Deleading Rental Properties in Massachusetts
By Kimberly Rau, MassLandlords
One of the largest issues for landlords who own older housing units (constructed prior to 1978) is lead paint. Lead paint is a health hazard, and Massachusetts is firm about requiring landlords to keep their rental units safe (and holding them responsible if someone gets sick). Since you cannot deny tenancy to someone because they have children, and you cannot rent a unit that contains lead hazards to anyone with children, landlords are put in a Catch-22: You must delead. The type of paint in your rental unit is not necessarily an indicator of whether something is lead-free. Both oil and latex paint may still have lead; only testing a sample can tell you for sure whether it is safe.
In this overview, we will address the history of lead paint, the laws you’re bound to as a landlord and your options for creating a safe space for your tenants if your rental housing unit has lead paint.
Why Did We Ever Use Lead Paint?
Lead paint was invented around the year 300 BCE, and came in three colors. Lead chromate gave us yellow paint, lead oxide yielded a red color, and lead carbonate provided white. It remained popular for so long because it was very dense and opaque, which provided incredible coverage and durability. The only problem is, it was also very deadly. Lead paint was banned in 1978, but plenty of older homes had — and still have — lead paint on the walls.
Unlike other naturally occurring metals such as iron or zinc, lead has no useful biological function for people. In fact, in high quantities, it can kill you. In lower quantities, lead can lower your IQ to an extent that may impact both earning potential and decision-making skills. Recent studies have corroborated the long-standing belief that people with lead exposure have a higher likelihood of committing a crime. Banning the sale of lead paint didn’t do anything to remove the paint in older homes.
What About all Those Old Housing Units?
Recognizing that older homes would still contain lead paint, the State of Massachusetts enacted laws and regulations to ensure that rental homes would not put vulnerable people in contact with lead paint hazards. MGL Chapter 111, Section 197 deals with tenant lead law notification and 105 CMR 460 outlines deleading procedures for landlords. The laws are working: Since their enactment in the 1970s, poisonings across every age group and population have gone down significantly, but there’s still more work to do. For a brief history on the lead laws in Massachusetts, see the second section of this article.
So what does that mean for you as a landlord? First, any house constructed prior to 1978 is assumed to contain lead paint unless proven otherwise. As a landlord, you a strictly liable for lead poisoning: If someone gets sick from lead paint, you can be held responsible to pay for it even without evidence. Under Massachusetts law, landlords are not allowed to refuse a rental to families on the basis of having children. If your rental unit has lead, you must delead it before allowing children to live there.
If you are looking to purchase a new property, be wary of realtors who check off “no knowledge of lead” for that property. That just means there’s no evidence of it so far, but as a landlord, you cannot have a child under the age of 6 living in a rental housing unit with lead hazards whether known or unknown. For more information, visit the state’s site for the Childhood Lead Poisoning Prevention Program.
As a reminder, lead hazards may also be present in pipes, soil, daycares, and aviation fuel—but it’s still on you if someone you’re renting to gets poisoned, unless you have a deleading certificate for your property. If you do, the renter must provide evidence that the lead exposure came from your rental unit.
A Stop-gap Measure: The Letter of Interim Control
Deleading is the best long-term solution for any landlord. But it’s expensive and time-consuming. Fortunately, you don’t necessarily have to do it all at once. Doing something about the problem is better than ignoring it entirely. A Letter of Interim Control, while not the same as a deleading certificate, will give you two years to triage and alleviate the worst of the problems.
The process works like this: You do the most urgent work and get an interim inspection. After two years, repeat the deleading process fully to finish the project.
Long-term, however, you are going to need to get a letter of deleading compliance. This letter states that at the time it was written, your property had no lead hazards present. For the letter to remain valid, you must keep your rental unit in compliance.
Starting to Delead Your Property
Whether you’re planning to tackle the issue all at once, or looking to triage your issues over a couple of years, all deleading journeys start with a property inspection. Once you know what the issues are, you can start addressing them.
That initial inspection will examine the interior and exterior of your property, including all walls and painted surfaces. A proper inspection will measure lead levels with a specialized XRF gun, not an unreliable chemical kit from a retail store. The results of this inspection will also indicate whether the lead abatement process will be low, moderate or high risk.
After your inspection, it’s time to start with removal. This goes for people seeking a deleading certificate or a letter of interim control. You may opt to hire a deleader (and if your activities are high risk, you do not have the option of doing it yourself). This can cost up to $30,000 depending on the scope of the project. The statewide average for deleading hovers around $6,000 per unit.
If your deleading activities are classified as low- or moderate-risk, you may opt to become trained in deleading and fix the problem yourself. Low-risk activities will require you to pass a test to be able to get credit for deleading; moderate-risk jobs will require you pass a course first. This may or may not be worth it to you, depending on how much time you have to address the problem.
