governo law firm llc overview of legal trends for lead and mold claims for landlords may 2, 2004...

Governo Law Firm LLC

Overview of Legal Trends for Lead and Mold Claims for Landlords

May 2, 2004Massachusetts Rental Housing Association

Cynthia J. StephensGoverno Law Firm LLC

260 Franklin St.

Boston, MA

617.737.9045


Lead Presentation Outline

1) Lead Poisoning: Definition and Treatment

2) The Massachusetts Lead Law

3) Lead Poisoning Myths

4) New Developments


Definition and Treatment of Lead Poisoning

• Lead poisoning can cause comas, convulsions and even death in children at 80 µg/dl and higher.

• The lower the lead level, the more difficult it is to observe an effect.

• Lead is measured in the blood as micrograms per deciliter or µg/dl.

» 1 Microgram = 1/1,000,000 of a gram

» 1 Deciliter = 1/10 of a liter or about 3 oz.


Definition and Treatment of Lead Poisoning

• The CDC considers 10 µg/dl a “level of concern.”

• MA Lead Law defines poisoning as 25 µg/dl and above.

• Treatment:Chelation: Chemicals that bind with lead and are

then excreted out in urine.

http://www.epa.gov/


Massachusetts Lead Law

• The MA Lead Law is unique.

• The landlord is strictly liable, without negligence or fault for a child’s lead poisoning.

• The Statute of Limitation for Lead Poisoning Claims is tolled until the child is eighteen.


Lead Poisoning Myths:

A Landlord is Liable only if he knew there were children under the age of six living in his property.

FALSE

The Lead Law imposes strict liability on the landlord, which means that the landlord does not need to be negligent, at

fault, or even know there was a child living in the property to be sued.



A landlord need not worry about the Lead Law if there are only elderly, unmarried or single people living in his/her property.

FALSE

The Lead Law protects any child under the age of six who resides in the property. This can include, for example, a grandmother whose grandchild is living with her, or even

minor relatives who might be staying with a tenant.



A landlord can avoid liability if he/she hires a property manager.

FALSE

The Lead Law imposes liability on all “owners,” which includes, among others, those with legal title, and property managers. Neither the landlord nor the property manager

can avoid liability by pointing to each other as the responsible party.



A landlord can avoid deleading the property by moving the lead poisoned child to another apartment.

FALSE

Once a Notice to Correct the Violations has been issued for a property where a lead poisoned child lives, the apartment

must be deleaded.



A landlord can evict the parents of a lead poisoned child.

MAYBE

A landlord who takes reprisals against a tenant for reporting violations to the Board of Health is liable for damages,

including costs and attorneys’ fees.

A notice of termination of tenancy, except for non-payment of rent, within 6 months after tenant has reported violations

creates a presumption that the termination notice is a reprisal against the tenant.



A landlord should hire a private inspector to conduct a 2nd lead inspection to dispute the official CLPPP report.

FALSE

In most circumstances, a 2nd inspection report will only verify the findings of the 1st report, and may, in fact, turn out to hurt

rather than help the situation.



A landlord can do some of the deleading himself.

MAYBE

It depends upon when the claim arose. The earliest versions of the statue allowed the owner to delead. The law was then

amended so that only licensed deleaders can abate.

Now, landlords can perform certain work under very narrow circumstances.



Tenants can continue to live in the property during the deleading.

FALSE

The Lead Law specifically requires that no one be present in the apartment during abatement, unless advance permission

from the director was obtained.



The landlord must pay for the tenant’s alternative housing during deleading.

TRUE

The Lead Law requires the landlord to pay for the reasonable moving expenses of the tenant, and any fees for

the substitute dwelling that exceed the rent.



A landlord can relax once he deleads and is issued a letter of compliance.

FALSE

If the property falls out of compliance, the landlord has 14 days from the day he receives notice to bring the property

back into compliance.


New Developments:

• Financial Assistance for Deleading

• Online registry of homes that have been inspected for lead:

http://www.leadsafehomes.info/MA_Registry/mainpage.jsp

• Lead in waterBoston Globe April 29, 2004: “Lead levels in water high in 10 locales”


Mold Presentation Outline

1) Mold Explosion

2) Potential Parties

3) Theories of Liability

4) Claims Against Landlords

5) Who to Hire for Clean Up

5) Insurance Coverage

5) Protecting Yourself


Mold ExplosionBallard v. Farmer’s Insurance Group (Texas)• $32.2 million• Landmark case - first time jury

awarded homeowner damages in mold claim against an insurance company

Anderson v. Allstate (California)• $18.9 million• Award to a homeowner against an insurer that

declined coverage for mold damage


Potential Parties

• Landlords• Owners• Design Professional• Contractors• Construction Manager• Subcontractors

• Realtors• Building Management• Suppliers• Manufacturers• Insurance Companies• Condo/Associations


Theories of Liability

• Negligence• Strict Liability• Contract• Breach of Warranties• Fraud• Misrepresentation• Failure to Disclose

• Constructive Eviction• Bad Faith/Coverage• Worker’s Compensation• Nuisance, Trespass• ADA• Spoliation


Claims Against Landlords

• Quiet Enjoyment:• Landlord must be negligent

• Landlord can be liable for actual damages or 3 month’s rent

• Warranty of Habitability:• Landlord must provide habitable premises

• Similar to quiet enjoyment


Claims Against Landlords

• Reprisal Statues:• Except for non-payment of rent, can not evict tenants who

report mold

• Chapter 93A:• Consumer Protection


Mold Cleanup: Who to hire?

• CDC – Questions & Answers on Stachybotrys Chartarum and Other Molds

• EPA – Brief Guide to Mold Moisture and Your Home

• NYC Dept of Health – Guidelines on Assessment and Remediation of Fungi in Indoor Environment

• Mold remediators must negotiate a complex web of guidelines and standards.

http://www.epa.gov/

http://www.ci.nyc.ny.us/html/doh/home.html


Insurance Coverage

“We will pay for direct physical loss or damage to Covered Property at the premises described in the Declarations caused by, or resulting from, any Covered Loss.”

Typical Policy Language


How Lead and Mold Claims can be Denied by Insurers

• Late notice

• Failure to mitigate loss

• Failure to cooperate

• Exclusion under the policy


How to Protect Yourself

a) Delead. Before buying or renting ensure that the property has been deleaded and issued a “letter of compliance.”

b) Give your tenant the LEAD LAW NOTIFICATION FORM before you rent to him.

c) Do not avoid renting to families with children. This violates another law.

Against Lead Claims Specifically:

a) Follow Industry Standards: Ensure that your contractor is familiar with all applicable standards.

Against Mold Claims Specifically:



b) Keep good records. Minimize liability by keeping careful records of maintenance and repair.

c) Initiate Governmental Inspections(e.g. Board of Health)

a) Information: know the law



e) Respond to Complaints QUICKLY

h) Call your insurance agent. You may have coverage for early claims. “Lead Paint” or “Mold” exclusion clause may not be sufficient to disclaim coverage.

d) Inspect the property personally each year, and obtain a new occupancy permit for each tenant.


Complete Self Protection

• Asset Protection:– Incorporate– Homestead

• Insurance coverage: – Watch for lead and mold exclusions– Know the scope of the coverage


THANK YOU !!!

governo law firm llc overview of legal trends for lead and mold claims for landlords may 2, 2004...

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