Get The Lead Out - Philadelphia's Newest Lead Paint Disclosure And Certification Requirements For Residential Properties
By: Marian Kornilowicz and Alex Barth
December 21, 2012 was the effective date of the Philadelphia Lead Paint Bill 100011-A (the “Ordinance”), which amended Chapter 6-800 of the Philadelphia Code and established new lead paint disclosure and certification requirements for certain residential rental properties. The Ordinance places a substantial burden on the owners of affected properties (“Targeted Properties”), requiring costly and burdensome inspections and certifications regarding the presence of lead paint older housing units. The Ordinance also applies to existing leases, requiring property owners to comply with the Ordinance within ninety days of the effective date, or March 21, 2013.
Certain properties were exempted from the Ordinance:
- housing units in which children six years of age and younger will not be residing during the lease term;
- student housing owned by educational or academic institutions;
- buildings leased entirely to college or university students;
- housing units owned or subsidized by the Philadelphia Housing Authority; and
- units leased under the HUD Housing Choice Voucher Program, more commonly referred to as Section 8.
The Ordinance requires that when entering into a lease with a residential tenant, an owner of a Targeted Property must provide both the tenant and the Philadelphia Department of Public Health with a certification from a certified lead inspector, stating that the Targeted Property is either (i) lead safe or (ii) lead free. A certification that the property is lead safe is valid for two years, whereas a certification that the property is lead free is permanent in nature. If an owner fails to obtain one of the required lead certification before leasing a Targeted Property, the owner may be liable to the City of Philadelphia and/or the tenant for up to double the cost of the following expenses: (i) inspection of the leased property, (ii) rent abatement, (iii) injunctive relief necessary to compel the owner’s compliance with the Ordinance, (iv) attorneys’ fees and costs, and (v) exemplary damages of up to $2,000 per offense. Owners of a Targeted Property must annually certify their compliance with the requirements of the Ordinance or risk having their housing inspection license revoked.
Additionally, owners must notify tenants, in writing, that it is the tenant’s responsibility to periodically inspect the property and notify the owner of the presence of deteriorated paint, which is defined in the Ordinance as paint that is either cracking, flaking, chipping, peeling, chalking, not intact or otherwise separating from the substrate of a building component, except that pinholes and hairline fractures attributable to the settling of a building shall not be considered deteriorated coating. Upon such notification, the owner must promptly make the necessary repairs.
Owners should be careful not to violate other existing laws while trying to comply or exempt themselves from the Ordinance. For example, while properties not occupied by persons under the age of six are exempt, owners must be careful not to inquire if a potential tenant has children or intends to have children under the age of six living in the property, because inquiring about children when leasing a residential property may be a violation of the Pennsylvania Human Relations Act or the Federal Fair Housing Act. The Owner may only inquire if children will reside in the property after the owner has made a firm offer to rent to that tenant.
Marian A. Kornilowicz is the Chair of the Business Practice Group of Cohen Seglias Pallas Greenhall & Furman PC. His practice is concentrated in the representation of clients in varied business transactions and real estate matters.