INSIDE
Law Update Cover 2,3
No More Spreading Lead
Tip of the Month Page 4
Rental Unit Condition Receipt
Did You Know? Page 4
Not All Lead Base Paint is a Hazard
Calendar Page 5
Upcoming Meetings
News & Notes Page 6
Meeting Minutes
Contact Information Page 7
Statewide & Local Chapter
Guide to Advertisers
Arthur Thomas Properties, LLC Page 2
Landlord Connection, Inc. Page 2
CertaPro Painters Page 3
Foy Insurance Page 3
NHREIA Page 4
Meyer Law Offices Page 4
KSK&M Law Page 5
Affordable Windows Page 5
Andrew Sullivan, Attorney Page
Deanna Boufford, Financial Services Page 7
Organized by and for Rental Property Owners
August 2009
“Landlords Helping Landlords”
P.O. Box 4183 . Manchester . www.NHPOA.org . 603.881.3682
No More Spreading Lead
Rick Reibstein, a former EPA attorney who helped
develop enforcement practices and policy pertain-
ing to the lead disclosure rule, is the founder and
director of the Regulated Community Compliance
Project (RCCP). The RCCP provides education on
federal lead-based paint requirements. He now
provides assistance and has no enforcement role.
It is safe to contact him with questions.
ABOUT THE AUTHOR
T
here’s a new federal rule that con-
tains provisions taking effect in late
April, 2010, that will require lead-
safe work practices in pre-1978 housing
and child-occupied facilities. With limited
exceptions, when paint is disturbed, efforts
must be undertaken to prevent the creation
and spread of dusts. This is because the
dust, even when invisible, will be toxic if
it contains lead. Lead dust inflicts serious
damage on the health of anyone who is
exposed, and particular damage to the de-
velopmental capability of children. Lead
has been associated with reductions in IQ,
increases in criminal activity, and difficul-
ty in learning, as well as several serious
health problems affecting many parts of
the body, including the blood and the ner-
vous system. If you have always thought
that lead poisoning is a problem restricted
to poorly-maintained homes where the
paint can be seen peeling off the walls, or
to hungry children eating chips of paint
because the lead tastes sweet, you need to
readjust your thinking. Lead poisoning
occurs across all economic strata. If reno-
vation that fails to minimize, contain and
clean up dusts occurs in a well-appointed
home, it puts inhabitants at risk. Exposure
to lead paint dusts is now considered to be
the leading cause of lead poisoning, and
renovation, repair and painting contracts
are significant causes of lead dust creation.
That is the new world we live in, where it
is beyond doubt that lead dusts are a sub-
stantial risk to everyone’s health, and
where reasonable people would expect
proper precautions to be observed. If you
have a container of something labeled POI-
SON you wouldn’t take the poison out of
the container and leave it lying around,
would you? We are in a moment of
transition now during which health science
has strongly established the recognition
that disseminated lead dusts from disturb-
ing old paint is poison, but we have not yet
placed it within containers that have such
warnings. That is what is changing. It is
now becoming an inescapable fact that
spreading lead is unacceptable.
This has been in the works for a long time.
The new rule is the latest regulation de-
rived from the 1992 Residential Lead-
Based Paint Hazard Reduction Act,
(RLBPHRA, also known as “Title X”)
which required the promulgation of the
regulation known as 40 CFR Part 745,
Subpart F, the “Disclosure Rule”, (also
known as Section 1018), which requires
disclosure of the fact that lead is, or may be,
present when renting or selling pre-1978
housing. It also created subpart E, the
“Pre-Renovation Education Rule”, which
required the handing over to customers by
contractors, of the “Protect Your Family
from Lead in Your Home” pamphlet, be-
fore beginning work that would disturb
lead paint. The new rule replaces the old
Subpart E and is titled “Residential Proper-
ty Renovation”, but everyone has been
calling it the “Renovation, Repair and
Painting” rule. It changes the entire thrust
of lead law to date.
Subpart F and the old Subpart E articulated
the “right-to-know” about lead dangers.
This right, which actually existed at civil
law when recognized by courts, emerges
from the concept that in a civilized society,
it is wrong for one party to have access to
information that the other party needs, and
for the first party to be able to withhold
that information when it conflicts with
their own selfish interests. This is the case,
for example, when you are trying to sell an
old house, and it has lead risks, but you
don’t want to say anything about that, be-
cause you want to make the sale and you
don’t want the potential buyer to think
there’s anything wrong with the house.
