KNOW YOUR RIGHTS: MASSACHUSETTS LEAD PAINT LAW
This is the third post in our series on Massachusetts housing law. Read our first post on your rights in relation to poor conditions and our second post on what to do when you have a noisy neighbor and your right to quiet enjoyment.
Are you looking to rent an apartment with children under six years of age? Do you currently live in an apartment with children under six years of age and do not know the apartment’s lead paint status?
If so, you have rights under the Massachusetts lead paint law and fair housing laws. In essence, the lead paint law requires landlords to remove lead paint hazards when a child under six lives/is looking at an apartment.
Clear violations of the Massachusetts lead paint law can occur when a landlord tells a family with children under six years of age that they cannot live in the apartment because it is not deleaded. It is also a violation for a landlord to advertise with discriminatory intent, meaning that landlords may not advertise with notices like “Apartment not deleaded,” “No families,” or “Apartment does not meet lead paint requirements.”
Moreover, just because an apartment has not been deleaded, this does not mean that your family cannot live there. The Massachusetts lead paint law addresses this issue by requiring landlords to delead their apartments at no cost to the tenant. Therefore, if a landlord tells you that you cannot rent an apartment because it has lead or has not been deleaded, you have the right to require the landlord to delead the apartment at no cost to you.
Additionally, a landlord is responsible for the damages associated with a lead poisoned child.
In addition to a landlord not being allowed to turn you away due to the apartment containing lead paint, the landlord also may not agree to lower the cost of rent in return for your acceptance of the lead paint.
WHAT ARE THE DANGERS OF LEAD PAINT & WHY DOES IT MATTER?
The negative impacts of lead exposure on children are both well known and well established. Impacts such as an increased risk for brain and nervous system damage, slowed growth and development, hearing and speech problems, and learning and behavior issues, such as ADHD, juvenile delinquency, and criminal behavior,[1] underscore the importance of the lead paint law. [2] Furthermore, the lead law is especially important in Massachusetts due to the relatively high percentage of homes built before 1978, which is when lead was banned from household paint.[3] However, although this law protects children from lead paint, a drawback is that it also incentivizes landlords not to rent to families with children under six in order to avoid the associated costs of lead abatement, which is not allowed.[4]
Because the negative impacts of lead paint exposure are well established, it is next important to look at where the lead exposure is concentrated. Since lead poisoning is such a prominent public health issue, children in Massachusetts must get blood lead level tests between nine and twelve months and at ages two and three, and the state collects results on all children under age six.[5] While Boston does not have the highest incidence of elevated blood lead levels – Warren, in the middle of the state, has the highest with 7.12% of children under six found to have elevated blood lead levels whereas Boston has 2.82% – certain poorer parts of the city have higher levels than the city as a whole, such as North Dorchester at 6%.[6] Further, the pockets of the city with the highest levels are also some of the poorest and have higher relative concentrations of non-white/Hispanic residents.[7] This is true even though the distribution of pre-1978 housing units is fairly evenly spread across Boston neighborhoods.[8]
WHAT LAWS RELATE TO LEAD PAINT?
The most specifically relevant law is the Massachusetts Lead Paint Law, which prohibits owners, brokers, and other actors from refusing to sell, rent, or lease property that contains lead paint and that would consequently trigger the abatement requirements of the law.[9] In addition, both the Fair Housing Act and the Massachusetts Fair Housing Laws prohibit familial status discrimination.[10] For instance, M.G.L. ch. 151(b) § 4(11), in part, makes it unlawful for an owner or realtor to deny to or withhold accommodations from any person because such person has or will have a child who will occupy the premise.[11]
To establish a prima facie case under the FHA and M.G.L. ch. 151B, § 4, the complainant must show that (1) he or she is a member of a protected class, here familial status; (2) the housing was available for rent; (3) he or she was objectively qualified to rent the housing; and (4) he or she was deterred from renting or refused tenancy because of the protected class status.[12]
[1] See Childhood Lead Poisoning Data, Statistics, and Surveillance, CDC, https://www.cdc.gov/nceh/Lead/data/index.htm (last visited Mar. 29, 2017). Moreover, the impacts are not only felt during the actual childhood lead exposure but can reduce a person’s IQ and socioeconomic status as an adult. See Aaron Reuben et al., Association of Childhood Blood Lead Levels With Cognitive Function and Socioeconomic Status at Age 38 Years and With IQ Change and Socioeconomic Mobility Between Childhood and Adulthood, 317 JAMA 1244 (2017).
[2] Mass. Gen. Laws ch. 111, § 199(a) (2012).
[3] See e.g., Lead Paint and Discrimination, Massachusetts Attorney General Maura Healey, http://www.mass.gov/ago/consumer-resources/your-rights/civil-rights/housing/lead-paint-and-discrimination.html (last visited Apr. 14, 2017).
[4] William Berman et al., Lingering Lead: Strategies for eliminating familial status discrimination due to lead paint, Dec. 2013, at 2-3, available at: http://www.suffolk.edu/documents/Law%20Documents/LingeringLead.pdf.
[5] See Matt Rocheleau, Low-income, minority areas seen as lead poisoning hot spots, Boston Globe, Apr. 11, 2016, https://www.bostonglobe.com/metro/2016/04/11/low-income-minority-areas-seen-lead-poisoning-hot-spots/ZJAJSL1whhEKtL8KcSM0nN/story.html.
[6] See id. (interactive map graphic shows rates per municipality in Massachusetts); see also Robert Knorr, Preventing Childhood Lead Poisoning in Massachusetts, Massachusetts Department of Public Health, slide 7, available at goo.gl/IJXwvj; see generally Rae Ellen Bichell, Childhood Exposure To Lead Can Blunt IQ For Decades, Study Suggests, NPR, Mar. 28, 2017, https://goo.gl/U8FT7S (children residing in low-income areas more at risk for lead poisoning).
[7] See Knorr, supra note 6, slide 7, 9-13, 18-19; see also Erin Schumaker & Alissa Scheller, Lead Poisoning is Still a Public Health Crisis for African-Americans, Huffington Post, Feb. 27, 2017, http://www.huffingtonpost.com/2015/07/13/black-children-at-risk-for-lead-poisoning-_n_7672920.html (incidence of lead poisoning higher in the African American population).
[8] See Knorr, supra note 6, slide 14.
[9] Mass. Gen. Laws ch. 111, § 199(a) (2012); see Mass. Gen. Laws ch. 111, § 197 (detailing the abatement measures that must be taken by the owner “[w]henever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead”).
[10] 42 U.S.C. 3602(k) (definition of “familial status); 42 U.S.C. 3604; Mass. Gen. Laws ch. 151(b), § 4(11) (uses “children” instead of “familial status” in definition).
[11] Mass. Gen. Laws ch. 151(b) § 4(11).
[12] Derusha v. Fed. Sq. Properties & Pacific Land, LLC, Docket No. 08-SPR-01116 at 4.