NYC Lead Law Presentation

Who This Applies To

• Lead-based paint was banned in NYC in 1960 but older buildings may still contain it. Property owners of these buildings are responsible for keeping tenants safe from lead-based paint hazards
• NYC Lead-Based Paint Laws cover buildings erected prior to 1960 and dwellings erected from 1960 to 1978 where the owner has actual knowledge of lead-based paint
• This includes tenant-occupied, one and two unit buildings
• Apartments with children under the age of 6 residing there or using common areas should have been inspected by August 9, 2021. If a family with a child under the age of 6 recently moved into an apartment, lead testing must be completed within 1 year of their move-in date
• “resides” means to routinely spend 10 hours or more per week in the dwelling or common areas
• The law does not apply to apartments in a building where the title is held by a cooperative or condominium and the shareholder of record or their family occupies the apartment. The law does apply to cooperative or condominium units occupied by a tenant or subtenant

Note: This document is not to be considered all inclusive and not considered absolute. Regulations and standards routinely change and the users of this document accept full responsibility to stay abreast of any changes and incorporate them into this presentation as might be appropriate. To ensure proper compliance, users should reference HPD's Site, appropriate HPD provided reference documents and all federal laws.

NYC Lead-Based Paint Laws

• New York City has made several important updates to the NYC Childhood Lead Poisoning Prevention Act (Local Law 1 of 2004), strengthening existing lead laws and expanding inspection requirements for landlords and building owners.
• All residential building owners in NYC must have all dwelling units inspected for lead paint by August 9, 2025. These new lead paint rules also apply to smaller landlords and vacation rental owners, unlike in previous years. Per Local Law 29 of 2020, the definition of buildings with “multiple dwellings” now includes one and two-family house rentals except the units occupied by the owners' family.
• Apartments with children under the age of 6 residing there or using common areas should have been inspected by August 9, 2021. If a family with a child under the age of 6 recently moved into an apartment, lead testing must be completed within 1 year of their move-in date.
• Per Local Law 66, the new threshold for defining lead-based paint has been lowered from 1.0 mg/cm2 to 0.5 mg/cm2 — starting on December 1, 2021. HPD has confirmed that XRF lead inspections performed prior to December 1st may still use the old 1.0 mg/cm2 threshold and will NOT need to be re-tested for Local Law 31 compliance.
• X-Ray Fluorescence (XRF) analyzer inspections are now required for all surfaces in every rental unit for “multiple dwelling” buildings built prior to 1960 (as well as for buildings built between 1960 and 1978 with known lead-based paint).
• Inspections must be conducted by a third-party, EPA-certified lead inspector or risk assessor, independent of the owner or any firm hired to perform lead-based paint remediation.

Lead-Based Paint Hazards

• Dust from peeling paint
• Peeling or damaged lead paint

Lead Paint Is Commonly Found On:

• Crumbling plaster or rotted wood
• Doors and windows that stick or rub together
• Window sills and other surfaces that have been chewed on by children

Owner Responsibilities

• All residential building owners in NYC must have all dwelling units inspected for lead paint by August 9, 2025 by EPA-certified inspectors utilizing X-Ray Fluorescence (XRF) testing.
  • Apartments with children under the age of 6 who spend more ta 10 hours per week in the unit or common areas should have been inspected by August 9, 2021. If a family with a child under the age of 6 recently moved into an apartment, lead testing must be completed within 1 year of their move-in date.
  • An Affidavit by Certified Individual Who Performed Lead-Based Paint Testing should be completed and kept for 10 years
• Perform proactive activities to confirm that paint is intact including visual inspections for peeling paint. Keep a record of your visual inspections. A link to NYC form SF LLI-03, Annual Visual Inspection for Lead-Based Paint Hazards. Records should be kept for 10 years
• Perform reactive activities to make sure peeling paint and deteriorated surfaces are properly remediated or abated.
  • The requirements for reactive work can depend on whether there is a child under the age of six residing in the unit, the amount of paint that could be disturbed, if work is performed in response to a violation from a city agency, or the type of work being performed.
  • Home improvement contractors must show that they are EPA-certified and follow lead-based safety standards
• Use safe work practices for any construction activities that disturb painted surfaces in a assuming the paint is lead-based paint unless the paint has already been tested. A link to NYC form SF LL1-08, Work that Disturbed Paint – Summary Form. Records should be kept for 10 years

