LEAD Action News Volume 17 Number 2, November 2017

Info Pack - Renting and Lead - What residential landlords and agents should know

By Elizabeth O'Brien, Lead Advisor, LEAD Group test kit results interpretation service

I submitted the following suggestions to the Queensland RTA webmaster so keep a lookout at https://www.rta.qld.gov.au/Renting/During-a-tenancy/Maintenance-and-repairs for when they add useful info about lead to their site about renting:

"Your Maintenance and repairs page should list Lead-safety, and the Lead-safety page should include: when paint is flaking chalking or peeling, test the paint at a lab for lead; when a commercial property was first painted prior to 2010 or a residential property was first painted prior to 1997, test paint, soil and internal and external dust wipes at a lab for lead; when rainwater is used for drinking and the building was built prior to 2004 OR the tank was added to an existing building built any year, test first flush and flushed rainwater from tap (prior to it being used for drinking, and at the start of each new tenancy lease); before soil is used for poultry or vegetable-growing, test at a lab for lead."

In addition to the factsheet "Lead paint & ceiling dust management - how to do it lead-safely [Info Pack 3]" at www.lead.org.au/fs/fst38.html, please find our info pack on Renting & Lead below and follow the links.

According to the factsheet: Asbestos and lead (2010, July 2011, last updated January 2014):

“Lead is a metal found in old paint (before 1970), dust in the roof and soil. Lead can be harmful, especially to small children and pregnant women....

“The landlord must:

provide the premises ‘reasonably’ clean and fit to live in...

“[The tenant] must: ...

mitigate loss – take reasonable steps to limit or avoid loss (see below)....

“Mitigation of loss Examples include:

a tenant stopping use of a room where asbestos fibres have been exposed
a landlord promptly fixing damage to reduce risk.”

[Ref: http://intranet.tenants.org.au/print/fs26.pdf ]

The factsheet cites the case of Symonds v Duncan (Tenancy) [2004] NSWCTTT 499 (20 August 2004) about a Mullumbimby pre-schooler in a home that was sandblasted inside and outside, and which was tested and found by Council to exceed lead standards. The child had a notifiable blood lead level (ie a blood lead level above 5 micrograms per decilitre, which the lab was required to notify the NSW Health Department about, according to the Public Health Act), and the final statement by A. Borsody, Member, Consumer, Trader & Tenancy Tribunal (CTTT) NSW, was:

"The landlord is to pay the tenant the sum of $1,866.98 on or before 2 September 2004."

In the Mullumbimby case of Symonds v Duncan (Tenancy) [2004] NSWCTTT 499 (20 August 2004) [www.austlii.edu.au/au/cases/nsw/NSWCTTT/2004/499.html], a letter I wrote for the tenants: “Lead hazard abatement instructions for household items” was submitted as evidence [“Lead Advisory Service Australia, regarding lead hazard abatement instructions”] and apparently accepted by the Tribunal Head.

A witness (a painter) for a real estate agent who was representing the landlord in the case of Symonds v Duncan (Tenancy) [2004] NSWCTTT 499 (20 August 2004) stated that:

“there was lead paint in the house, there is lead paint in all old houses and everyone knows that.”

[Ref: www.austlii.edu.au/au/cases/nsw/NSWCTTT/2004/499.html ]

Whilst it is clearly not true that “everyone knows” there is lead paint in all old houses, it is generally true that there is lead paint in all old houses (unless the paint has been tested and found not to be leaded, for example, if all the old paint has been stripped). The lead standards which were referred to in this case (above) are the levels of lead found (by laboratory testing) in dust wipes and soil samples, which provide “clearance” (that is, if the results exceed the standards, the home is deemed not lead-safe, if the results are less than the standards, the home is “cleared” or “safe” for residence by young children and pregnant women) from the Australian Standard AS 4361.2 - 1998 Guide To Lead Paint Management – Part 2: Residential And Commercial Buildings.

Landlords and agents for pre-1970 residences, should know that an old home with peeling or chalking paint is not fit to live in for young children or pregnant women (unless the paint has been tested and found to be unleaded); and even if the paint is in good condition, the dust in the premises and soil outside may exceed the lead standards, again, making the home not safe to live in for young children or pregnant women (unless tested prior to the tenants moving in).

As “[The tenant] must: ...• mitigate loss – take reasonable steps to limit or avoid loss....” – the only reasonable way to do that, once a tenant has tested paint in a house full of peeling and chalking paint with a resident young child, or tested dust wipe samples in a home with sanded paint dust everywhere and a resident pregnant woman, and found it to be leaded, is to move out immediately, in order to avoid lead exposure for that young child or foetus. Once notified of the lead paint hazards by the tenant, a reasonable landlord or agent, would organise lead-safe paint management by a trained and experienced paint contractor, followed by “clearance testing” (analysis at a lab of dust wipe and soil samples to determine that no further clean-up is required to make the home fit for habitation by young children and pregnant women) as soon as possible, so that the tenant (or a new tenant) could move back in.

