rooms, equipment rooms, or terraces. There are a lot of common areas that aren't covered." Those that are include lobbies, hallways and stairwells.
But while the board of directors has an obligation to inspect and "remediate" common areas, the city's enforcement arm, the New York City Department of Housing Preservation and Development (HPD) does not have the authority to inspect and issue a violation for lead paint found in a common area. HPD's authority is limited to inspecting a dwelling unit in which a young child lives.
No Child Left with Lead
But if a building does not inspect and remediate the common areas — even if only one child 7 or younger lives in the co-op or condo building — the board can be exposed to a personal-injury lawsuit if a child shows symptoms of lead poisoning. The new law requires that a four-step process — similar to that used for window guards — be put in place: notification, inspection, remediation and record-keeping.
In the first step, the board must send a notice to non-owner-occupied units, asking them to certify whether there are children 7 years old or younger living in the apartment. A "yes" answer means the board or association must conduct a lead paint inspection and then "remediate" (that is, remove the lead paint) by hiring workers trained in safe lead-removal practices. Areas over 100 square feet in size require EPA-trained workers to do the job.
"We're finding that 80 to 85 percent of apartments do not have lead paint," Talel notes. "And it's extremely uncommon on the flat part of a wall. It's [almost always] on risers, windowsills, doors and moldings." Talel advises boards to include a lead-paint rider in sublet agreements. The rider, she says, "confirms that the sublessor will be responsible for any costs associated with compliance [with the lead law's provisions] on any contractor's part."
That means that, for example, should any inspection and remediation be necessary, the costs would be the sublessor's responsibility rather than the co-op's or condo's. Co-op shareholders and condo unit-owners subletting their apartments can heed this advice as well.
Notably, the law allows a board or association to specifically shift responsibility for compliance with the lead paint law, by agreement, to the unit-owner. There's little doubt that such provisions will soon become part of a new model for proprietary leases and will form suggested language for amendments to current ones.
Adapted from Habitat December 2004. For the complete article and more, join our Archive >>
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