Chipping Away at Health
By: Nena Groskind
Discussions of environmental hazards for condominium communities typically start with mold ─ and end there. But mold is by no means the only concern; it is simply the best known. Lead paint, asbestos and radon warrant equal attention, and most boards don’t know nearly as much about these issues as they should. (Radon is discussed separately in the sidebar on page x.)
The information gap for lead paint is particularly disturbing, according to, David Barrett, CPM, ARM, AMS, CMCA, PCAM, president of RMS Services, and it applies to association managers as well as to their boards. The health risks of lead paint for young children are well known, as is the obligation of landlords to cover or remove lead paint if a child under the age of six occupies a unit.
But an older condominium building, constructed before lead paint was banned in 1978, is as likely to contain the substance as older rental buildings. And community associations may well have an obligation to do something about it. In Massachusetts, the issue would typically arise in two circumstances:
• When a buyer or existing owner who has a young child orders an inspection of a unit; or
• When an investor owner rents a unit to someone who has a child younger than 6, in which case the owner/landlord must obtain a certificate of lead paint compliance – verifying either that an inspection has not found any lead paint, or that it has been treated.
The primary concern is the lead dust that could be produced by chipping or peeling paint that can be touched and ingested by young children, who regularly put their hands in their mouths, explains John Risko, owner of JHR Environmental Testing, whose company provides lead paint inspections. “We focus on any area that might create lead exposure for a child,” he says. And that includes common areas (hallways, elevators, laundry rooms, exercise rooms) as well as the unit in which the child lives. The inspection also includes the exterior of the building and all buildings in the condominium community, even if the unit for which the inspection was requested is the only one occupied by a young child.
“Affirmative Obligation” for Associations
The owner is responsible for dealing with lead if it is found in a unit, but if lead paint is detected there, the association must address lead paint in common areas. An inspector won’t issue a certificate of compliance for a unit, Risko says, unless the common areas are also compliant.
If a child under the age of 6 is living in the community, the association has an “affirmative obligation” to ensure compliance with the lead paint law, Mark Einhorn, a partner in Marcus, Errico, Emmer & Brooks, emphasizes. The board can’t waive that responsibility, he says, nor can it claim “not knowing” about the lead paint as a defense. “Whether the board knows or not, it has a duty to remediate the common areas.” If it fails to do so, and a child is poisoned by lead paint, the association could be liable for damages, he notes. The association might also be sued, Barrett adds, if it fails to obtain a lead compliance certificate for the common areas, and an investor-owner loses a tenant as a result.
Condominiums in states with less stringent lead paint laws aren’t subject to the same requirement. “Maine has no provisions about lead paint specific to condominiums,” Joseph Carleton, an attorney who represents condominiums there, reports. Dwellings and rental units aren’t required to have a certificate of lead compliance prior to occupancy by adults or children, he adds, but state inspectors can order the remediation of lead-based substances “if found to be dangerous.”
New Hampshire, likewise, imposes no lead abatement obligations on condo associations, according to Gary Daddario, a partner in Winer & Bennett, LLC. In Rhode Island, on the other hand, Frank Lombardi, a partner in Goodman, Shapiro, & Lombardi, LLC, advises his condominium association clients to mitigate lead in common areas if an inspection detects lead in a unit occupied by a young child. He bases that advice partly on the state Condominium Act, which requires condominiums to comply with state and local laws and , and partly on the lead paint statute itself. The lead paint law, Lombardi notes, applies to any property occupied by a child under the age of 6, and requires owners to mitigate lead in all areas of a building “frequently used” by young children. “Because the owner of a unit is at least part owner of the [common areas,]” Lombardi says, “a lead inspector could easily order the hallways [and other common areas] mitigated before issuing a clean bill of health for the unit.”
In Massachusetts, boards “grumble and gripe” about their obligation, Risko says, because remediating lead in common areas “is no small thing.” Unless the paint is chipping, or on “moutahable” surfaces (five feet or less from the floor), it can usually be covered rather than removed, but mouthable surfaces include outside corners or walls, doors, door jambs, door casings, stairs, and stair rails – and that’s not a complete list. Paint on non-mouthable surfaces, such as soffits, doors, door frames, trim and windows has to be addressed, as well, and that can be a big job in larger communities.
