| 9 no 4, September, 2009, ISSN 1324-6011
Incorporating Lead Aware Times ( ISSN 1440-4966) and Lead Advisory Service News ( ISSN 1440-0561)
The Journal of The LEAD (Lead Education and Abatement Design) Group Inc.
Editor-in-Chief: Evan Whitton
Residential tenant’s successful letter seeking compensation over lead contamination
Re: Lead Levels at [Tenant's address]
Further to your letter dated [date] and our telephone conversation on [date] and your email dated [date], I would like to clarify our position both with regards to the request for a lead assessment on the property, and the matter of discussing this with the landlord. I called by the landlord on [date]. I left my mobile number with his secretary, and I asked if he could call me at his earliest convenience.
He telephoned me back on [date - two days later].
In our conversation I informed him that we would be removing the lead light glass cupboard doors in the kitchen due to lead oxide dust (2 doors removed by unscrewing two screws – no damage done and easily replaced) and would wrap them up and store them. I explained that we were concerned about the level of lead exposure and that we could not have them in use, as they were a health risk. He had no objections to this, and even mentioned that he could not take any further risks with my children. My wife had noticed large amounts of dust coming off the lead lighting. So much so that she had to clean the dust numerous times throughout the day.
The cupboard in question housed all our cups and plates and the doors opened directly on top of our youngest daughter’s seat at the kitchen table. The dust accumulated on our plates and cups that were stored behind lead light glass cupboard doors. Every day there was a new layer of dust inside the cupboards on top of the cups and plates. My wife researched and identified that it may be lead oxide dust. Lead oxide dust is extremely toxic, especially to young children.
I find it incomprehensible for this a property to be rented to a family with young children without making appropriate health and safety checks especially as the house contained lead light glass windows in the kitchen and the level of corrosion on the inside of the cupboard doors was extreme. My wife had also noticed she was suffering from unusual twinging / prickly sensations in her extremities of her feet and she felt unusually tired. My wife is a qualified Senior Research Scientist and thoroughly investigated all the information available on the dangers of lead exposure and the common sources found in houses. May I remind you that we are just pursuing our right to bring up our children in a safe and healthy environment? The Residential Tenancy Agreement clearly states: "12.The landlord agrees:
12.1 to make sure the residential premises are reasonably clean and fit to live in."
I find it astounding that in your telephone conversation or letter you showed no willingness to carry out this duty you have towards us. Quite the contrary, you firmly stated you would like the cupboard doors to be reinstated immediately. I find this request absolutely outrageous as you have neither checked nor investigated or are willing to have the white dust on the lead lighting checked. You stated in your letter dated [date]:
“The landlord will not be employing the services of a private contractor to measure the lead levels at his property as it is not his responsibility to do so.
”If not the landlord's responsibility then whose responsibility is it? We had our blood lead levels checked. All of our lead levels came back seriously elevated and very dangerous to our health. We will continue to monitor our blood levels.
My wife’s venous blood lead level is 0.6 µmol/L. which is dangerously high and well above the NHMRC acceptable level of 0.48 µmol/L and the level acceptable to the Global Lead Advice & Support Service (GLASS), of 0.1 µmol/L. Having discovered our blood lead levels were elevated.
We then contacted:
Elizabeth O'Brien, Manager, Global Lead Advice & Support Service (GLASS) run by The LEAD Group Inc.
PO Box 161 Summer Hill NSW 2130 Australia
Ph +61 2 9716 0132 Freecall 1800 626086
She advised us that although the stained glass cupboard doors may have been the main source of exposure it is highly unlikely it is the only source due to the age and condition of the property. The property would need to be assessed for lead levels/exposure. There is a lot of cracking and peeling paint and there may be other possible lead hazards.
I then contacted the Landlord and explained the above. I informed him that there was a lot of flaking cracking paint in the house and that it may be a source of lead dust/exposure and that it would need further assessment. I asked that he have an independent assessment carried out to identify any other lead sources that may be present in the house. (2 telephone numbers of Independent assessors supplied to landlord)
As per your email dated 11th March, it appears that the landlord has had a change of heart. You stated: “The landlord has asked me to advise you that he will be organising a lead level inspection of the property. I assume someone will be in contact to arrange access."
