Ask any parent what they hope for their children and they’ll probably say something like: “I just want them to be happy and healthy.” That’s why renters who are expecting or have young children go to great lengths to find housing that provides a safe environment for their children—from units in good condition to units in safe neighborhoods or with great schools.
Niki Hernandez-Adams and her husband Joshua Mendez are two such parents. Six-months pregnant at the time, they were elated to find a newly-renovated Brooklyn apartment. “We were very happy and we loved [the] apartment,” Joshua says. “We liked the layout. We liked the location.” The fact that the apartment had a backyard and garden was an added bonus—their two dogs would love the outdoor space. Just days after seeing the apartment, the expectant parents signed a one-year lease.
The realtor who showed Niki and Joshua the apartment gave them the requisite Lead Paint Disclosure required by law, in which the landlord had signed off saying he had no notice of lead-based paint in the apartment unit. Paperwork out of the way, the couple was ready to move into their new apartment and get settled before the baby’s arrival.
Aside from the usual adjustments expected during the first year of parenthood, life for Niki and Joshua was good. By all indications, Baby Mendez was happy and healthy—just what parents hope for.
During his one-year checkup, doctors revealed that the infant had elevated levels of lead paint in his blood. Clinical observations would later indicate that Baby Mendez also showed symptoms of ADHD: “He is displaying significant behavior issues, including hitting, biting and pushing others and frequent temper tantrums,” doctors noted.
Panicked, the parents had their newly-renovated apartment tested for lead paint, which turned up a staggering 23 lead-paint based violations. Lead paint was all around them: walls, doors, ceilings, closets and windows all tested positive. The apartment’s hallways, foyer, living room, kitchen and bedroom all turned out to have lead paint.
In short order, Niki and Joshua broke their lease and moved out of their apartment. When the landlord went to inspect the unit after the lead paint allegations, he found many of the walls and moldings within the apartment were scratched and damaged, and that paint in those areas was in poor condition.
How could that be? How could there possibly be so much damage to a unit that was in pristine condition just months before? Turns out that Niki and Joshua’s dogs didn’t just have fun running around in the backyard—they had a field day inside, too!
That didn’t stop the parents from suing the landlord, claiming he should have known about the lead paint hazard given the age of the apartment. In New York, any landlord that has either “actual” or “constructive notice” of lead paint can indeed be held liable. In this case, the landlord already signed paperwork indicating he had no actual notice. So what constitutes constructive notice?
According to New York law, constructive notice is when a tenant can prove the landlord:
- Retained a right of entry to the premises and assumed a duty to make repairs;
- Knew that the apartment was constructed at a time before lead-based interior paint was banned;
- Was aware that the paint was peeling on the premises;
- Knew of the hazards of lead-based paint to young children; and
- Knew that a young child lived in the apartment.
Niki and Joshua’s landlord indeed met standards 1, 2, 4 and 5. Proving that their landlord was aware of peeling paint turned out to be trickier.
The court ultimately denied the parents’ negligence claim, finding that the gut-renovation of their apartment had been sufficient to fully encapsulate any lead paint that was present. It was only through the actions of the couple’s dogs that disturbed that encapsulation, which caused lead-based dust to cover surfaces throughout the apartment.
It is important for landlords to take the threat of lead paint exposure seriously. In this case a renovation saved the landlord from liability, but courts can be fickle. The decision easily could have gone another way if the court wanted to be overly protective of tenants.
Owners and property managers should protect themselves by following lead paint regulations closely. Always be sure to give prospective tenants the proper lead paint disclosures. If you are thinking of renting to a family with a child under six years old, go one step further by encapsulating chipped or peeling paint to limit the risk of health hazards in the future.Read more on Legal Considerations
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