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[Link to CIM-0105 (Index
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[Link to CIM-0110 (Index
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[Link to GHM-0045 (Index
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[Link to GHM-0051 (Index
3.600)](http://www.hud.gov/offices/adm/hudclips/lops/GHM-0051LOPS.doc)

Lead-Based Paint Requirements

Legal Opinion: GHM-0049

Index: 3.600, 3.605

Subject: Lead-Based Paint Requirements

November 18, 1992

MEMORANDUM FOR: Frank M. Malone, Director, Office of

Preservation and Property Disposition

Division, HMP

/s/ David R. Cooper for

THROUGH: John J. Daly, Associate General Counsel, Insured

Housing and Finance, GH

FROM: David R. Cooper, Assistant General Counsel, Multifamily

Mortgage Division, GHM

SUBJECT: Lead-Based Paint Rider on the Model Contracts of Sale

(GHM: L-1262)

The purpose of this memorandum is to notify your office that

we are changing the instructions to Regional Counsel regarding

the use of the Rider to the Model Contracts of Sale entitled

\"Lead-Based Paint Hazards.\"

Currently, the Rider contains two paragraphs: one which

requires the purchaser to inspect, test and abate any lead-based

paint hazards; and another which requires the purchaser to abate

any hazards found by HUD when it tested. The instructions to

Regional Counsel in the September 21, 1992 memorandum delegating

authority to Regional Counsel to prepare Contracts of Sale for

the disposition of HUD-owned multifamily projects provided:

\"In order to assure compliance with the Lead-Based

Paint Poisoning Prevention Act (42 USC 4821-4886) and

the regulations thereunder (24 CFR Part 35, Subpart E

and 200.825), the Rider entitled \"Lead-Based Paint

Hazards\" should be included when the Disposition

Authorization so requires. The Rider contains two

paragraphs labeled \`(1)\'. The first paragraph should

be used when HUD requires the purchaser to inspect,

test and abate any hazards. The second paragraph

should be used when HUD has inspected and tested but

requires the purchaser to abate any hazards.\"

We included the first paragraph to conform to Housing\'s

practice with regard to sales involving structures that must be

tested for lead-based paint hazards. The practice allows HUD to

require a purchaser to inspect and test for lead-based paint

hazards if HUD does not have time to inspect and test prior to

the sale. It is our understanding that Housing believes that

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this practice is consistent with the policies in Chapter 11,

Section 11-2 of the Handbook 4315.1 REV-1, Multifamily Property

Disposition - Management. It is also our understanding that

Housing believes the words \"HUD shall cause\" in Sections

200.825(b) and (c) permit Housing to pass on to purchasers the

requirement to inspect and test, respectively. A pending

property disposition has caused us to reconsider the validity of

this practice. The purchaser of Buckingham/Yorkleigh, St. Louis,

Missouri, challenged HUD\'s authority to require the purchaser to

inspect and test for lead-based paint hazards. It is our opinion

that under the applicable lead-based paint regulations and the

above handbook provisions that HUD must inspect, test and abate

any hazards, but can require the purchaser to complete abatement

of any hazards if HUD does not have time to complete the

abatement.

The regulations make clear that HUD must inspect and test

before offering the property for sale in the case of defective

paint surfaces, or as part of the sale process in the case of

chewable surfaces. Section 200.825(b) provides:

\"HUD shall cause the property to be inspected for

defective paint surfaces before offering the property

for sale. . . . If defective paint surfaces are found,

treatment as required by 24 CFR 35.24(b)(2)(ii) shall

be completed before delivery of the property to the

purchaser or, if the disposition program under 24 CFR

P art 290 provides for repairs to be completed by the

purchaser, such treatment may be included in the

required reports.\" (Emphasis added.)

Section 200.825(c) provides:

\"HUD shall cause a random sampling of dwelling units to

be tested for lead-based paint on chewable surfaces as

part of the sales contracting procedure. . . .

Treatment shall be completed before delivery of the

property to the purchaser, or, if the disposition

program under 24 CFR P art 290 provides for repairs to

be performed by the purchaser, such treatment may be

included in the required repairs.\" (Emphasis added.)

The language in Section 200.825(b) \"HUD shall cause the

property to be inspected . . . before offering the property for

sale. . .\" (emphasis added) puts the burden on HUD, either

directly or through hiring an inspector, to inspect the units.

HUD cannot pass the burden to a purchaser to inspect. Section

200.825(c) provides that \"HUD shall cause a random sampling of

dwelling units to be tested . . . as part of the sales

contracting procedure . . . .\" If lead-based paint chewable

surfaces are found, the regulations provide that \"Treatment shall

be completed before delivery of the property to the

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purchaser . . . .\" (Emphasis added.) Notwithstanding that both

cited regulations state, \"if the disposition program under 24 CFR

Part 290 provides for repairs to be performed by the purchaser,

such treatment may be included in the repairs,\" when one reads

Section 200.825(b) coupled with the first part of the second

sentence of Section 200.825(c), both of which contain the word

\"before\", it leads one to the conclusion that HUD must, either

directly or through an inspector, test the dwelling units prior

to transfer to the purchaser. HUD cannot pass the testing

requirement on to a purchaser. However under both quoted

sections, HUD may require the purchaser to abate any found

hazards if the disposition program under 24 CFR Part 290 provides

for repairs to be performed by the purchaser. This is the only

responsibility HUD may pass on to a purchaser.

We consulted Grant E. Mitchell, Administrative Law Division,

the Division responsible for drafting the lead-based paint

regulations, and he confirmed that it was their position that HUD

is required to inspect and test for any lead-based paint hazards

and can only require a purchaser to abate any found hazards.

Mr. Mitchell commented that it was the intent of the drafters of

the regulations that HUD, either directly or by hiring an

inspector, was ultimately responsible for the inspection and

testing. Mr. Mitchell stated that it was unlikely that there

would be support for amending the regulations to allow HUD to

require purchasers to inspect and test.

The explanation of HUD\'s responsibility in the handbook

regarding lead-based paint is confusing. The instructions in

chapter 11, section 11-2, paragraph E, discussing inspection,

testing and abatement of lead-based paint hazards, require HUD to

inspect, test and abate, but if HUD does not have time prior to

sale, the purchaser can be required to inspect, test and abate.

However, in subparagraph E.2. the instructions make clear that

HUD, as MIP or owner, has the responsibility to inspect, test and

abate any found hazards, but if HUD is unable to complete the

abatement, HUD may require the purchaser to abate the lead-based

paint hazards. The instructions in subparagraph E.2. are

consistent with the regulations.

Therefore, it is our opinion that HUD may not pass on the

responsibility to inspect and test for lead-based paint hazards

to the purchaser. However, HUD, under the regulations and as

further clarified by the handbook instructions, may require a

purchaser to abate, if HUD does not have time to do it, any lead-

based paint hazards found by HUD during an inspection or test.

Consequently, our office will be sending a supplemental

memorandum to Regional Counsel instructing them to delete the

first paragraph of the \"Lead-Based Paint Hazards\" Rider to the

Model Contracts of Sale, and to use only the second paragraph

when the purchaser will be required to abate any lead-based paint

hazards. Your office will need to instruct the Regions that HUD

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is responsible for inspecting and testing for lead-based paint

hazards and that the inspections and tests must be completed

prior to the sale. Additionally, your office will need to amend

the handbook to make clear that HUD has the responsibility to

inspect and test for lead-based paint hazards, and that HUD may

only require a purchaser to abate lead-based paint hazards that

HUD has not had time to abate.

If you have any questions, please contact Gayle E. Bohling

at 708-4107.