But in a civilized society, we place that
This Month’s Q&A Technology Tips
The Lead Paint Issue
selfish interest in making sure you make the
sale at a distant second place to the buyer’s
vital interest in not being poisoned. So the
rules stated they have the right to know that
the house has lead risks. This logic is so
strong that it even extends to the idea that the
house might have lead risks, simply because
it was built back when lead might still be in
the paints sold for residential use. In fact, the
closer you get to 1978 the less likely it is that
there is any lead in the house, but the dangers
are so great that even a small chance that lead
is there is enough to require disclosure that it
might be there. Lead is that bad, the risks to
buyers are that great, and the position of the
seller or lessor is that important. Congress
determined that it was a mark of an advanced
society that people would incorporate this
level of responsibility to each other when
making transactions.
But everyone knows that sellers and land-
lords can decline to investigate whether lead
is there, and choose to say that they don’t
know whether or not lead is there, and pro-
spective buyers and renters will receive the
message that lead might be there, not informa-
tion about whether it is or not. And everyone
knows that the simple act of handing over the
“Protect Your Family” pamphlet, which has
excellent information on how to protect your-
self from harm, may or may not be effective.
For example, it tells you that washing
children’s hands is important, and feeding
them foods rich in iron and calcium (which
inhibits the uptake of lead into the body). But
what if the family does not read the pam-
phlet?
The right-to-know of the buyer and seller is
critical and cannot be denied. But the new
lead rule is necessary because it is not enough.
The new lead rule has sprung from the same
roots as the disclosure and education rules:
from a sense of what a civilized society does.
In a country where people are supposed to
behave decently towards each other, it is
expected that efforts will be made to prevent
the spreading of poisons. It is not enough to
simply say, oh, there might be poisons in that
place where you will be living. It is neces-
sary to make the effort to prevent the poisons
from coming to rest in places where they will
harm others. This is the rationale behind all
of our pollution laws. We have applied them
to industry. The new lead law follows the
same logic.
This new law presumes that lead is present.
Before, you were urged to test for the pres-
ence of lead, but if you didn’t want to, you
didn’t have to, and you could put on the
disclosure form that you didn’t have any
compliance with the rules, it is a good idea
to respond quickly and fully, because it has
been given the authority under the Toxic
Substances Control Act to subpoena and
inspect the documents that must be kept to
show compliance with all the rules dis-
cussed above. The penalties for failing to
show compliance are significant. The ex-
cuse that it’s just a paperwork violation is
worthless, because Congress anticipated
that these rules would be enforced through
the requirement of documentation and
made failure to demonstrate compliance
through the proper paperwork a serious
matter. In addition there are state health
laws, which typically require that the lead
be abated when children are found to have
elevated levels of lead in their blood.
These can be costly.
But all that is just one part of the law. The
other big part is what can happen in litiga-
tion between sellers and buyers, landlords
and tenants, or others who may have been
harmed by the dissemination of lead dusts.
(These also can include neighbors or visi-
tors who may suffer exposure, or contami-
nation of their property, or communities
seeking cleanup of land or water that has
been contaminated by lead dusts. In addi-
tion, there are workplace limits on expo-
sure, to protect employees). If someone’s
child, for example, is harmed by lead, in
addition to state and federal actions, the
Page 2
knowledge. But now, if you want to escape the
requirement to use lead-safe work practices
when paint is disturbed in nonexempt locations,
you have to test and show that lead is not present.
(You have to use a test approved by the U.S.
Environmental Protection Agency).
This new law requires that you inform owners
and occupants on lead-based paint hazards be-
fore the work begins, (as before, but with a new
pamphlet); that individuals performing renova-
tions are properly trained; renovators and firms
performing the renovations are certified as capa-
ble of doing lead-safe work, and the work prac-
tices are followed. These include the following
actions. After performing pre-renovation educa-
tion and putting up notifications of the work, the
work area must be isolated – people kept out,
things like furniture that will collect dust re-
moved, windows and ducts closed or covered to
prevent the movement of dust), and plastic put
up to contain the dusts. Certain activities, such
as using machines that sand, grind, or blast,
unless they have dust collection that meets HE-
PA standards (High Efficiency Particulate Air
filter), or a heat gun over 1100 degrees Farenheit,
are prohibited. The wastes must be contained.
And leaving the workplace without cleaning it up,
to the standards described in the rule, is now a
violation of law.
