Liability for Unapproved Abatement Work

While there is no uniform prohibition on improper restoration, remodeling and efforts to remove lead, most states have enacted provisions which could make any contractor who increases the lead hazard in a home, worse. Illinois, for example, has a detailed statute which requires any work which disturbs or destroys a surface covered by lead-based paint, to be done by "licensed lead abatement workers." Since only a very small percentage of contractors would have the training to become "licensed lead abatement workers", a strong argument for liability can be made against any other contractor who did restoration or remodeling of a home, without taking approved steps to eliminate lead hazards.

What is one of the most serious aspects to lead hazards, is that many self help efforts to eliminate lead paint, will make the hazard worse. Take for example, this case study:

A historic building that was rundown through years of only partial occupancy, is saved from the wrecking ball, because the area in which it is located has substantially increasing property values. It is placed on the market for sale by a real estate broker, and bought by a yuppie couple who decide to occupy the upper floor and lease out the balance of the building. No lead disclosure form was filled out by the seller or the real estate broker.

Attracted to loft residential styles, the new owners decide to tear out many interior walls, remove all of the plaster covering the interior brick walls, and save all of the original woodwork. While the property at one time had a hot water heat system, the boiler is antiquated and scary looking, so they elect to put in a forced air heat system, with air conditioning.

They hire contractors to do all of the demolition work, rewire, drywall and repaint those parts of the interior they find most quaint. When all of the work is done, the place is a beautifully restored, classic looking, loft type structure. No peeling or damage paint is apparent. Yet, the very process of demolition and restoration of surfaces covered with lead based paint, has released into the buildings air supply, substantial lead dust. When the new forced air heat/air conditioning system is installed, this system continuously circulates this dust. While the adults may not be significantly impaired by this lead exposure, their child's BLL escalates and permanent damage occurs.

No one even pays attention to the incoming water pipes, which are lead.

Who is responsible?

Contractors. A strong argument can be made against the contractors, including the plumbers. The law subscribes detailed procedures for dealing with lead-based paint, and they are deemed to know what hazards their work creates. While the plumbers don't increase the hazard, they may be found to have the duty to warn of the risk of lead pipes.

Real Estate Brokers and Closing Agents. If the purchase occurred after December of 1996, the real estate brokers and other real estate professionals involved in the sale, could be found liable under the Federal Disclosure law.

Sellers. The prior owners of this property would have the same liability exposure as the real estate brokers.

The New Owners. The concern here is not the new owners liability to their child, but to the children of other tenants.

Click here for the Illinois rules on lead abatment activities.

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