New York Real Estate Journal

The “Perfect Storm” for NYC violations & litigation - by Lee Wasserman

May 10, 2022 - Owners Developers & Managers

The “Perfect Storm” for NYC Violations & Litigation: Rental properties, lead paint and CDC’s new reference value

On December 30, 2021, NYC HPD issued a press release titled, “HPD Enforces NEW Definition of Lead based Paint, Protecting more children across the city as part of LeadFreeNYC Initiative” The next sentence is italicized and reads, “New Standards, the strictest in the nation, expected to prompt an increase in lead violations issued by HPD.” Multiple times in this press release, HPD emphasizes phrases such as, “will increase the enforcement” and “significantly more audits.” “HPD has stepped up enforcement, initiating litigation and partnering with other entities such as NY Attorney General and the NYC Law Department.” You can read more about this here: https://www1.nyc.gov/site/hpd/news/073-21/hpd-enforces-new-definition-lead-based-paint-protecting-more-children-across-city-part.

HPD also announced the change in the definition of NYC lead-based paint. The city decided to cut the federal level in half (Now-0.5mg/cm2) and emphasized this new definition will affect multiple processes related to compliance with LL1. These processes will impact owners and tenants in a few ways, including: “More painted surfaces will be positive at this lower level, resulting in the issuance of more HPD violations…”, “More friction window and door surfaces will need to be abated when dwellings turnover”, “Property owners to complete testing in all units subject to LL1 by August 2025” (units with kids under five have 12 months from move-in, or from the laws effective date for existing children to lead-based paint inspect those units), and “Exemptions already issued by HPD (at 1.0mg/cm2) will be revoked upon turnover of unit.” In addition to the above, HPD also changed the definition of “Resides” to mean, “routinely spends 10 [hours] or more hours a week.” The city lowered the dust clearance levels to the lowest in the country (5mg/ft2 for floors, 40mg/ft2 for window sills) and have given residents a lot more power and protections by modifying their #311 NYC lead paint compliant hotline per the HPD press release.

In case it wasn’t already abundantly clear, HPD means business.

These laws are going to be enforced and the evidence is hard to miss. HPD is currently increasing staffing to accommodate more enforcement actions, more resident complaints, more audits and more abatements as their press release states. If your property and staff are not currently complying with the new NYC lead-based paint regulations, you are already at risk!

Hopefully your properties are complying with the new requirements as best they can while owners, managers and staff are trying to figure out the requirements and what are the best practices to comply. While figuring out best practices, be aware the U.S. Center for Disease & Control (CDC) released their Advisory Panel’s most recent recommendation on 10/28/2021 to lower the Reference Value which is considered by many litigators, lead poisoned.

All it would take to land the “Perfect Storm” on your door step are as follows:

  1. A failure to comply with NYC HPD’s OLD and NEW Lead paint LL1 requirements;
  2. A failure to comply with EPA’s regulations;
  3. A #311 resident complaint;
  4. A HPD random compliance audit;
  5. A child whose blood lead level is at or above the new lower CDC reference value; or
  6. Maybe just a resident who has ulterior motives, but uses the lead based paint issue and the leverage of LL1, #311 to bring the city (or worse, litigators) to your property.

Considering all this and the recent NYC LL1 amendments, it’s likely that hundreds of thousands of units will be in violation by August of 2025 (the cut off date for units to be lead tested).

It should be telling that HPD is giving property owners three years to get their buildings tested. The truth is, there just aren’t enough lead evaluation entities to get this accomplished sooner. Another factor that will undoubtedly come into play is rising costs. As the companies that have the capabilities to conduct the evaluations get swamped with requests, they’ll be able to charge more for their services.

With an estimated two million units that need to be inspected over the course of the next three years, HPD is banking on the fact that a decent number of units simply won’t be able to find inspectors. Why? Well consider this—it’s taken the largest lead evaluation companies in the Northeast two and a half years to inspect 100,000 NYCHA units.

What can you do to get out in front of this perfect storm that’s rapidly heading your way? It’s important to first give yourself some credit! By reading this article and becoming informed, you’re already ahead of the curve.

Next, ask yourself some tough questions:

  1. Can your properties obtain exemptions based on the new lower standard?
  2. If not, how can you comply?

Getting your properties tested for lead-based paint will give you a much clearer picture of what your next steps should be in order to keep/obtain compliance.

Lee Wasserman is the CEO of LEW Corp. and NAETI, Mine Hill, N.J.