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Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045

Overview of Legal Trends for Lead and Mold Claims for Landlords May 2, 2004 Massachusetts Rental Housing Association. Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045. Lead Presentation Outline. Lead Poisoning: Definition and Treatment

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Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045

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  1. Overview of Legal Trends for Lead and Mold Claims for Landlords May 2, 2004Massachusetts Rental Housing Association Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045 Governo Law Firm LLC

  2. Lead Presentation Outline • Lead Poisoning: Definition and Treatment • The Massachusetts Lead Law • Lead Poisoning Myths • New Developments Governo Law Firm LLC

  3. 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. Governo Law Firm LLC

  4. 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. Governo Law Firm LLC

  5. 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. Governo Law Firm LLC

  6. 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. Governo Law Firm LLC

  7. Lead Poisoning Myths: 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. Governo Law Firm LLC

  8. Lead Poisoning Myths: 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. Governo Law Firm LLC

  9. Lead Poisoning Myths: 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. Governo Law Firm LLC

  10. Lead Poisoning Myths: 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. Governo Law Firm LLC

  11. Lead Poisoning Myths: 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. Governo Law Firm LLC

  12. Lead Poisoning Myths: 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. Governo Law Firm LLC

  13. Lead Poisoning Myths: 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. Governo Law Firm LLC

  14. Lead Poisoning Myths: 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. Governo Law Firm LLC

  15. Lead Poisoning Myths: 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. Governo Law Firm LLC

  16. 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 water Boston Globe April 29, 2004: “Lead levels in water high in 10 locales” Governo Law Firm LLC

  17. Mold Presentation Outline • Mold Explosion • Potential Parties • Theories of Liability • Claims Against Landlords • Who to Hire for Clean Up • Insurance Coverage • Protecting Yourself Governo Law Firm LLC

  18. Mold Explosion Ballard 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 Governo Law Firm LLC

  19. Landlords Owners Design Professional Contractors Construction Manager Subcontractors Realtors Building Management Suppliers Manufacturers Insurance Companies Condo/Associations Potential Parties Governo Law Firm LLC

  20. Negligence Strict Liability Contract Breach of Warranties Fraud Misrepresentation Failure to Disclose Constructive Eviction Bad Faith/Coverage Worker’s Compensation Nuisance, Trespass ADA Spoliation Theories of Liability Governo Law Firm LLC

  21. 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 Governo Law Firm LLC

  22. Claims Against Landlords • Reprisal Statues: • Except for non-payment of rent, can not evict tenants who report mold • Chapter 93A: • Consumer Protection Governo Law Firm LLC

  23. Mold Cleanup: Who to hire? • Mold remediators must negotiate a complex web of guidelines and standards. • 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 Governo Law Firm LLC

  24. Insurance Coverage Typical Policy Language “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.” Governo Law Firm LLC

  25. How Lead and Mold Claims can be Denied by Insurers • Late notice • Failure to mitigate loss • Failure to cooperate • Exclusion under the policy Governo Law Firm LLC

  26. How to Protect Yourself Against Lead Claims Specifically: • Delead. Before buying or renting ensure that the property has been deleaded and issued a “letter of compliance.” • Give your tenant the LEAD LAW NOTIFICATION FORM before you rent to him. • Do not avoid renting to families with children. This violates another law. Against Mold Claims Specifically: • Follow Industry Standards: Ensure that your contractor is familiar with all applicable standards. Governo Law Firm LLC

  27. How to Protect Yourself • Information: know the law • Keep good records. Minimize liability by keeping careful records of maintenance and repair. • Initiate Governmental Inspections • (e.g. Board of Health) Governo Law Firm LLC

  28. How to Protect Yourself • Inspect the property personally each year, and obtain a new occupancy permit for each tenant. • Respond to Complaints QUICKLY • Call your insurance agent. You may have coverage for early claims. “Lead Paint” or “Mold” exclusion clause may not be sufficient to disclaim coverage. Governo Law Firm LLC

  29. Complete Self Protection • Asset Protection: • Incorporate • Homestead • Insurance coverage: • Watch for lead and mold exclusions • Know the scope of the coverage Governo Law Firm LLC

  30. THANK YOU !!! Governo Law Firm LLC

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