LANDLORDS NEED TO BE AWARE OF LEAD BASED PAINT

Owners of residential rental property are required to inspect the property for lead-based paint.  Many people are aware that upon a sale of such property, a special disclosure form must be completed to make disclosures and acknowledgments about lead based paint in the property. 

However, in 1999, the Wisconsin Supreme Court held in a case¹ that landlords and owners of rental properties have a duty to inspect their properties for lead-based paint, and can be held liable to tenants who can prove they were injured by the landlord’s failure to do so.  In other words, even if you didn’t know your property contained lead-based paint, you can now be found liable.

What the Court Said

The case was originally brought on behalf of a three year old child who was diagnosed with lead poisoning.  The child contended in the case that this poisoning was caused by lead paint peelings, flakes, and chips that he had ingested in various apartments in the City of Racine.  He sued the landlords for negligence and various other claims.

The landlords (and their insurance companies), citing the majority rule in other cases around the country, argued that they should not have known of the presence of lead paint, and therefore did not have any duty to test for lead paint.

The Court rejected that argument -- basically saying that times have changed:  people (and landlords) are more aware today of the dangers of lead paint than when previous case law was followed.  Consequently, the court concluded that because the danger was foreseeable, the common law duty of care arose.

What it Means

In this context, that means that whenever a landlord of residential property built before 1978 (when lead paint was banned) either knows or should know that there is peeling or chipping paint on the rental property, the landlord has a duty to test for lead paint.

¹Antwaun A. v. Heritage Mutual Insurance, 228 Wis. 2d 44, 596 N.W. 2d 456 (Ct. App. 1999)