Real estate agents who have religiously made lead-based paint disclosures since September 1996 could still find themselves on the wrong side of litigation if a precedent-setting federal court decision stands that essentially says disclosures should have begun almost a year earlier.

The National Association of Realtors, National Association of Home Builders and a raft of other national housing groups have petitioned the court to file amicus curiae briefs in support of an appeal of the decision.

The controversy the result of a ruling by the U.S. District Court for the Northern District of New York that moves back the date of mandatory lead-based paint disclosures from September and December of 1996 to October 28, 1995, the date that Congress established the disclosures should be given.

The more liberal, late-1996 dates were targets set by HUD and the Environmental Protection Agency to give themselves time to develop the disclosure rules and publish them throughout the real estate industry before taking effect.

At issue, however, is which date real estate agents needed to comply with - the deadline set by law (which both HUD and the EPA failed to meet), or the ones set by HUD and the EPA.

The court decision came in Sweet v. Sheehan (Case No. 97-CV-1666, Nov. 5, 1999), which was filed by a New York woman who claimed her son was injured by ingesting lead-based paint that was later found on the walls of their apartment.

The woman and child moved into the apartment on Dec. 1, 1995 and moved out at the end of October 1996. She contends the property owner "failed to disclose the presence of any known lead-based paint or any known lead-based paint hazards in the residential housing and failed to provide any available lead hazard evaluation reports" as required by Title X, passed by Congress.

The lawsuit also named as defendants eight lead-based paint manufacturers and the Lead Industry Association.

The property owner and LIA argued that no such disclosures were required.

The defendants noted that although Congress set the October 1995 deadline, the law mandated that HUD and EPA prepare and circulate disclosure rules so that they industry would have time to comply.

On March 6, 1996, HUD and EPA dates for disclosure, establishing September 1996 as the date for mulit-family dwellings containing more than four dwellings, and December 1996 for dwellings containing one-to-three family units.

Although it sounds as if the courts are changing the rules after the fact, it is not the first time the government has told the housing industry one thing and then enforced another.

Home builders around the country are facing lawsuits from disabled groups that allege they failed to building apartments in compliance with a law passed in 1988. In fact, HUD did not come up with construction guidelines until 1995.

Builders who waited until the guidelines were published now are being targeted for not complying sooner.

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Published: February 22, 2000

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