The Massachusetts Lead Law
The Massachusetts Lead Poisoning Prevention Act (the "Lead Law") requires a property owner to remove or cover all lead paint hazards in homes built before 1978 where any children under 6 live.5 Whenever a child under 6 years old comes to live in a rental property, the property owner has a responsibility to discover whether there is any lead paint on the property and to remove or properly cover any lead paint hazards (delead) to protect the young children living there.
Lead paint hazards include:
- Surfaces that have cracked, chipped, peeling, or otherwise loose lead paint on them;
- Intact lead paint on windows, doors, baseboards, other moveable or impact surfaces, and painted portions of walls that are 5 feet or less from the floor; and
- Other painted surfaces that are readily accessible to children.6
The Lead Law covers all owners of all residential rental property, including public and subsidized housing, as well as owners living in their own single or multi-family home. If the landlord fails to correct dangerous lead conditions in a timely fashion, she can be held legally responsible for any injuries that are caused by her failure to carry out her duties to remove those lead paint hazards.7
The Massachusetts Department of Public Health Childhood Lead Poisoning Prevention Program (CLPPP) was established by the Lead Law to assist citizens in the prevention, screening, diagnosis, and treatment of lead poisoning, including eliminating the sources of that poisoning. It is the main government agency providing information and assistance about lead poisoning to families with young children. Its website contains a wealth of information about lead poisoning and how to avoid or prevent it.
Your Right to Know about Lead Hazards before Renting
Before finalizing any rental agreement concerning a home or apartment built before 1978, a landlord is required to provide a prospective tenant with information about possible lead hazards in the property, even if the tenant does not have any children.8 The landlord must give you all the information that she has about the presence of any known lead paint on the property and must give you the following papers before you agree to rent the apartment or sign any rental agreement:
- The Tenant Lead Law Notification and Certification Form (as required by CLPPP, see Form 16);9
- A copy of the most recent lead inspection report (if a lead inspection has ever been done on the property); and
- A copy of any Letter of Compliance or Letter of Interim Control (if any deleading work has been done on the property).
Lead Law Notification Form
The CLPPP Tenant Lead Law Notification and Certification Form provides tenants with information about the dangers of lead poisoning, methods to combat or reduce the risks of lead poisoning, the tenant's rights with regard to having lead hazards removed from the property, the landlord's responsibilities concerning deleading the property, and government resources to learn more about lead poisoning.
The property owner and the new tenant each must sign two copies of the Tenant Lead Law Notification and Certification Form, and the property owner must give the tenant one of the signed copies to keep. This form is for compliance with both Massachusetts and federal lead notification requirements.
In addition, the property owner is required to tell the tenant any information or knowledge that she has concerning the existence of lead on the property. If asked about lead paint, the landlord may not make false statements or misrepresentations or tell half-truths.10 If the landlord does not comply with all of these disclosure requirements, she can be held
You may be able to find the lead inspection history of a property you want to rent by going to CLPPP's online database for lead-inspected homes.
By entering a street name and number, you may be able to find out whether a property has ever been inspected for lead, has had any lead hazards, or has a letter of compliance. If you cannot find the property but believe there has been an inspection, you can call the CLPPP at 800-532-9571.
Real Estate Agents
A prospective tenant should ask the real estate agent (if one is involved in renting the property) about the existence of lead on the property. If asked, the real estate agent is required to tell the tenant any information that she actually has concerning the existence of lead on the property. If a real estate agent fails to tell a tenant about known lead hazards on the property, she may be liable for engaging in an unfair or deceptive act in violation of the Massachusetts Consumer Protection Act.13
Additional Protections under Federal Law
In addition to Massachusetts state laws, federal law requires that property owners and real estate agents renting private housing, public housing,14 housing receiving federal assistance, or federally owned housing built before 1978 must:
- Tell prospective tenants about all known lead-based paint in the property and any available reports on lead in the housing;
- Give tenants a government pamphlet entitled Protect Your Family from Lead in Your Home (for a copy of this pamphlet in different languages, see the Environmental Protection Agency's website
- Include certain warning language in the lease as well as in signed statements from all parties verifying that all notification requirements were completed; and
- Retain signed acknowledgments for three years, as proof of compliance.
A property owner or real estate agent who fails to give the proper information to a tenant can be sued for triple the amount of damages caused by the failure to provide that information. In addition, they may be subject to civil and criminal penalties.15
A property owner or real estate agent cannot get around the legal requirements to disclose information about known lead hazards simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. A property owner cannot refuse to rent to you simply because she does not want to spend the money to delead her property. Any of these acts is a violation of the Massachusetts Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.16 If you suspect that a landlord is not renting to you because you have children and the property might contain lead paint, contact the Massachusetts Commission Against Discrimination (MCAD) or your local Fair Housing Commission. Also see Chapter 7: Discrimination for further information about how to deal with illegal discrimination.
7 . G.L. c. 111, §199. The property owner will be held responsible (liable) for those damages even if she claims that she did not know that a child under 6 was living on her property or that she did not know that her property contained dangerous lead paint. See Bencosme v. Kokoras, 400 Mass. 40, 43 (1987); Bellemare v. Clermont, 69 Mass. App. Ct. 566, 568-569 (2007).
8 . G.L. c. 111, §197A(d); see also The Disclosure Rule and Pre-Renovation Education Rule promulgated (at 24 C.F.R. §35) jointly by the EPA and HUD in 1996 pursuant to Residential Lead-Based Paint Hazard Reduction Act of 1992, Pub. L. No. 102-550, Title X of the Housing and Community Development Act of 1992, §1018 (1992), which requires sellers, landlords, and agents to provide lead hazard information and to disclose information about the presence of known lead paint and/or lead paint hazards to prospective homeowners and tenants in pre-1978 housing prior to their housing purchase or rental decision.
9 . This free form can be found on the Massachusetts Department of Public Health’s website in English and in Spanish at: www.mass.gov/eohhs/gov/departments/dph/programs/environmental-health/exposure-topics/lead/lead/tenant-lead-law-notification.html.
13 . G.L. c. 93A; Nei v. Burley, 388 Mass. 307, 316 (1983). DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 801 (2013) (“where it is unreasonable in the circumstances for a broker to rely on information provided by the seller, the broker has a duty to investigate further before conveying such information to prospective buyers.”).
14 . Housing for the elderly or for persons with disabilities is not required to follow federal law. However, the exclusions do not cover housing in which any child who is less than 6 years of age resides or is expected to reside. See 24 C.F.R. §35;40 C.F.R. §745.
15 . G.L. c. 111, §197A(e); Residential Lead-Based Paint Hazard Reduction Act of 1992, Pub. L. No. 102-550, Title X of the Housing and Community Development Act of 1992, §1018 (1992) (codified at 42 U.S.C. §4852d(2000)).