How to deal with lead and asbestos in your units

One of my tenants had her apartment checked for asbestos and lead because she has young children. The inspector found asbestos and lead. Now my tenant is demanding that I fix these hazardous conditions. Must I comply with my tenant’s demands?

Like many of the majority of buildings in San Francisco, yours contains both lead-based paint and asbestos. Absent substantial remodeling or remediation, almost all buildings built before 1978 are likely to have lead-based paint on some surface of the interior or exterior of the home, and most homes built prior to 1950 commonly contain asbestos. According to California’s Civil Code Section §1941, “the lessor of a building intended for the occupation of human beings must put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable.” Specific characteristics that render a unit untenantable are listed in Civil Code Section §1941.1. However, lead paint or asbestos are not specifically mentioned in this section. As a general rule, if the lead paint or asbestos make the unit unsafe, removal or repairs should be conducted. A good guideline to follow is Health and Safety Code §17920.3, which states that “a unit is deemed to be substandard under the State Housing Law and in breach of the warranty of habitability whenever a proscribed condition exists that endangers the life, health, property, safety or welfare of an occupant or any person.”

Further, as with all potential dangers that may exist at any of your rental units, if you have knowledge of a dangerous condition and fail to do anything to remove that condition, you could be held liable for any injuries resulting from that dangerous condition (Civil Code Section §1714). For example, if you know that the lead paint is cracking and flaking, but you do not make repairs, you could be liable for the child’s injuries caused by the ingestion of paint chips.

In short, you are not required to remove all lead paint and asbestos that exists in the unit. Such a requirement would prove prohibitively expensive in many cases. However, to ensure your tenants’ health and protect yourself from potential liability, you should send a professional to inspect the unit for existing dangers presented by the lead paint and asbestos. A professional is not your regular handyman, but instead refers to an inspector certified by the health department, the EPA or other equally reputable hazard-control organization. This expert will be the person who determines whether the lead paint and/or asbestos “endangers the life, health, property, safety or welfare of an occupant or any person,” under the Health and Safety Code, and therefore whether or not it must be removed.

If after receiving the test results, there is a recommendation that you conduct remediation, the EPA regulations require that current tenants receive the EPA pamphlet entitled, “Protect Your Family From Lead In Your Home,” or a state-approved version of this pamphlet, at least 60 days before the renovation begins. If common areas will be affected, you must distribute a notice to every rental unit in the building describing the nature and location of the renovation work, and the dates work is expected to begin and end. Further, if the lead and/or asbestos constitute a health hazard, and deferred maintenance by the landlord caused or contributed to the existence of this hazard, the costs for remediation cannot be passed through to the tenant. The landlord also must provide relocation expenses to tenants displaced during the remediation, and must complete all repairs within 30 days. Of course, under the Rent Ordinance, the tenants must be allowed back into their units under the same lease terms as when they temporarily vacated.

For future reference, federal law requires that landlords disclose the presence of lead-based paint to tenants if they know it exists. The “Protect Your Family” pamphlet mentioned above must be given to all prospective tenants if the unit was built prior to 1978. Both the landlord and the tenant must sign an EPA-approved disclosure form to prove that the landlord told the tenants about any known lead-based paint or hazards on the premises. Property owners must keep this disclosure form as part of their records for three years from the date that the tenancy begins. If a landlord knowingly fails to make the required disclosures, he or she could be fined, jailed and/or held liable for trebled damages claimed by a tenant in a civil suit.

There are a few minor exceptions to this requirement: (1) housing built after January 1, 1978, (2) lofts, efficiencies and studio apartments, (3) short-term vacation rentals of 100 days or less, (4) a single room rented in a residential dwelling, and (5) housing designed for persons with disabilities or for seniors, unless children less than six-years old live there or are expected to live there.

By Sally Morin and James M. Millar of Millar & Associates (415)981-8100.