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Michael Phelan
Michael Phelan
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R.I. Supreme Court Upholds Lead Hazard Mitigation Act

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On Tuesday, Rhode Island’s Supreme Court upheld the constitutionality of The Lead Hazard Mitigation Act (LHMA) which went into effect in 2005. The purpose of the LHMA is to reduce the hazards of deteriorating lead based paint to humans. Lead is a neurotoxin which can cause severe brain damage. Toddlers are particularly susceptible because they tend to put everything in their mouths and because their brains are continuing to develop until they are approximately seven years of age. Introducing a potent neurotoxin into the developing brain can cause irreversible brain damage. Thus, the Rhode Island legislature is to be congratulated for passing the LHMA.

The duties the LHMA imposes on owners of rental properties built before 1978 are as follows:
1. owners must attend a lead awareness seminar
2. owners must evaluate their properties for lead hazards (i.e., testing)
3. owners must correct lead hazards by meeting mandated mitigation standards
4. correction of lead hazards must occur within 30 days of notice
5. tenants must be informed of all lead hazards.

By contrast, the Virginia General Assembly’s approach to lead hazards has been to bend over backwards to protect owners, landlords, and property managers from lawsuits on behalf of brain damaged children. In 2000, the Virginia General Assembly enacted a statute granting immunity from civil lawsuit to owners and agents who simply hand out form disclosure statements, which often state no more than the building was constructed prior to 1978 and the owner is not aware whether the premises contains lead paint. The incentive is for the owner to stick his or her head in the sand. Even though sophisticated owners know that a house built in the early 1900’s has lead paint, Virginia law encourages such owner not to test the premises to find out. By the way, Virginia’s immunity statute was introduced by then Delegate Thelma Drake, an owner/manager of rental properties. Ms. Drake is now a member of the United States Congress. Unfortunately, poor children have no lobbyists to compete with the influence of the lobbyists for the realtors and property managers. Let’s hope that Virginia one day follows Rhode Island’s lead and does the right thing. I’m not holding my breath.