Here’s what I wrote for a tenant who recently moved her family (including her one year old child) out of a 70-90 year old home with peeling paint and damp problems, after she tested the paint with a LeadCheck kit and presented the photo of the red-coloured tip as evidence that the paint was leaded:

“From my reading of the Tenants Rights fact sheet 26, I believe that the property should not have been rented out to a family with a 1 year old [unless paint, dust and soil had previously been tested and found to be lead-safe]. I would go further and say that, renting a 1900s terrace house [without lead-assessment] to a family with a 1 year old is a breach of the landlord’s duty to “provide the premises ‘reasonably’ clean and fit to live in”. Without knowledge as to the lead-safety of the premises (including the yard), the landlord was not providing a home fit for a 1 yr old to live in. Thus, if I were you, I would be claiming all my expenses of moving in, paying rent, and moving out. (Presumably you got your bond back.) I would not however bother to claim the cost of medical expenses for your blood lead tests, because these do not seem to be accepted by other Tribunal Heads. Your action in moving out as soon as possible following your lead test of the peeling and chalking paint, was completely in line with your duty to “mitigate loss – take reasonable steps to limit or avoid loss”. You were avoiding the loss of IQ in your child (and potentially in your future children) and preventing other potential lead poisoning impacts on health and learning behaviour. Have you submitted receipts for all your costs of moving in and moving out?

“More than 1,420 advisors and media events have inspired over one hundred thousand people to contact The LEAD Group Inc (environmental health charity) for more information, then hundreds of thousands of people, if not millions of people, (and millions have visited our long-standing website www.lead.org.au ) have been told about lead or heard about lead in the Australian media, and as it is a duty of a landlord to ensure that a rental premises is fit to live in, it is the landlord’s duty to know that the older a property is, the more likely it is to contain high lead levels in the paint, dust, ceiling dust and soil, and when plumbing taps and fittings are less than five years old, also in the drinking water, and therefore the less likely it is to be fit for a young child to live in, or for a woman who is pregnant or planning a pregnancy, to have to clean.

“Lead-aware landlords contact The LEAD Group’s information service regularly, and buy our kits to determine whether their rental properties are lead-safe for young children, pets, poultry and vegetable gardens, or whether it is safe for tenants to do their own renovation or preparation for repainting.”

[End of advice given to tenant with the one year old.]

Unfortunately, the tenant was advised by the Tenants Advice Service NOT to seek reimbursement for costs of moving in and moving out, and only to seek reimbursement for rent paid during the period after they notified the landlord of the lead paint test results, until the time they were able to find alternative rental accommodation and move out. The Tribunal member decided to grant them a 50% rent reduction only for the whole weeks of that period between notification of lead paint and moving out. You can read the Tribunal member’s decision by requesting (from The LEAD Group) a copy of:

<NCAT NOTICE OF ORDER re rent reduction for Lead paint in Balmain home 20140306.doc> [stripped of all identifying information, for privacy reasons].

The Queensland version of this Info Pack was web-published at www.lead.org.au/lanv12n3/lanv12n3-15.html; as part of our May 2012 issue of LEAD Action News e-newsletter at www.lead.org.au/lanv12n3/LEAD_Action_News_vol_12_no_3.pdf

Lead assessors in NSW are listed in a very old list at www.lead.org.au/clp/assessorsnsw.html and a real estate agent or landlord could be asked by the tenant to organise a home lead assessment (sampling for laboratory analysis, report-writing) after peeling paint has been cleaned up, or, if the paint contractor doesn’t want to be blamed for existing lead contamination, the tenant could request a home lead assessment BEFORE and AFTER paint is prepared for painting-over, or fully stripped.

If the home lead assessment by a lead assessor is regarded as too expensive (it depends on the number of samples collected but it is typically $500-$1000), the landlord or agent can cooperate with the tenant in using a LEAD Group DIY-sampling lead assessment kit which is half to quarter the cost of a lead assessor. See www.leadsafeworld.com/solutions/lead-group-diy-sampling-lab-analysis-lead-test-kits/ - the samples can be sent to the lab in two batches if preferred so that you have both pre- and post-repainting dust wipe and soil results to check on whether the painter has done a lead-safe job and finally whether the home and yard is lead-safe for a pregnant woman, child or pet.