What Options Do I Have for Deleading My Property?
Depending on the results of your inspection, what has to be done to get your property in compliance will vary. If you are seeking a letter of interim control, you won’t be completing everything at once. If you are looking for your property to be certified as deleading compliant, you will be doing everything at this point.
One option is to remove whatever object contains lead. This is simple enough if it’s a door or door trim. It’s also a viable option for some walls. You just have to take it out and replace it with something that doesn’t contain lead.
If the object with lead cannot easily be removed (think ceilings or sheetrock), you may be able to cover it instead. A new dropped ceiling will “cover over” an old lead-covered plaster ceiling and bring the whole ceiling into compliance.
A third option is to use special encapsulant paint and completely surround the surface that contains lead.
Finally, you may be able to scrape or chemically remove the lead and then repaint. Special architectural elements may be removed and dipped; doorjambs can be scraped. The route you take will depend on the problem you need to solve.
If you are not seeking a letter of interim control and are completing things all at once, then once you are done with everything, request a final inspection and certificate. At that point, you must remain in compliance going forward in order to remain certified.
It’s important to note that following the EPA’s RRP (renovation, repair and painting) guidelines is not the same as deleading your property. RRP regulations are designed to contain lead dust when performing work not related to deleading. For example, if you need to repair a broken pipe that is behind a wall covered in lead paint, you would use RRP to safely cut into that wall to do your repair. But work done by an RRP renovator does not equal deleading compliance, and in fact could hurt your property’s chances of ever being considered “deleaded.”
Only a state-certified deleading process can get you a deleading certificate. If you use RRP procedures to try and “renovate away” the lead, your property could be blacklisted. In other words, you will never be able to get a deleading certificate for your property.
When Should I Delead?
The best time to delead is during your next vacancy. This saves you money, of course, and may be faster.
However, sometimes that isn’t an option. For example, if a tenant of yours announces that a baby is on the way, you must delead before the baby is born. (Ideally, delead immediately.) If a renter is about to adopt a child under the age of 6, you must delead. You cannot tell or ask your renter to leave, or try to persuade them. You cannot pay them to leave, and you cannot ignore the issue. If you do any of this, you’ll be discriminating against them or violating the lead laws. Deleading is the only way to go.
You can accomplish this by relocating your tenant for the duration of the project (at your expense) or relocating them for the day if possible. If done properly, using the legally required plastic containment is safe.
What are the Requirements for Deleading My Property?
In 2017, the state of Massachusetts revamped its deleading regulations. The seven major changes were a downscope to accessible “mouthable” areas; deferring to the American Society for Testing and Materials (ASTM) for encapsulation; the addition of friction surfaces; lowering the lead paint level; requiring two inspections for chemical stripping; and a reduction of notice delays.
The results varied. We’ll look at each of the changes and what they meant for landlords.
Downscoping Accessible/Mouthable Areas
Before December 2017 “accessible/mouthable” areas in a residence (i.e., areas small children are likely to be able to access and potentially put their mouth on) included the outside corners of walls, doors, door jambs and casings, window casings, balusters, tread and risers, thresholds, lattice work, columns 6 inches or larger in diameter, clapboards and shingles, and masonry.
With the downscope, mouthable areas were limited to window sills five feet or less from a floor, stair tread or the ground; hand rails and railing caps. This resulted in deleading costs to landlords lowering by 40 percent.
Lowering the Blood Level
Prior to December 2017, the lead blood level that indicated poisoning was 25 micrograms per deciliter. After that, the level was lowered to 10 micrograms per deciliter. That led to a tenfold increase in the average number of “poisonings,” in the legal sense. Lowering the blood lead level did not come with any additional funding for landlords. There is no defense possible without a lead certificate. This new lower blood lead level, combined with the reduction in accessible/mouthable surfaces, means deleading is now more important and more affordable than ever.
Deferring to the ASTM
Prior to the changes, Massachusetts had state-specific regulations for encapsulation of lead hazards. Starting Dec. 1, 2017, it began deferring to the ASTM’s regulations. This allowed landlords to use encapsulants for outdoor lead remediation.
The 2017 changes stated that door edges, door jambs and stair treads are lead hazards and must be deleaded at all points of potential friction where components touch. Stair treads must be abated entirely from baluster to wall or can be covered up. Encapsulation is not allowed.
Lower Paint Lead Level
This change, which was not subject to public comment and review, lowered the acceptable level of lead found in paint from 600 parts per million (ppm) to 90 ppm. This effectively raised the number of paint samples that would now “test positive” for lead and could override the cost savings from some of the other changes.
