Peeling Back the Layers

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On the eve of the City Council’s February vote to approve a strict new lead poisoning law, 27 nonprofit housing groups ran a giant ad in the New York Times, Daily News, Amsterdam News and El Diario: “Unintended Consequences: Lead Paint Bill Jeopardizes Affordable Housing.” In April, nine of those groups went even further, filing a lawsuit to block implementation of the law.

Led by the Community Preservation Corporation, a housing finance group, the plaintiffs argue that the legislation makes it nearly impossible to rehab older buildings without risking a slew of frivolous lawsuits and a spike in insurance costs. “This is a major deterrent for a good landlord to take over [a dilapidated building] and turn it around,” says John McCarthy, executive vice president of CPC.

But the law’s defenders say just the opposite: While the law imposes stricter standards for inspection and clean-up, responsible landlords have no reason to worry. “The new law talks about ‘reasonableness.’ All a landlord needs to do is act reasonably,” argues Matthew Chachère, an attorney with the Northern Manhattan Improvement Corporation, who helped draft the bill.

Are tenant advocates naïve? Are developers overreacting? With the law set to kick in this August, it’s still anybody’s guess. City officials, advocates and housing developers are busy hashing out regulations that will govern the law’s implementation–and could ultimately satisfy both sides. There may be room for compromise on:

Liability

    THE LAW SAYS: “In any multiple dwelling erected prior to January 1, 1960, it shall be presumed that the paint or other similar surface-coating material in any dwelling unit where a child of applicable age resides is lead-based paint.” And “an owner shall take action to prevent the reasonably foreseeable occurrence of a [lead hazard].”

    OPPONENTS SAY: The law greatly broadens the grounds for tenants to sue housing providers by operating on the presumption that all paint in pre-1960 buildings is lead-based, until proven otherwise. If a child tests positive for lead, parents will be able to blame the landlord, whether or not the child was actually poisoned in the home–and housing groups note they have to pay their lawyers even when cases turn out to be frivolous.

    PROPONENTS SAY: The law is no different from its predecessors: Tenants won’t win lawsuits unless they can prove that their apartments did, in fact, contain lead and their landlords could or should have known about the danger. Besides, the presumption isn’t far off. A 2004 City Planning report estimates that 90 percent of occupied apartments built prior to 1947 contain at least some lead-based paint, as do 69 percent of those constructed between 1947 and 1959. Without the presumption, there would be no incentive for landlords to regularly inspect for lead.

    WIGGLE ROOM: There isn’t a whole lot the regulations can do on the liability issue. The best bet for nervous landlords is to hire a professional testing firm, for roughly $500 per two-bedroom unit.

Insurance

    THE LAW SAYS: Nada.

    OPPONENTS SAY: It’s already difficult to find insurers willing to cover affordable housing–and this could make it impossible. Several companies are exempting lead liability from their coverage, leaving developers to shoulder the risk. Others, anticipating a surge in litigation, are raising their deductibles. All this will deter housing developers from rehabilitating buildings that may have even the slightest chance of containing lead.

    PROPONENTS SAY: Insurance companies excluded lead long before this bill was even on the table. Public health should not be compromised to accommodate the industry’s fiscal concerns.

    WIGGLE ROOM: Both sides are starting to lobby state legislators to change industry rules. The State Insurance Department could, for example, mandate a certain level of coverage or require discounted rates for buildings certified as “lead-free.”

Inspection

    THE LAW SAYS: “The owner shall cause an investigation to be made for peeling paint, chewable surfaces, deteriorated subsurfaces, friction surfaces [such as window sills and door frames] and impact surfaces. Such investigation shall be undertaken once a year and more often if necessary…”

    OPPONENTS SAY: In order to protect themselves from litigation, owners would have to perform near-obsessive inspections. For instance, since lead dust is now considered a hazard, landlords need to inspect and test any area with a potential for dust, and they have to find a pro to do the job.

    PROPONENTS SAY: Owners were already mandated to inspect once a year. Requiring them to check more often “if necessary” gives tenants a tool to protect themselves; landlords can no longer claim not to have known about potential threats. Landlords who suspect lead can do simple swipe-tests that cost less than $10 a pop.

    WIGGLE ROOM: Once a building is certified as “lead-free,” its owner is off the hook when it comes to yearly inspections. The regulations could extend that provision to entire groups of buildings (such as ones that have been gut-rehabilitated) if appropriate.

Clean-Up

    THE LAW SAYS: “‘Remediation’…shall mean the reduction or elimination of a lead-based paint hazard through the wet scraping and repainting, removal, encapsulation, enclosure or replacement of lead-based paint…” and “Such rules shall provide for temporary relocation provided by the owner of the occupants of a dwelling…when work cannot be performed safely.”

    OPPONENTS SAY: Owners may not be able to find certified workers within the 21-day correction window. And who decides whether or not the work can be performed safely? A strict interpretation could require tenants to be relocated during simple plumbing or repair work. Similarly, a provision requiring the removal or covering of lead-based paint on friction surfaces when an apartment is vacated could add thousands of dollars to a renovation.

    PROPONENTS SAY: Because the law requires certified professionals to address both hazards and violations, children will be better protected. Lead dust testing would be performed upon completion of the work, making it easy to prove that the job was done right.

    WIGGLE ROOM: The law already allows an exemption for emergency repairs. Regulations should clarify when tenants would need to be relocated and how the owner should proceed if they refuse. Regulations written for the original Local Law 1 of 1982 proposed, for instance, that a family could stay in place as long as the work was contained and the family had access to the dwelling’s kitchen, bathroom and exits.

Timeframes

    THE LAW SAYS: “When the department serves a notice of violation… the notice of violation shall specify the date by which the violation shall be corrected, which shall be twenty-one days after service of the notice of violation.”

    OPPONENTS SAY: The deadlines are unrealistic. If major work needs to be done to correct an underlying defect such as a leaky pipe, for instance, it can’t necessarily be done within three weeks. Tenants sometimes don’t even allow access to their apartments on demand.

    PROPONENTS SAY: The new law uses the same timeframes that have been in place for decades, which allow two postponements of 14 days each. It does require stricter adherence to this schedule, but that’s the only way to get landlords to act quickly.

    WIGGLE ROOM: The law already allows an additional postponement to be granted at the city’s discretion if the landlord can demonstrate reasonable efforts to get the work done. The regulations could help clarify circumstances that would constitute fair grounds for postponement.