The federal government pays a lot of attention to lead based paint (LBP) requirements, so does GAR and so do we. The new 2023 GAR forms have 2 changes regarding LBP that you need to know. They are in 2 different documents, the listing agreement and the LBP disclosure exhibit.
The Exclusive (and the Non-Exclusive) Seller Brokerage Engagement Agreement (Listing Agreement)
The listing agreement now includes a section that requires the Seller to complete and sign an LBP Disclosure at the time of listing and it is required to be attached to the listing as an exhibit, if the property or a portion of it was constructed prior to 1978. The new language alerts the seller that federal law requires the disclosure of lead-based paint in homes constructed prior to 1978 and eases the agent’s job of explaining to the seller why
it has to be done. This is the language: Lead-Based Paint Disclosure. Federal law requires disclosure of lead-based paint in homes/residential properties, or a portion thereof, constructed prior to 1978. [select one below]
a. A dwelling on the Property, or portion thereof, was constructed prior to 1978, Seller agrees to complete and provide Broker with a signed Lead-Based Paint Disclosure Exhibit (F316) at the same time as the signing of this Agreement and is attached as Exhibit “____”.
b. No dwelling on the Property, or portion thereof, was constructed prior to 1978.
The Lead Based Paint Disclosure Exhibit (LBP)
New language in section (e) clarifies that the buyer has the right to a 10 day period to test for lead. This 10 day period is separate from any other due diligence or contingency rights and stands on its own unless the buyer waives the 10-day right at (e)(ii). This is the language:
(e) Buyer has: [initial (i) or (ii) below]:
(i) ___________________________ Received a ten (10) day opportunity (or mutually agreed upon period) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards (prior to Buyer being obligated under the Purchase and Sale Agreement); or
(ii) ___________________________ Waived the opportunity to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards (which shall not prevent Buyer from evaluating the Property for lead-based paint and lead-based paint hazards during any Due Diligence or Right to Request Repairs Period).
Compliance officers for the Environmental Protection Agency will drop into real estate office unannounced to audit contracts for residential properties constructed prior to 1978. The fine for omissions and violations to the LBP law has just increased from $16,000 per violation to over $19,000 per omission. Either or both of the selling and listing agents can be fined. Yikes. Let’s get it right!
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