Only a disclosure requirement "must" disclose the following:
- Prior test results;
- First-hand information;
- Lead-based paint hazards OR lead-based paint present on the property.
"Known" means actual knowledge, not "should have" or "could have" known. Distinguish between lead-based paint and a lead hazard.
AS REALTORS®, YOU HAVE TO ENSURE THAT THE SELLER OR LESSOR SATISFIES THE DISCLOSURE OBLIGATIONS.
- Notify the seller of his obligations;
- AND to ensure the seller satisfies these obligations and duty.
The only persons/REALTORS® who are exempt are those who receive all compensation from the purchaser.
5 things you must do or remember:
- Disclose the presence of lead-based paint/lead-based paint hazards.
- Provide purchasers/leases with copies of any available records or reports pertaining to the presence of lead-based paint/paint hazards.
- Provide purchasers and lessees with a federally approved pamphlet
- Provide purchasers with a period of up to 10 days (or a mutually agreed shorter or longer period) prior to becoming obligated under the purchase agreement. During this time, the purchaser may (note: no requirement) conduct a risk assessment or inspection for the presence of lead-based paint or hazards. The purchaser may agree to waive this testing opportunity (written, fully disclosed/… informed consent waiver signed for the file).
- Sales and lease contract MUST include certain specified disclosure and acknowledgement language. Note: There is NO specified contingency language clause which must be included. You may develop your own.
Note: the federal regulation only apply to "targeted" housing built prior to 1978. Iowa does not yet distinguish for only these types of housing.
Exempted housing includes:
- Landlords of Iowa provision. If rental property is found to be lead free by a certified inspector, requirements are waived.
- Lease for 100 days or less (summer rental property).
- Must disclose to renter at least once - i.e., the next time renewal is up.
- Mortgage purchase, sale or servicing.
- Efficiency apartments, zero-bedroom housing.
- Elderly housing where children under age 6 not expected to reside.
Rental housing "records" must include ALL records, including common areas, or as a property as a whole.
Tip: Get a copy and make copies of any "Certified Lead Free" report.
Disclosures MUST occur prior to the seller's acceptance of the purchaser's written offer to purchase. If the potential purchaser makes an offer before the required disclosures are done, the seller may NOT accept the OFFER until:
- All disclosure activities are completed; and
- The potential purchaser has had the opportunity to review the information and consider whether to amend his offer.
- Technically, only the actual purchaser is required to disclose the lead information. It may be best, however, to tell all other potential cooperating agents.
Note: The purchaser may elect to have their own tester inspect the property, even if the other testing results have been provided. A renter is not given a 10-day option, they are only allowed to review the information and lease before signing.
What happens if lead is found?
Possible typical contingency language in contracts MAY include (what happens if lead is found – or even if not found):
- Right to cancel the contract if test results show "unacceptable" amount of lead-based paint.
- The seller with the right to elect to remove the lead and correct the hazards, and if so, the purchaser will be bound by the contract.
- Start and end of the testing time.
- Options if lead-based paint is found.
- Disposition of earnest money.
- The purchaser's right to waive testing.
Iowa Association of REALTORS® has revised forms which meet the requirements available.
Such things as acknowledgements, certification of accuracy, disclosure obligations checklist, information pamphlet disclosure statements.
Note: You, as REALTORS® must keep the copy of the disclosure statement for three years.
- Civil penalties up to $10,000 for each violation.
- Habitual violators, knowingly and willfully violate the law – $10,000 plus one year in jail.
- State may assess penalties.
- Treble (three times the money) for damages and injuries sustained by the purchaser/lessee.
- Include both medical costs and the cost for correcting the hazards.
- No liability attaches for failure to provide information withheld by the seller, again, must have KNOWLEDGE.
The Iowa legislation has three (3) sections:
- Establishes inspection and certification within Dept. of Public Health.
- May be both an "inspector" and "abater," provided there is disclosure and do work at the same residence.
- Health has established a mandatory program for painters/remodelers.
- Encourage property managers to learn more.
- Can't do work unless trained.
- May adopt rules/procedures/penalties for the above items.
- May create "voluntary guidelines," no mandatory standards. Local governments may create or develop, but the state must help.
Effective date for owners of one to four dwellings - December 6, 1996
Effective date for owners of more than four dwellings - September 6, 1996
The Iowa Dept. of Public Health now has a lead poisoning hotline established to discuss various lead-based paint hazards. They also give out the required pamphlets for free.
Iowa Department of Public Health: 1-800-972-2026