The exterior may be “an even bigger deal, Risko notes. “If you have 500 windows [from which chipped paint can fall, inside or outside], all will have to be sprayed or repainted in order to bring one unit into compliance.”
Rental property owners will usually abate lead paint in an older building as soon as they acquire it, but most associations don’t address the issue until an owner needs a lead compliance certificate. Einhorn thinks boards should be equally proactive, having common areas inspected and remediated, if necessary, before the issue arises.
“That way, you pick the timing,” he says. “You control your own destiny. You don’t run the risk that a small child will move into the community right after you’ve replaced the roof, leaving you with a huge additional expense for which you haven’t budgeted.” And if the association undertakes renovations in the future, Einhorn notes, “You will know ahead of time that you have to deal with the lead paint” and can include that cost in the renovation budget.
There is no question that a proactive response to lead paint makes sense in communities with older buildings, Risko agrees, ‘but I’ve never had an association ask me to proactively test and abate common areas,” he says. “It’s never happened and it never will.”
An Ongoing Concern
That’s not the only mistake boards make in dealing with lead paint, Barrett says. Most assume that once an inspection determines that lead paint has been properly removed or controlled, “they’re all set forever, and that’s not true. It is probably the biggest misconception” about the law. Boards have an ongoing responsibility to make sure lead paint that isn’t removed doesn’t begin to chip in the future, and that the material covering it remains intact. “A certificate of compliance just means the paint has been controlled,” he emphasizes. “It doesn’t mean you are lead-free.”
The compliance certificate itself makes that clear, Risko notes. It says the certification applies only as long as there is no loose lead paint, and the coverings “continue to form an effective barrier.”
Risko says at least half of the properties he certifies as compliant “fall out of compliance,” and have to go through the inspection and certification process again. “It goes on and on,” he says, adding, “Ongoing maintenance is [essential].”
Another Information Gap
Lead paint exposure is a concern for maintenance workers as well as for young children, Barrett points out. This is another area where he sees a serious knowledge gap, for management companies as well as condominium boards.
Even relatively minor maintenance tasks, such as patching holes in walls, could trigger a host of state and federal requirements if lead paint is present, Barrett points out. At a minimum, any worker who comes in contact with lead paint must have a certificate from the federal Environmental Protection Agency (EPA), indicating an understanding of how to handle it safely. But some states (Massachusetts is one) require a separate state license, as well, for even small-scale repairs and renovations.
Under the state law, if the work will disturb “more than 6 sq. ft. of painted surface per room” in the interior or more than 20 sq. ft. on the exterior, either the individual doing the work, or the company employing the worker, must have a state license. “Most boards and management companies aren’t aware of that,” Barrett says. “They think, ‘My maintenance guys have an EPA certificate, so they can do everything, including lead paint remediation work.’ That isn’t remotely the case.”
Asbestos: Ubiquitous and Dangerous
Like lead paint, asbestos is found in older buildings – constructed before 1977 – “and it could be anywhere,” Jack Carr, senior manager with Portland, Maine-based Criterium- Mooney Engineers, notes, not just wrapped around pipes to insulate them (where most people expect to find the substance), but in the tiles on bathroom walls and floors, in adhesives, in the siding on building exteriors, in plaster, in the siding on building exteriors. Asbestos was cheap, it had many benefits (fire resistance, among them) and it was widely used, Carr says, “until we discovered that it was deadly.”
If an association is renovating older buildings, he advises, asbestos “should definitely be in the board’s head.” Disturbing asbestos can release tiny fibers into the air, which is when it becomes dangerous. “You can eat the stuff without any problem,” Carr notes. “It’s probably good roughage. But breathing it over time can cause fatal lung disease.”
Remediation protocols are similar to those required for lead paint – if the material is intact, it can be encapsulated; if it is friable (beginning to break down) it must be removed. And like lead paint, removal must be handled by licensed contractors. It isn’t a project maintenance workers can undertake legally or safely.
Another problem with asbestos, Carr notes, is it’s not recognizable. “You can’t tell by looking at a tile or a shingle if it contains asbestos. You have to test for it,” which can be done easily, he says, by taking or sending a chip to a laboratory.
For anyone renovating, or doing even mildly intrusive maintenance on an older building, the standard advice for asbestos and lead paint is the same: “Test before you touch.”