Annual Requirements Part 1

• Between January 1 and January 16, owners of multiple dwelling built before 1960 (or between 1960 and 1978 if the owner has knowledge there is lead-based paint) are required to deliver an Annual Notice to each tenant and to collect the completed notice from the tenant by February 15
  • Protect Your Child From Lead Poisoning and Window Falls Annual Notice (Proteja a su Nino del Envenenamiento por Plomo y de las Caidas por las Ventanas Notificación Anual)
  • Annual Notice For Prevention of Lead-Based Paint Hazards - Inquiry Regarding Child (Aviso Anual Para Medidas de Precaucion con los Peligros de Plomo en la Pintura-Encusta Respecto al Nino)
• The notice must be provided to the tenant in at least English and Spanish and in duplicate (two copies of each) so the tenant can retain a copy and return a copy to the owner. Either notice below can be used
• Keep evidence that this notice was delivered and retain the completed notice received back from the tenant. This notice is important because it determines where the owner must do other required activities required under Local Law 1, such as the annual investigation and follow safe work practices.
• Make sure your tenants know where to return this notice. If the tenant does not return the completed notice by February 15, the owner must conduct follow-up inspections between February 16 and March 1 to attempt to determine if a child under six lives or routinely spends more than 10 hours in the dwelling unit. An owner must keep records of the attempts made to contact the tenant to perform the investigation
• If the owner does not receive the completed notice from the tenant and cannot determine based on these follow-up investigations whether there is a child under six, the owner must also notify DOHMH in writing that no notice has been received back from the tenant (a copy of this notification should also be maintained by the owner). The owner’s notification to DOHMH should be mailed to:

  Department of Health and Mental Hygiene — Healthy Homes
  125 Worth Street, Sixth Floor, CN58
  New York, NY 10013

• HPD has created forms to assist an owner with documentation the notice was sent, received back, or any follow-up inspections done if the notice was not returned by the tenant: see the Sample Forms for Delivery of Annual Notice Compliance

Annual Requirements Part 2

• Once the owner knows which units have a child under the age of six residing in a unit, the owner must perform a visual investigation to look for potential lead-based paint hazards. This investigation must be conducted at least annually or more often if the owner knows about a condition that may cause a lead hazard, or if the occupant makes a complaint about such a condition.
• You do not need to hire a professional to conduct your annual visual investigation. However, HPD highly recommends that whoever conducts this investigation take the online visual assessment training offered by the federal Department of Housing and Urban Development to help the person know what to look for. This investigation is a visual inspection looking for peeling paint, chewable surfaces (such as window sills), deteriorated sub surfaces, friction surfaces (painted doors or windows) and impact surfaces. It must include every surface in every room in the dwelling unit, including the interiors of closets and cabinets. The person conducting the investigation should keep records about what they saw and HPD has created sample forms to assist with this. See the Sample Forms for Annual Investigation Compliance
• After the visual inspection is completed, the owner is required to give a copy of the inspection results to the tenant.
• The owner must also do this visual inspection in any building common areas (such as a lobby, hallway, or stairwell) of the building where a child resides.
• Next, the owner must repair any deteriorated paint promptly. If there is peeling paint found on a surface where the owner has no documentation of the whether there is lead paint on the surface, the owner must presume that there is lead paint, and hire the appropriately certified contractor to complete the repairs safely and quickly or, (if you believe there is no lead in the paint because the wall is a new wall, for example) to test the peeling paint and keep documented evidence that the surface does not have lead. All documents regarding any work done by the appropriate contractors must be maintained. See below for more information about safe work practices.

Apartment Turnover Requirements

When a dwelling unit changes tenants, owners are required under Local Law 1 to complete certain lead-based paint activities focused on making the unit safe for a new tenant and before the new tennt takes occupancy (regardless of whether the new tenant has a child at the time of initial occupancy). This is referred to as "Turnover".

• Remediate all lead-based paint hazards and any such underlying defects, when such underlying defects exist. At a minimum this would mean wet scrape and paint.
• Provide for the removal of lead-based paint on chewable surfaces with evidence of teeth marks or encapsulate the surface with a hard, puncture resistant encapsulant.
• Provide for the removal of all lead-based paint on friction surfaces on all doors and door frames.
• Provide for the removal of all lead-based paint on frictions surfaces on all windows or provide for the installation of replacement window channels or sliders on the friction surfaces.
• Make all bare floors, window sills, and window wells in the dwelling unit smooth and cleanable.
• All the work must be done following the safe work practices described below. Owners must then certify compliance with the turnover requirements on the Lease/Commencement of Occupancy Notice for Prevention of Lead-Based Paint Hazards provided to the new tenant with the lease (and at lease renewal) and provide documentation to the new tenant upon request along with a copy of the Lead Paint Hazards in the Home pamphlet. HPD has created sample forms for an owner to document the turnover inspection was completed: see the Sample Forms for Turnover Vacancy Compliance