If a landlord or property manager does the reno-
vation, unless they do it for free and are not
compensated through their contract or lease in
any way, they are considered the renovator and
must become certified and observe all the re-
quirements. If they hire
someone, they should
know that the firm they
hire must comply with sig-
nificant documentation re-
quirements. This presents
an opportunity for liability
protection. To understand
how important it is, it is
necessary to first under-
stand the relationship be-
tween the new rule and
liability in civil litigation.
The new rule is a part of
what is called administra-
tive law. It is enforced by
federal agencies. The U.S.
Environmental Protection
Agency (EPA) and the
Housing and Urban Devel-
opment (HUD) agency
have been charged with en-
suring compliance with the
nation’s lead rules since
1992. (HUD has had strict
rules requiring lead-safe
work practices at HUD-fi-
nanced properties for sever-
al years). If EPA contacts
you for information about
Landlord Connection, Inc.
Phone: 603-424-1596 Fax: 603-424-4032
Email: llcmail@earthlink.net
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LEAD, continued from page 1
family might decide to sue. This is not a
particularly easy case to make. The family has
to find an attorney, perhaps mount expert wit-
nesses, show causation of the harm by the
exposure, and above all, win the argument that
the defendant was negligent.
What is negligence? It is when a duty that is
owed to others is “breached”. That is, some-
thing that everyone expects of others, in a
civilized society, was not done, or something
that reasonable people would not do to others,
was done. Negligence has traditionally turned
on whether harms are “foreseeable”. This
makes a lot of sense. If you can see that
someone is crossing the street in front of you,
you can be expected to stop your car. But if
you cannot see them in time, if they dash out
too suddenly, it is not your fault.
This is what has just changed. Now, with this
new law in place, there is a very good argu-
ment that lead poisoning is a foreseeable result
of failing to isolate the workplace, notify the
occupants, minimize the generation of dusts,
contain them, and clean them up. This new
rule is a clear and resounding statement that
these are things that are expected of people.
This new rule should make it very much easier
for anyone to sue, successfully, in the event of
harm, related to situations where lead-safe
work practices have not been followed.
For that reason this article does not begin with
details about exemptions to this law. It applies
only when more than 6 square feet of interior
space has been disturbed, or 20 square feet of
exterior space. It does not apply if the owner
signs a statement that the renovation is occur-
ring in their residence and no child under 6
resides there, nor a pregnant woman, and the
housing is a not a child-occupied facility, and
LEAD, continued from page 2
Page 3
7 CONVENIENT NH LOCATIONS
Nashua ~ 883-1587 Exeter ~ 772-4781
Concord ~ 224-2378 Salem ~ 898-6320
Hooksett ~ 623-2451 Tilton ~ 286-8978
Manchester ~ 641-8111
www.foyinsurance.com
REPRESENTING OVER 100
INSURANCE CARRIERS
the owner acknowledges that the ren-
ovation firm will not follow lead-
safe work practices. It does not ap-
ply when a facility is not child-occu-
pied, which specifically means that a
child visits it regularly on at least
two different days within any week,
provided that each day’s visit lasts at
least 3 hours and the combined week-
ly visits last at least 6 hours, and the
combined annual visits last at least
60 hours. It does not apply to single-
bedroom facilities, or housing for the
disabled or elderly, unless there are
children residing or expected to re-
side there. But these exemptions are
about what the agencies will do.
They do not limit what someone
might sue for in court. If the argu-
ment can be made that reasonable
people should know that failing to
contain lead dusts will create foresee-
able dangers, that those who created
the dusts are in a position to prevent
foreseeable harm to others, and
should have done so, then these exemptions
will not necessarily be enough to convince a
judge to dismiss the case.
This potential liability at common law is an
issue for landlords and property managers
who hire renovators, who could be sued as
well if they don’t hire someone who follows
the rules, or if they take too narrow a view of
when to be lead-safe. It is not just the renovat-
ing firm that faces a new risk of liability for
performing work that creates lead dust dan-
gers. Because of this, the documentation re-
quirements of the law should be a very
important focus for anyone hiring renovation,
repair or painting contractors.
