Does Your Building Have to Test for Lead Paint When Renovating Common Areas?
July 5, 2012 — Just like testing for and removing asbestos, co-op boards and condo associations have to test for and remove toxic, brain-damaging lead paint. But to hear engineers, contractors, environmental consultants and others tell it, not every co-op or condo board seems to be aware of or perhaps even care about the myriad city and federal rules for lead-paint inspection and removal — or of the five-figure fines they risk.
Not every building has to do so — only those built before 1978, a year after the U.S. Consumer Product Safety Commission banned lead paint. "But most of the boards and industry either don't know about the law or chose to avoid it," observes Gene Ferrara, president of the engineering firm JMA Consultants, a New Jersey company that has worked on numerous New York City co-ops and condos.
Stop! In the Name of Lead! Before You Break That Wall!
That may be why a greater percentage of co-ops and condos are found in violation of the city's lead-paint rules than any other type of residential dwellings. The New York City Department of Health and Mental Hygiene says that, in 2011, it issued 552 residential lead-abatement orders overall; only 25 involved co-ops or condos.
While that's just 4.5 percent of the total number, co-ops and condos make up only about 2 percent of city residential buildings, meaning those 25 cases are more than twice as many as you'd statistically expect.
The consequences of not inspecting for and properly abating lead paint can be dire. Failure to comply with a "Commissioner's Order to Remediate" can lead to fines of up to $2,000 per violation — and more expensively, the federal Environmental Protection Agency (EPA) can fine you up to $37,500. Cautions Joel Ergas, a principal of Forbes-Ergas Design Associates: "Anybody can pick up a phone or press a [computer] mouse and report to the city that, ‘There's a job going on in my building and they don't seem to be taking precautions.'"
We won't even get into the judicial and ethical costs of improperly handled lead paint that damages a kid neurologically through lead poisoning.
So, you want to avoid all that. Obviously. That means you need to know what you're responsible for. But it's extremely difficult for a board and even many professionals to know. "There's a lot of misinformation about it," says Ergas. John Marino, owner of the contractor JMPB Enterprises, agrees: "It's a very convoluted law, and it can be confusing."
The Lead-Law Labyrinth
No kidding. Here's a sample: New York City's Lead Paint Hazard Reduction Law, a.k.a. Local Law 1 of 2004, which took effect in August 2004. It applies to property owners of all pre-1960 buildings with three or more residential units, as well as property owners of post-1960 to pre-1978 buildings with three or more residential units where the owner knows there is lead-based paint. Yes, that's how nuanced it gets.
And it gets even more so: Local Law 1 does not apply to any owner-occupied co-op or condo apartments — unless the owner is renting it to someone else. In that case, condo and co-op boards must inspect non-owner-occupied apartments (which includes the super's apartment, by the way), but only if a child 7 years old or younger is living there. And it applies only if a professional contractor or handyman is doing the work. It doesn't apply to co-op shareholders or condo unit-owners doing their own renovation, repair, or painting in their own apartment. Still with us so far?
As for common areas, co-op/condo boards have to inspect any area "regularly used for access and egress to a dwelling unit," such as lobbies, hallways, and stairwells — though not other common areas, such as boiler or laundry rooms. And on top of this, federal Environmental Protection Agency (EPA) rules apply.
Leaving aside details best left to lawyers, what exactly does lead testing entail? That part, luckily, isn't complicated — but that's another article. In the meantime, we recommend you look at:
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