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The following article was published in our article directory on August 20, 2012.
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Maryland Court's Decision to Revoke Limited Liability Protection Under MDE Lead Based Paint Regulations Could Threa...

Article Category: Real Estate

Author Name: Michael Spangler

"On Oct. 24, Maryland's highest court, the MD Court of Appeals, ruled in Zi'Tashia Jackson v. The Dackman Company (No. 131, September Term 2008) that provisions in Maryland's Reduction of Lead Risk in Housing Act (the Act) which granted owners of certain rental properties immunity from personal injury law suits, under specified conditions, are invalid because they violate the Maryland Constitution." (Apartment and Office Building Association of Metropolitan Washington. 2011, October 28)

Maryland's lead based paint regulations are a model of success for the rest of the country, and have been at the vanguard of the effort to make lead poisoning a thing of the past. Unfortunately, this recent verdict threatens to throw the system out of balance.

Involvement in the MDE lead paint program is mandated for buildings constructed before 1950, but for buildings constructed prior to 1978, involvement is not required. The decision to throw out limited liability protection removes one of the most critical incentives for pre-1978 property owners to comply with the rigorous procedures for compliance with MDE lead paint laws.

In order to qualify for the limited liability protection that existed before this decision, property owners needed to take extraordinary steps to use lead safe practices in every area of their renovations. To be regarded as compliant, and subsequently eligible for limited liability, they had to verify that every renovator they utilize was properly certified and accredited, and have documentation for every single worker, on any given day of the project.

Property owners who went through all the steps mandatory to qualify for this risk protection were responsible and law-abiding. These are landlords who were taking all of the mandatory steps to give protection to their tenants from toxic lead paint. This decision punishes those compliant and law-abiding property owners with pre-1978 buildings, who decided to opt in to the MDE program, and spent the money necessary to qualify.

"This decision affects the property owners who are compliant, and it's part of a disturbing trend we've noticed since we began doing lead paint renovations in' 98," said Free-Spirited Contractor's Owner, Michael Spangler, "the state can be very slow to prosecute the blatantly non-compliant property owner. You have the unfrequent exception of a case like Cephus Murrell, who was gone after for years and in the end became the first and only landlord to ever be incarcerated for lead paint abuses. To prosecute a landlord who is blatantly defiant is exceedingly expensive for the state, and there's probably no restitution out there for the victim or their family.

"Compliant and responsible property owners, however, will pay for the costs obligatory to stay involved in the MDE program. They're the people who make the program work, because they opt in if they have a pre-1978 property, and they take all of the steps to be compliant with Maryland's regulations, and Maryland has some of the strictest lead paint laws in the country. This already boosts their expenses, which requires them to boost their rent, which reduces their occupancy and puts the lead safe housing they manage out of reach for many low income families.

"With this judgment, they don't even have the benefit of limited liability protection, which sets their costs even higher. Many property owners with pre-1978 properties will opt out of the over-all program without limited liability protection, because it won't make any sense for them monetarily."

The Baltimore Sun published an article October 27th about this decision, which we posted from Twitter: @ FSCLeadServices. The Sun asserts that the following step should be further adjustment, perhaps an arrangement to bring back limited liability protection in exchange for making enrollment in MDE's lead program required for properties built between 1950 and 1978.

" ... property owners will surely come to Annapolis in January to beg the General Assembly for relief. Lawmakers and lead paint advocates should hear them out and look for an opportunity to make a deal. In 1994, both they and the landlords, who were then facing mounting legal bills, needed a law, so they were forced to agree to compromises. Now the advocates are in a strong bargaining position.

Legislators should be willing to consider some reasonable limits on liability, but they should demand further concessions in return. For example, the thresholds of lead poisoning that are a cause for action in the 1994 law are higher than health officials now say are acceptable. Advocates could push for them to be lowered. The current law only mandates remediation for homes built before 1950, when Baltimore outlawed lead paint. But it was legal elsewhere until 1978. Advocates could push to get units built between those years included in the registration program as well. They could also seek some kind of financing mechanism for more lead paint inspectors" (The Baltimore Sun, 2011, October 27).

We hope that an arrangement, equivalent the middle course counselled by The Sun, is gotten to down the road. The prevailing decision to give no protection to property owners who opt in will drive many away from the MDE program and increase costs for everybody, across the board.

This new resolution penalizes responsible property owners who have utilized strenuous efforts to follow Maryland's strict lead based paint ordinances, and threatens to place the price of lead-safe real estate out of reach for many low-income families. Unless there's a different compromise, this judgment might weaken the way the MDE lead paint program works, leaving poisoning prevention and enforcement fully in the hands of personal injury lawyers.

Free-Spirited Contractor will continue to watch the developments in this case very carefully. Do you think that this was a good decision? Do you think there should be additional compromise?

Keywords: lead paint, lead paint laws, lead paint removal, lead paint remediation, construction, lead paint safety

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