Lead Paint and the Warranty of Habitability in Pre-1950 Rental Housing: Maryland's Lead Poisoning Prevention Program Creates a Presumption of the Presence of Lead Paint

Abstract

This article examines the value of a presumption that there is lead paint in pre-1950 rental housing in Maryland in routine landlord-tenant actions in which expert testimony is generally unavailable. Lead hazards often accompany other breaches of the warranty of habitability in older housing, but are rarely brought to the court's attention in landlord-tenant actions because testing for lead is infrequent.The purpose of the Maryland Lead Poisoning Prevention Program (LPPP) is “to reduce the incidence of childhood lead poisoning while maintaining the stock of available affordable housing.” The LPPP requires, inter alia, lessors of residential property to: register with a statewide rental registry tracking lead safety and hazards in each rental housing unit built before 1950; notify tenants of the risks of exposure to lead and of their rights under law; and repair and clean rental property built before 1950 to reduce the risk of poisoning of the state's children. The LPPP has broken new and controversial ground in affording lessors a limitation on their tort liability in exchange for their compliance with the reporting and property treatment requirements.This article asserts that the LPPP creates a rebuttable civil presumption that there is lead paint in rental housing built before 1950. To rebut the presumption, the owner can file an inspection report indicating that all the exterior and interior surfaces of the rental property have tested as lead-free according to standards and procedures established by the Maryland Department of the Environment (MDE). The creation of a mechanism for exempting a property that is certified as lead-free from the risk reduction provisions of the law implicitly creates a presumption that non-exempt pre-1950 properties contain lead substances.This article begins with a brief background on lead hazards in rental housing and on legislative responses to the problem in the laws of other states. The article then examines Maryland's LPPP and its relationship to civil remedies available to a tenant family that has lead hazards in its rental unit. It then discusses the operation of and significance for Maryland tenants of the presumption in the LPPP that there is lead paint in housing built before 1950. The article concludes that the implicit presumption serves the goals of fairness to the parties and of judicial economy.