[The name of Consultant and company] contacted me and an appointment was made on March 23rd for him to assess the property for lead levels/exposure. He attended on the above date and took a limited amount of samples from the house. As my wife and I are very concerned for the health of our children and ourselves we decided to vacate the property until the results were obtained.
I made 4 phone calls to the consultant and sent numerous emails requesting some feed back. On 14th April he emailed me and stated:
"Am waiting to hear back from the owner, to clear my way for full feedback to you.
"At this stage I am not in a position to give detailed results, but can say that your concerns re the leadlight were spot-on, and the action you have already taken is appropriate and adequate.
"All but one of the other samples do not indicate a health risk (esp the vacuum dust, which showed less than 0.1% - i.e. lead not detected by the Lab analysis).
"However.....upstairs, kids playroom flaking wall paint is not ok. Will need attention before you return from hols, hence I'm trying to get hold of the owner.
[Name of consultant]
I request a copy of the above report immediately.
I left the property on [xxx date] with my whole family. My wife has refused to return to the property with the children because of the obvious health risks.
Due to the well-documented health risks of exposure to even tiny amounts of lead we need to have this matter addressed immediately.
I have taken legal advice and discussed the matter in detail with the Tenancy Advice and Advocacy Services NSW who pointed out the following regulations:
RESIDENTIAL TENANCIES ACT 1987SECT 22
Tenant’s right to quiet enjoyment
"22 Tenant’s right to quiet enjoyment"(1) It is a term of every residential tenancy agreement that:
"(a) the tenant shall have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (for example, a head landlord) to that of the landlord, and
"(b) the landlord or the landlord’s agent shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
"(2) A landlord or a landlord’s agent under a residential tenancy agreement shall not, during the currency of the agreement, contravene or fail to comply with subsection (1)
Landlord’s responsibility for cleanliness and repairs
"25 Landlord’s responsibility for cleanliness and repairs
"(1) It is a term of every residential tenancy agreement that:
"(a) the landlord shall provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant, and
"(b) the landlord shall provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
"(2) In this section:"residential premises" includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant.
Tenant may apply for an order that rent is excessive
"47 Tenant may apply for an order that rent is excessive
"(1) A tenant under a residential tenancy agreement may, at any time, apply to the Tribunal for an order declaring that the rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises already occupied by the tenant is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the premises.
"(2) This section applies whether or not the goods, services or facilities are provided under the agreement or a separate contract, agreement or arrangement or were provided under a previous contract, agreement or arrangement."
We are a very health conscious family. We eat a totally organic diet and drink pure water. We have never smoked and have the occasional glass of wine.
There are no other sources of lead in our daily life apart from what is inside the house.
Elizabeth O’Brien (GLASS) phone 02 9716 0132, free call 1800 626 086, www.lead.org.au is available for consultation on any of the above matters.
We are having further blood tests to monitor our lead levels.
We have taken numerous photographs and mini movies of the lead oxide dust and we have taken further samples in the house which we will be having analyzed ourselves.
The welfare and health of our children, and ourselves is of paramount importance.
Under Section 47 of the Residential Tenancies Act 1987 I am requesting a significant reduction in rent from [date] as this is the date I informed the landlord regarding the lead exposure. I am also requesting moving costs as we have not been able to have “quiet enjoyment” Sect 22 or enjoy the premises as they have not been “fit for habitation” Section 25. 1 (a).
What I am proposing is much less than I am legally entitled to claim for. I look forward to your reply on this matter so we can negotiate a settlement or if you prefer we can take the matter to the Consumer, Trader and Tenancy Tribunal.
I have been advised by the Tenancy Advice and Advocacy Services NSW that that they could schedule an urgent hearing.
I wish to give 1 months notice to vacate the premises at [address]. This is due to unsafe lead levels in the premises. I implore you to use lead-aware painting contractors and cleaning contractors (GLASS can supply referrals) to make the premises fit for habitation and to have Dieter return to re-assess the home prior to renting the premises to anyone else.
CC: [Owner] CC: Elizabeth O’Brien
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