At the very least, the landlord should reimburse a tenant for the cost of testing the flaking paint with a spot test kit (3M LeadCheck kit) or the cost of laboratory analysis of paint and dust wipe samples (and soil, rainwater and ceiling dust samples if relevant) if the paint has already been dispersed by flaking or cracking off, dry-sanding, sawing, water-blasting (without debris capture) or grinding. Note that if the colour on the tip of the LeadCheck kit tester turns pink when you use it on paint, then the paint must contain at least 0.5% lead, which is equivalent to 5000 parts per million (ppm) lead –- a very high figure indeed! Always take a photo of the sample being tested (preferably showing the colour change on the paint while the paint is still on the painted surface, so that your photo cannot be questioned), and the coloured tip of the LeadCheck tester, for your records. LeadCheck kits cannot be used to test dust or soil. But purchasing a LEAD Group test kit yourself is always an option. The LEAD Group kit cost includes a written report including the results and interpretation of the results:- comparison of the specific results to Australian and other standards, and world’s best practice standards, as well as recommendations specific to the results.

Another NSW lead paint residential tenancy case, at

www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCTTT/2008/1354.html?stem=0&synonyms=0&query=lead%20paint states:

[The Tenants] sought orders on 12th May 2008:

That the agreement be ended for a breach by the landlord

That the landlord refund all rent from 16th April 2008

That the landlord ensure that the premises and the tenant’s possessions are decontaminated and that carpets are replaced no later than twenty-eight days from the date of the order

That the property is not re-let until it has been decontaminated

That the landlord compensate the tenants for goods which have been contaminated, for cleaning of possessions, for alternate accommodation, for removalists costs, for storage of possessions, emergency supplies and other costs

That the landlord compensate for non economic loss for causing anxiety....

“The onus of establishing that a loss was suffered and the amount of that loss rests with the parties seeking to recover the loss....

“Compensation for distress may be awarded under Section 16. The onus of establishing the claim for non economic loss rests with the applicants and very little acceptable evidence has been adduced in relation to this claim. Having regard to the whole of the evidence and noting that the landlord was not informed of the alleged problems for almost three weeks it is appropriate to asses compensation of non economic loss in the sum of $1000.00

“The landlord is accordingly ordered to pay the tenants the sum of $1,000.00 by way of compensation and $1,000.00 by way of non economic loss. A total sum of $2,000.00 is to be paid within 14 days.”

If you are submitting any of the above types of costs for reimbursement, the above case behoves you to provide full documentation, including photos of the condition of the premises and your possessions, and receipts, and any written reports.

Unfortunately the NSW Department of Environment & Climate Change has, for no good reason, taken the part of the Lead Safe Renovator's Guide that they did web-publish, off their website, so you need to go to the Google Archive to find it: Part of A Renovator’s Guide to the Dangers of Lead is available on-line at http://web.archive.org/web/20070830233627/www.epa.nsw.gov.au/leadsafe/leadinf4.htm – then look for the Three Bucket Method because that is the system someone will need to use to clean up the paint flakes and dust.

We have also published the whole Guide at www.lead.org.au/fs/lead_safe/A_Renovator_Guide_To_The_Dangers_Of_Lead_Lead_Safe.pdf and you’ll find links to the rest of the Lead Safe series of booklets and fact sheets (including housekeeping / cleaning guidance) in “Info Pack 31 - Lead Safe series of publications by NSW Lead Reference Centre, EPA” at https://lead.org.au/lanv13n3/lanv13n3-23.html

One of the Lead Safe series of publications by the NSW Government dating from the late 1990s, contained a map showing the number of pre-1970 residences by NSW Council area, and stated “Before 1970, paint used for domestic and other applications contained significant quantities of lead.” [Ref: page 5 and map, page 21, (October 1997) www.lead.org.au/fs/lead_safe/A_Guide_For_Health_Care_Professionals_Lead_Safe.pdf ]

Please find from another edition of our newsletter, LEAD Action News, at www.lead.org.au/lanv9n4/LEAD_Action_News_vol_9_no_4.pdf (also available on request as filename: <Residential tenant's successful letter seeking compensation over lead contamination 20090430.doc> to use as a template for your own letter), a letter to a real estate agent, written by a NSW tenant who had to move his family out of a lead-contaminated home but who was later compensated for various costs and refunded his rent.

The Housing NSW policy on lead paint, at www.housing.nsw.gov.au/Forms+Policies+and+Fact+Sheets/Policies/Lead+Paint+Policy.htm states:

“Lead is highly toxic and affects virtually every system of the body. While adolescents and adults can also suffer from excessive lead exposures (especially those who are occupationally exposed to lead, and pregnant women), the people most at risk are children under the age of four....

“Where there is any significant lead paint risk, Housing NSW will not allocate properties to tenants, particularly to families with children under the age of four years, until the hazards have been rectified.

“In properties where children under the age of four years are part of the household, Housing NSW will act immediately it is aware of the presence of lead paint where it is in a form and context that can be directly ingested by children.”

Kits can be purchased through www.leadsafeworld.com/shop or see the factsheet at www.leadsafeworld.com/solutions/lead-group-diy-sampling-lab-analysis-lead-test-kits