If you are a property owner or manag-
er, you should know that the renova-
tion, repair or painting contractor
you hire – whoever disturbs more
than the threshold amounts of paint –
will have to have paperwork show-
ing they observed all the lead-safe
work practices, including the train-
ing and certification requirements. If
you want to be able to show in any
case that might occur that you acted
responsibly, here is your proof. You
might want to get copies of that
documentation. You might want to
require, in your contract with the
firm, that they observe the require-
ments and share copies of the docu-
mentation with you in order to prove
it. The rule does not require they do
this for you, but that they do this for
federal regulators. But why not use
this for your own benefit? Imagine
how much better of a position you
will be in, if someone claims your
recklessness poisoned them, if you can pro-
duce these papers. If justice prevails, your
good faith attempts to do the right thing should
get the case dismissed with prejudice. Now
imagine you don’t have those papers. The fact
is, this new rule offers you great protection
against civil liability for harm from lead expo-
sure. But only if you have taken it very seri-
ously, have taken steps to ensure the new rule
is followed, and keep proof.
The point of all of this is that lead dusts are
now firmly recognized and proclaimed to be a
risk serious enough to justify mandating the
use of preventive practices. We can no longer
wait for children to be harmed first before we
act, and we cannot rely solely on right-to-
know. We cannot ignore the risks anymore, or
the responsibility to reduce or eliminate them.
Lead is so dangerous that we must shift the
burden of proof, now, from making someone
show that it is there, to presuming that it is
there. This new rule takes that step in the
context of administrative enforcement, and it
presages the day that that step will be required
by other means - by common practice, by
common understanding, by common decency,
and perhaps by common law.
To learn more,
Ÿ Go to: www.epa.gov/lead. The new re-
quired pamphlet, “Renovate Right”, can
be found at the EPA’s website, along with
the new Subpart E and fact sheets.
Ÿ Contact Rick Reibstein, Director of RC-
CP at 617.358.336 or [email protected].
Ÿ Contact Debbie Valente, Manchester
Chapter President, at 603.867.8465 or
Page 3
Did You Know??
Page 4
[When signing leases with new tenants], landlords
should inform the tenant, in writing, that any condi-
tions in the rental unit in need of repair or correc-
tion should be noted on the [security deposit ]
receipt or given to the landlord, in writing, within 5
days of occupancy.”
This month’s tip taken from Steven Hyde’s article
Is“Close Enough,” Really Close Enough?
which appeared in the May issue of News & Views
Coakley & Hyde, PLLC
154 Maplewood Ave., Portsmouth, NH
www.coakleyhyde.com
Landlord Tip of the Month
Not All Lead Base Paint
Is a Lead Exposure Hazard!
NH RSA 130-A:1 Definitions
XI. "Lead base substance” means:
(a) When present in a dried film of paint or other
coating on walls, woodwork or other surfaces, or in
plaster, putty or other substances:
(1) The presence of lead equal to or greater
than 1.0 milligram of lead per square
centimeter of surface area as measured
on site by a portable x-ray fluorescence
analyzer; or
(2) The presence of lead equal to or greater
than 0.5 percent lead by weight as deter-
mined by laboratory analysis.
XVI. "Lead exposure hazard'' means:
(a) The presence of lead base substances on chew-
able, accessible, horizontal surfaces that protrude
more than 1/2 inch and are located more than 6
inches but less than 4 feet from the floor or ground;
(b) Lead base substances which are peeling, chip-
ping, chalking, or cracking or any paint located on an
interior or exterior surface or fixture that is damaged
or deteriorated and is likely to become accessible to
a child;
(c) Lead base substances on interior or exterior sur-
faces that are subject to abrasion or friction or sub-
ject to damage by repeated impact; or
(d) Bare soil in play areas or the rest of the yard that
contains lead in concentrations equal to or greater
than the limits defined in RSA 130-A:1, XI(b).
This “Did you know?” provided by Debbie Valente,
NHPOA Manchester President. (603) 867-8465
To submit an article or idea ,
please email Nicole Toye at
Page 5
CHAPTER MEETINGS
MANCHESTER
To be announced
Reservation Requested: 603.881.3682
SALEM/DERRY
To Be Announced
RENTAL PROPERTY OWNERS
Thursday, September 3, 8 AM
Gateway Restaurant, Rte 108 Somersworth
Topic: To Be Determined
Contact Tom Toye: 603.413.6175
SEACOAST
Join with RPOA
Contact Joe Nelson 603.431.5000
Watch for this new section in upcoming issues of News & Views. Members will provide
valuable information regarding legislative matters that urgently need YOUR action and
support.
Landlord Call to Action
Deb’s Legal Corner
Have you had an experience in which
the Courts ignored your Landlord
rights? Do you believe the Courts
have discriminated against you as a
Landlord?