Two Inspections for Chemical Strippers
The 2017 changes noted that chemically stripping something is a “high risk” deleading activity. If chemical stripping is used, the woodwork must be inspected once the wood is bare, and again once it is repainted. This includes wood treated with off-site dipping processes.
For vacant or owner-occupied properties, landlords are still required to notify authorities of deleading. However, there is no waiting period before you can begin work. This could potentially save landlords money, as you will not be waiting with a vacant unit until work can begin, and jobs may be completed faster.
Once you have deleaded, you need to keep the property in compliance. If all lead was removed, compliance is effortless. If encapsulants were used, that encapsulant paint must remain in perfect condition or else be repainted. Any peeling or chipped paint is considered non-compliant, and you will have 30 days to fix it. Use proper deleading protocols to remedy the issue. No re-inspection will be required.
Depending on your municipality, your local Housing Authority may require an inspection within the last 10 years to maintain your letter of compliance. Check your local regulations to ensure your property stays in compliance.
If you’re thinking of getting around the lead laws by simply ignoring them, or rejecting families with small children as tenants, think again: Penalties for discrimination and flouting the law are severe.
Regarding discrimination: If you tell a family with children that your unit is not deleaded, refusing them tenancy, you will be in violation of the state’s anti-discrimination laws. The first offense will cost you $10,000; a third offense will set you back $50,000.
If you violate the lead paint laws, the penalties for that are just as steep. As we reported a few years ago, landlords who were found to be in violation of the lead paint disclosure laws faced thousands in fines. One Boston landlord was looking at around $84,000 in fines for multiple properties, and that was just for paperwork violations.
Denying Tenancy Costs Landlord $15,000
In November 2020, a woman filed a complaint with the Department of Housing and Urban Development (HUD), alleging that a Springfield landlord denied her a tenancy upon learning she had a child under 6 years old. It is illegal to deny someone tenancy instead of deleading the property.
The agreement reached between the two parties had to be approved by HUD. Though the agreement explicitly states that it should not be considered an admission of any law violation, it requires the landlord pay the denied tenant $15,000 in installments, with the final payment due in March 2023. It also mandates that the landlord undergo fair housing training; test and de-lead his properties as necessary; and include language in all future rental advertisements that states he is complying with all federal and state fair housing laws.
HUD approved the agreement in June 2021.
FAQ: Is it illegal to rent a unit with unknown lead levels, or just unwise?
Q: I understand the law will hold the landlord “strictly liable” if children who had lived in the rental are later shown to have unacceptably high lead levels in their body. Does that mean that it is unwise, but not illegal, to rent out a unit with unknown levels of lead? Or is it both unwise and illegal?
A: “Unwise but not illegal” would appear to be incorrect. The word “illegal” is typically used for criminal wrongdoing, but this would be unlawful. A child under the age of 6 may not live in a home with lead hazards, whether known or unknown.
Therefore, it is unlawful to rent a home with lead hazards, whether known or unknown, to a child under the age of 6.
One way to prove this is the case law that establishes the implied warranty of habitability, Hemingway v. Boston Housing Authority, which mandates compliance with 105 CMR 410.
105 CMR 410 reads:
410.750: Conditions Deemed to Endanger or Impair Health or Safety
The following conditions, when found to exist in residential premises, shall be deemed
conditions which may endanger or impair the health, or safety and well-being of a person or persons occupying the premises. ...
(J) The presence of leadbased paint on a dwelling or dwelling unit in violation of 105 CMR 460.000: Lead Poisoning Prevention and Control. (See M.G.L c. 111, §§ 190 through 199.)
Another way to prove it is directly at 105 CMR 460, which reads:
460.100: Duty of Owner(s) of Residential Premises
(A) Except as provided in 105 CMR 460.100(B) through (D), the owner(s) of a dwelling unit or residential premises containing dangerous levels of lead in any paint, plaster or other accessible structural material are required to obtain a Letter of Full Compliance or a Letter of Interim Control, in the following circumstances:
(1) A child younger than six years old resides therein, whether or not the residential premises have been inspected pursuant to M.G.L. c. 111, § 194 or otherwise...
Ignoring the problem of lead paint is something that will catch every landlord sooner or later. The best practice here is to delead during your next vacancy and avoid the headache of an unplanned project or the extreme costs of lead poisoning. The strict liability is on you, the landlord, at all times. Train to DIY if you want, make a certificate of deleading compliance your goal, maintain that compliance and never paint with very old paint. Lead is a legitimate health hazard and deleading as soon as possible should be a top priority for Massachusetts landlords.
To view all of this presentation, you must be logged-in and a member in good standing.
Slides are available only for members in good standing who are logged in.