Lead paint disclosure on older homesBuilt before 1978, the paperwork comes before the buyer is bound.

The federal rule reaches target housing, and the definition of target housing starts with a date. Under 40 CFR 745.103:

Target housing means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities or any 0-bedroom dwelling (unless any child who is less than 6 years of age resides or is expected to reside in such housing).

40 CFR 745.103, definitions

So the first fact to pin down is when the house was constructed. A house constructed in 1978 or later is outside the definition. For an older house, the exceptions are written in the regulation's own terms, quoted above, and each one returns to the rule under the condition in its closing parenthesis. Whether a particular house fits one of those categories is a question for a Virginia real estate attorney, not something to decide from a listing sheet.

The rule itself sits in 40 CFR 745 Subpart F, and it applies to all transactions to sell or lease target housing, with a short list of exceptions. For a sale there is one: a sale of target housing at foreclosure. The regulation also excepts housing found to be free of lead-based paint by a certified inspector, but it writes that exception for leases, not sales. EPA's summary says the requirement applies to most pre-1978 private housing, public housing, federally owned housing and housing receiving federal assistance.

The rule defines its subject, too. Lead-based paint, for the federal lead paint disclosure, means paint or other surface coatings containing lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight. Virginia's licensing statute words its own definition a little differently, so the federal wording is the one that belongs in any sentence about this rule.

The buyer's part of the rule is time. Before the purchaser is obligated, the seller has to allow a period to look for lead.

Before a purchaser is obligated under any contract to purchase target housing, the seller shall permit the purchaser a 10-day period (unless the parties mutually agree, in writing, upon a different period of time) to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards.

40 CFR 745.110, opportunity to conduct an evaluation

The period can be longer or shorter, but only by mutual written agreement, and the purchaser may waive the opportunity altogether by indicating so in writing. A spoken agreement to skip it does not meet the rule. How the 10 days sits beside the other deadlines in a purchase contract, and what happens to a deposit when a buyer walks away, is contract mechanics covered in earnest money and contingencies.

Who does the lead work

In Virginia a lead inspection is a surface-by-surface investigation to determine the presence of lead-based paint, with a report explaining the results. Conducting one takes a lead inspector's license, and conducting a lead risk assessment takes a lead risk assessor's license, both from the Virginia Board for Asbestos, Lead, and Home Inspectors. That board also licenses home inspectors, but a general home inspection is a separate service with a separate license. Whether a seller orders one before listing is its own question: should I get a pre-listing home inspection.

The regulation brings the seller's agent inside the rule. An agent is any party who contracts with a seller, or with the seller's representative, to sell target housing. A purchaser, or a purchaser's representative who receives all compensation from the purchaser, is not one.

A seller who signs a listing agreement on a pre-1978 house has, in the regulation's terms, brought an agent into the sale. Each agent must ensure compliance with the whole subpart, starting with informing the seller of the seller's obligations under 40 CFR 745.107, 745.110 and 745.113. An agent who has done that is not liable for failing to disclose lead-based paint or hazards that the seller knew about but did not disclose to the agent.

Any person who knowingly violates the provisions of this subpart shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual.

40 CFR 745.118, enforcement

Alongside that liability, a person who knowingly fails to comply with the subpart is subject to civil monetary penalties. The word that runs through both sentences is knowingly, and the seller's disclosure turns on known paint and known hazards, not on what a test might have found.

Not the same as the state statement's lead subdivision

Virginia's residential property disclosure statement has its own lead subdivision, and it is about plumbing, not paint. Under Va. Code 55.1-703 B 15, the owner makes no representations about whether the property contains any pipe, plumbing fitting, fixture, solder or flux that does not meet the federal Safe Drinking Water Act definition of lead free. DPOR's current form prints that item under a different number than the Code, so the Code subdivision is the reference to use. The state statement and the federal attachment are separate documents with separate rules. How the statement works from listing to settlement is in Virginia's seller disclosure, explained, and the short definition is the seller disclosure glossary entry.

The rest of what goes into putting an older house on the market starts with selling your home in Southwest Virginia.