5 Year Testing Requirement (Local Law 31)

• Effective August 9, 2020, Local Law 31 of 2020 states that an owner must use an Environmental Protection Agency (EPA) certified inspector or risk assessor, independent of the owner or any firm hired to perform lead-based paint remediation, to test for the presence of lead-based paint in a dwelling unit of a building built prior to 1960.
• The inspection must take place within 5 years of the effective date of the law (by August 9, 2025) or within one year if a child under the age of 6 comes to reside in the unit (whichever is sooner).
• This requirement must also be met if the rental building was built between 1960 and 1978 and the owner has actual knowledge of lead-based paint.
• As of January 1, 2020, the term “reside” now means that a child under six years of age lives in the dwelling unit in a pre-1960 building, OR a child under six years of age routinely spends 10 or more hours per week in such a dwelling unit.
• Sample Affidavit by Certified Individual Who Performed Lead-Based Paint Testing

Safe Work Practices

• The owner must use contractors certified in abatement by the United States Environmental Protection Agency (EPA) and the level of certification increases if the work being done is over 100 square feet, or requires the removal of two or more painted windows, is in response to a violation, or is specifically for abatement. See the EPA's Locate Certified Inspection, Risk, Assessment, and Abatement Firms webpage.
• For work that does not meet these elevated requirements, the owner must hire a contractor firm who is a certified do to renovation (known as Renovation, Repair and Painting or RRP) by the EPA. The EPA website has information about the Renovation, Repair and Painting (RRP) program. After the work in completed, an EPA-certified Lead Inspector or Risk Assessor must take dust samples to confirm the area is free of lead-contaminated dust, below the levels provided in Local Law 1 and HPD’s rules. Owners must retain copies of the firm and worker certificates for the work and the dust samples, the results of the dust samples, and any invoices or documentation of the work done.
• The RRP certification requirement extends to plumbers, electricians, carpentry, etc., if there is any work being done where paint would be disturbed. You can find more details about safe work practices in the HPD Cover Letter and Guide to Local Law 1 of 2004 Work Practices and in a bulletin HPD issued in September 2019
• Failure to follow safe work practice can result in violations being issued by the Department of Buildings (DOB) or DOHMH HPD has created a form to help an owner know when the Local Law 1 requirement for documenting safe work practices applies: see the Sample Form for Safe Work Practices Compliance.

Local Law 1 of 2004 requires that owners follow and retain evidence that safe work practices were used for all repair work in a dwelling unit or building common area where are child under the age of 6 resides when more than 2 square feet of lead-based paint or paint of an unknown lead content is distributed.

Exemptions

• Beginning December 1, 2021, the legal standard to define lead-based paint changed to 0.5 mg/cm
• Existing exemptions will remain active for a unit until such time as the unit is vacated by a tenant (turnover)
• Owners must notify the department when turnover occurs for an exempted unit using the Affidavit of Turnover in an Exempted Unit

  Please return your completed Affidavit of Turnover in an Exempted Unit to:
  NYC Department of Housing Preservation and Development
  94 Old Broadway, 7th Floor
  New York, NY 10027
  ATTN: Lead Exemption Unit

• As of the date of the turnover, the exemption is no longer valid
• You may apply for a new exemption as soon as the unit is tested by an XRF machine with an approved PCS issued at the action level of 0.5 mg/cm², before or after the existing exemption is revoked because of turnover. Note: You cannot use testing performed by an XRF machine testing at the 1.0 mg/cm² action level even if the results of testing are below 0.5 mg/cm² to apply for a new exemption.
• Application for Exemption
  Note: Previous versions of the Application for Exemption and affidavits from before the effective date of December 9, 2019 will no longer be accepted.

Record Keeping & Compliance

The Record Production Order requires property owners to submit the following documentation for their property within 45 days of the request. HPD proactively audits lead-related records to determine a property owner's compliance.

• Copies of records for the Annual Notice distribution and collection
• Copies of records for the completed annual investigations
• Copies of records for work performed to correct open and uncertified lead-based paint hazard violations including documentation of work practices used
• Copies of records for all non-violation work that disturbed lead-based paint or paint of unknown lead content in a dwelling unit where a child under six years of age resides or in the common area of the building, including documentation of the work practices used
• Copies of records for all work performed at turnover of any unit that was the subject of a new tenancy including documentation of work practices used and lead-contaminated dust clearance test results
• Copies of records for completing the testing requirement under Local Law 31 of 2020
• A property owner who does not respond to the Record Production Order will be issued an immediately hazardous Class “C” violation and may be subject to additional violations.
  • Property owners will be liable for a civil penalty of no less than $1,000 and not more than $5,000 for this violation. A property owner is also subject to civil penalties specifically for failure to conduct the annual notification and inspection and for failure to perform required activities upon turnover