Get the lead out! Clock is ticking for compliance with stricter New York City lead laws



October 14, 2020

Affordable Housing Alert

Author(s): Brian P. Donnelly, Richard Michael Price

The clock is now ticking for New York City landlords to comply with many of the new lead laws the New York City Council has passed over the past two years. Some new measures began taking effect last summer, and others passed earlier this year began taking effect in August. With significant changes to prior laws and potentially steep penalties for noncompliance, landlords should take a careful look at their existing compliance measures and make changes necessary to comply with the new requirements.

Lower lead allowances

Among the most consequential changes are significant decreases to the lead-content thresholds that trigger various inspection and remediation requirements. Under existing laws, many landlords must annually inspect living units for the presence of any “lead-based paint” that is peeling or on surfaces that are chewable, deteriorated, or otherwise prone to human exposure. The presence of any such condition, or the presence of any “lead-contaminated dust” in a living unit, triggers an obligation to quickly remediate the hazardous condition. The lead-content thresholds that trigger that obligation decreased in some respects beginning last summer, and decreased in other respects this summer with further decreases set to take effect next summer.

Starting this summer, a living unit is considered to contain “lead-based paint” with just half as much lead content as under the previous law—down from 1.0 to 0.5 milligrams per square centimeter. Starting last summer, the lead-content threshold for “lead-contaminated dust” decreased substantially, to 10 micrograms per square foot on floors, 50 micrograms per square foot on window sills, and 100 micrograms per square foot on window wells. Those thresholds will decrease even further starting June 1, 2021—to five micrograms per square foot on floors, 40 micrograms per square foot on window sills, and 100 micrograms per square foot on window wells.

Other changes affecting landlords

The new laws mean several other changes for landlords. Starting August 9, 2020, inspections for the presence of lead-based paint must include the use of an x-ray fluorescence (“XRF”) analyzer. All units in which a child under age six resides in buildings covered by the laws must undergo an XRF inspection by August 9, 2021, or within a year of when a child under age six first comes to reside in the unit if the child first comes to reside there after August 9, 2020. All other units must undergo an XRF inspection by August 9, 2025. Under laws that took effect last summer, a child under age six “resides” in a unit if they are “routinely present for 10 or more hours per week” in the unit.

Landlords are also now required to retain records of all lead-based paint notices provided to tenants—not just records of lead remediation work, as previously required—for at least 10 years. The new laws require the New York City Department of Health and Mental Hygiene to audit the records of at least 200 apartment buildings per year. Particularly susceptible to audit selection are buildings with peeling lead-based paint violations or violations for other indicators of deterioration, such as mold and leaks.

The new laws also provide for an increased focus on landlords who fail to address the presence of lead paint when turning over units. Starting February 10, 2021, the New York City Department of Housing Preservation and Development, when inspecting dwelling units, will be required to issue violations where a landlord has failed to remove or abate lead-based paint in a unit that has been turned over since August 2, 2004.

Also starting February 10, 2021, the lead paint laws will apply to any owner of a private dwelling where at least one unit is occupied by someone other than the owner or a member of the owner’s family. Most of the laws will not apply, however, to those units that are occupied by the owner or a member of the owner’s family.

Landlords face potentially steep fines for violations. A good plan now can prevent potentially business-altering penalties in the future.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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