Updated Lead Based Paint Disclosure FAQs

EPA Fines Have Increased to $21,018 Per Violation!


Why do we require the Lead Based Paint Disclosure (LBP)?
The LBP is required by a federal law written in 1992 to protect purchasers and renters against exposure to lead based paint. The act is called the Residential Lead-Based Paint Hazard Reduction Act of 1992, also known as Title X (“Act”).

What housing is required to have an LBP?
Housing that was built prior to 1978, whether it is for sale or for rent.  There are 2 different GAR disclosures tailored for each situation.  For sales, it is GAR F316.  For rentals, it is GAR F918.  If you are using RE forms, the LBP disclosure form is RE 140 and the LBP pamphlet is RE 141.

Do fixtures manufactured or painted prior to 1978 require an LBP?
Yes, the Act includes lead-based paint hazards.  A “LBP hazard” includes fixtures that may have been manufactured or painted prior to 1978, even if the property itself was built in 1978 or later. Consider antique doors, antique light fixtures or any other elements in the property that may have been created prior to 1978. If in doubt, disclose.

When must LBP disclosures be made?
The LBP disclosure of known information on lead-based paint and lead-based paint hazards before the binding date of contracts and leases. 

What if a LBP disclosure is not in compliance with the federal law?
The Act carries huge fines for violations. Each violation currently carries a fine of $21,018.00! 
Each disclosure has multiple sections that need completion.  Assume that investigators from the EPA are here in Georgia, spot checking for violations. Because they ARE here.

What is Required and When?

Before a Purchase Agreement or a Lease becomes binding, federal law requires the following:

• Give an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards ("Protect Your Family From Lead In Your Home" GAR CB 04) pamphlet to the Buyer.
• Disclose any known information concerning lead-based paint or lead-based paint hazards. The seller or landlord must also disclose information such as the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.
• Provide any records and reports on lead-based paint and/or lead-based paint hazards which are available to the seller or landlord.
• Include an attachment to the contract or lease (or language inserted in the lease itself) which includes a Lead Warning Statement and confirms that the seller or landlord has complied with all notification requirements. Sellers or landlords, and agents, as well as homebuyers or tenants, must sign and date the attachment.
• Sellers must provide homebuyers a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. However, parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may also waive this inspection opportunity.  Remember, if the inspection period is not waived, the buyer can void the contract during the inspection period if lead-based paint is found.

  
Compliance is Easy
If you represent the Seller of a property that falls into the Lead Based Paint disclosure requirement, the GAR Seller Representation (listing) forms now include a section for the disclosure. In item 7 of the listing, the Seller discloses to their Broker whether the dwelling, or any part of the dwelling, was constructed prior to 1978. The Seller also agrees to complete and provide the Broker with a signed Lead Based Paint Disclosure when the listing is signed.  The listing agent should also sign the disclosure at (f). It should be attached to the listing as an exhibit. 

The Listing Agent can distribute it 2 ways: The best way is to upload it to FMLS /and GAMLS. The Exhibit can then be downloaded by the Buyer’s agent to sign before an offer is made.  This method satisfies the requirement is that the LBP Exhibit be executed by both parties prior to a binding agreement.  Of course, copies of the disclosure can also be placed in the property for agents and prospects to take. 

If you represent the Buyer, make it a habit to include "Protect Your Family From Lead In Your Home" GAR CB 04, along with Protect Yourself When Buying a House, with every Brokerage Agreement.  Be sure to mark the box that it has been provided to the buyer in the Brochures section of the Buyer Brokerage Agreement, so you can prove that it was delivered.  (And avoid a big fine.)

Buyers often miss marking item (d) and an alternative at (e) on the LBP Disclosure.  Item (d) confirms that the buyer has received the pamphlet and item (e) either waives an inspection or allows a 10 day period for an inspection.  If these sections are not marked, the disclosure has not been completed; it will get kicked back and open to the fine by the Environmental Protection Agency.

It’s the Law
Sellers sometimes don’t want to sign the disclosure and push back. The LBT disclosure is mandatory. To confirm the seller’s and buyer’s responsibilities (and help you out with your sellers), this language is embedded at the top of the LBP Disclosure.

UNDER FEDERAL LAW, THIS EXHIBIT MUST BE SIGNED BY THE SELLER AND BUYER, AND THE BUYER PROVIDED WITH A COPY OF THE LEAD-BASED PAINT BROCHURE PRIOR TO THE BUYER AND SELLER ENTERING INTO A BINDING AGREEMENT. THIS AGREEMENT MUST BE FILLED OUT FOR ALL HOUSING BUILT PRIOR TO 1978.

August 4, 2023

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