Please contact Debbie Valente to share
your experiences at 603.867.8465 or
We need your input on the legal issues
you have faced in order to bring them
to the attention of Judge Kelley. If
enough landlords respond, it will sup-
port our plea to the Judiciary that Land-
lords rights are being ignored.
Remember, alone your voice may not
be heard, but together we can make a
difference!
NHPOA BOARD OF DIRECTORS
· Year to date membership update: 43 new members, total of 390 active members
· Lake Region has 148 members & would like join the NHPOA
· Landlord Workshop - Upcoming plan is for trade show in Concord (Sept) & Seacoast (Oct.)area. Purpose:
Increase membership;create greater awareness of the NHPOA; fundraiser
· Free workshop suggested [2hour] for Claremont & Keene to increase awareness membership.
· Discussed applying for grant money to help offset cost of website development
· Doris Beaulieu voted as secretary for the organization at this time
· Office Manager: Need to complete job description & seek new person to fill the position as of Aug 31.
· National Night Out on the West Side of Manchester, August 8th. Debbie will provide more information to the
members. Debbie would like to have a table set up to give out information about NHPOA.
· Discussed how to handle the present list of Landlords with tenants who have children with elevated levels of
lead in their blood in Manchester.
· Judy Nesset, past Nashua chapter president, voted in by the BOD’s
RENTAL PROPERTY OWNERS ASSOCIATION (GREATER SEACOAST & SEACOAST)
· Sergeant Tony Bosse from the Rochester Police Department discussed the increase in thefts targeting un-
locked cars in large apartment complexes and trailer parks.
· RPOA has a new address it is PO Box 444, Dover, NH 03821
· Scott Spewock, new Membership Director is working on a web site for RPOA. Scott is also working on a
way to track member’s vacant units so that we can refer prospective tenants to other members.
· A motion was made and voted on to purchase a lap top computer for up to $700 including the necessary soft-
ware to keep our membership information in a more portable, easily transferable place.
· A motion was made and voted on to purchase a “Pulse Pen” with pads for the cost of $150. This device has
advantages for taking notes at our meetings and is also is a recording device. Further discussion is needed.
· Guest Speaker: NHPOA Vice president, Malcolm Bealieu - Malcolm discussed NHPOA restructuring; the
strength of this association is in all of the statewide chapters sticking together; and the importance of more
statewide association participation is needed in Concord when legislation is being proposed.
· Guest Speaker: NHPOA Secretary, Doris Beaulieu - discussed advantage of taking notes with the “Pulse Pen”
· Guest Speaker: President of the Manchester Chapter, Deb Valenti - Deb spoke about lead paint inspections
and how it is important to stay pro-active with the lead issue. Get inspected & hire a contractor to remediate.
· Guest Speaker: Chris Kinneson of Somersworth Floor & Window - introduced us to a carpet made by Mo-
hawk that is virtually stain proof. The product, called Smart Strands, has a lifetime stain warranty and 12
year wear warranty. It is available for about $21 yard installed with pad. Ph. # is 603-692-6481.
News & Notes
Local Chapter Meeting Minutes
NHPOA Statewide Information
P.O. Box 4183 - Manchester, NH
603.881.3682
www.nhpoa.org
LOCAL CHAPTER INFORMATION
Statewide President
Rick Blais
603.641.2527
blaisrick@yahoo.com
Statewide Vice-President
Malcolm Beaulieu
603.644.8192
Concord
Alex Moody
603.340.0009
Manchester
Debbie Valente
603.867.8465
Nashua
Judy Nesset
603.880.6464
Rental Property Owners Association
(formerly Rochester Landlords Association)
Tom Toye
603.413.6175
ttoye4@arthurthomasrentals.com
Salem/Derry
Mark Lutter
603.579.0302
Seacoast
Joe Nelson
603.431.5000
joemulti@rcn.com
The NHPOA Newsletter is distributed
via email to all its members.
Please inform your local chapter
president if you would like to receive a
hard copy of this newsletter.
To make a submission, please email
Nicole Toye directly at
Attention Members:
We need your help!
We would like your feedback on
how to improve the NHPOA and
our local chapters. Please share
your ideas.
Help us grow! Please give an
NHPOA application to a land-
lord you know and invite them
to join our organization.
Highly motivated individual
for rewarding career in
financial services.
Call Deanna 603.641.2527
WILLING TO
EDUCATE
