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Ask Sam: My apartment tested positive for lead. Now what?

Your landlord is legally obligated to remove any lead paint in the apartment. 

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Question:

We found out our 1-year-old had elevated lead levels, and when we tested our walls with a lead kit, it was positive. Our landlord told us to move out, and that he doesn’t plan on fixing anything. The Department of Health came to test, and told the landlord he had to address the lead problem. Now he’s trying to evict us. What can we do?

Answer:

Under New York City housing law, if a child is found to have elevated levels of lead, the Department of Health will inspect the apartment and order the owner to address the issue.

However, given the dangers lead poses to children’s health, it may be in your best interest to move out, says Sam Himmelstein, a lawyer who represents residential and commercial tenants, tenant associations, and co-op shareholders.

First, it’s important to understand the laws regarding the presence of lead in different types of buildings.

“By statute, in a multiple dwelling in a pre-1960 building of three or more units, the owner is required to ascertain if there are children under age 6,  and if so, inspect the dwelling at least annually for lead hazards—with a report in writing given to the tenant and retained for 10 years—and safely abate them,” explains Matthew Chachere, an attorney with the Northern Manhattan Improvement Corporation.

In smaller buildings, including one- or two-family buildings, the landlord must permanently abate any lead-based paint once the tenant moves out and keep documentation proving they’ve done so. However, this law does not apply to owner-occupied one or two-family homes.

But whatever the size of a building, if a child is found to have elevated levels of lead in their blood, the DOH will inspect the property and order the owner to remove the hazard. When owners don’t comply, the city sends in an emergency repair program and then bills the owner for the work.

“As a matter of common law, regardless of the number of apartments, a landlord can be found liable for damages to the child if the child is exposed to lead-based paint or lead dust in the dwelling and suffers injury,” Chachere says.

In your case, you also have the option of bringing an HP proceeding against your landlord in housing court—essentially, suing your landlord for failing to comply with the law—to get the lead cleaned up quickly.

If you are not a rent stabilized tenant, and you have no lease, the lease has expired or are a month to month tenant, the landlord can evict you. If you have a current lease, then your landlord does not have grounds to evict you, but it’s likely that he will not renew your lease.

“It’s arguably retaliatory to not renew a lease because a tenant has made a complaint,” Himmelstein says. “Under the real property law, a landlord shall not decline to renew a lease or evict a tenant because a tenant has filed a complaint to a government agency to get an apartment habitable.”

But that law covers all rental premises except owner-occupied dwellings with four or fewer units, so it may not apply in your situation.

“There might be a common law anti-retaliation claim,” Himmelstein says, “but all you get if you win is another year of lease. It doesn’t get you a perpetual tenancy.”

And given the substantial health risks children face if they ingest lead, it may be in your best interest to get out of the apartment quickly. Under the circumstances you’re facing, it would be probably be defensible in court to break your lease and move to a safer home.

“Health comes first,” Himmelstein says. “If you broke your lease under these circumstances and the landlord sued for breach of lease, you’d have a defense that you were forced to leave due to the dangerous conditions in the apartment.”

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Sam Himmelstein, Esq. represents NYC tenants and tenant associations in disputes over evictions, rent increases, rental conversions, rent stabilization law, lease buyouts, and many other issues. He is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan. To submit a question for this column, click here. To ask about a legal consultation, email Sam at [email protected] or call (212) 349-3000.