What Are Your Federal Lead Disclosure Rights When You Do Not Have a Lease?

A questioner asked: I live in an attractive art deco style building which is located in New York. The building is 6 stories tall and contains a total of 60 apartments. It was built before World War II. I reside in this apartment together with my husband and our children ages 2 ½ and 6 months.

The landlord refused to give us a lease and insists on a month to month tenancy.  We have been tenants in this building for three (3) years.

Recent news and articles have made me concerned that there may be lead based paint in this apartment.

Whenever the doors in the apartment open and close paint fragments and dust can be found on the surrounding floor surfaces. The friction of the door rubbing against the door post appears to be the source of the paint dust and fragments.

My landlord has never told us whether or not lead based paint is present in this building. He has never given us any written disclosure one way or the other. We have also never received any informative pamphlet regarding the potential hazards of lead based paint.

I am very concerned. What are our rights?

ANSWER: Federal law requires that a landlord provide certain lead disclosure to tenants who have leases. This includes a pamphlet explaining the dangers of lead based paint and the manner that a tenant can protect a child from such hazards.

Where a lease is provided to a tenant, a landlord also has to provide written disclosure as to his/her knowledge of the presence of lead based paint in the housing.

(For a more comprehensive analysis of the disclosure requirement required in a case where there is a lease, please see: What Are My Rights When My Landlord Failed to Disclose Lead Paint Hazards as Required by Federal Law?)

Your question raises the issue as to whether there is parity in protections for month to month tenancies which by their nature often last for long durations.

Does a landlord have the same disclosure requirements when a tenant does not have a lease?

Landlords have contended that they owe no disclosure to certain tenants due to the fact that they can terminate the tenancy upon 30 days notice and the disclosure requirements do not apply to short term leases of 100 days or less.

This interpretation is inaccurate.

The United States EPA has issued interpretive guidance as to the applicability of the disclosure requirements in situations where a landlord does not give a lease of over 100 days to a tenant.

The guidance provides that in a month to month tenancy, disclosure must be made and the pamphlet given to the tenant.

The reasoning for the rule is due to the fact that by the nature of a month to month tenancy, the parties understand that the relationship may continue for a period in excess of 100 days.

The guidance also provides that the disclosure requirement kicks in at the time that the month to month tenancy starts.

This can be significant as there are residency relationships which may start as short term, day to day or even weekend tenancies which morph over time into month to month tenancies.

This may also include a subtenant who then assumes payment of rent which in certain circumstances, upon acceptance of the rent by the landlord, initiates a new month to month tenancy.

The disclosure obligations would commence upon the acceptance of the rent.

The disclosure obligations and the potential legal liability which arise under the rule, would begin at the time that the tenancy progresses from a short term tenancy into what is considered a legal month to month tenancy.

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