Pastor, Church & Law

§ 7.08.01

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Key point 7-08.01. Many children are poisoned each year by eating lead-based paint. In an attempt to address this problem, the federal government has issued regulations imposing strict requirements on the sale or lease of residential property constructed prior to 1978. There are no exceptions for churches or other nonprofit organizations. Church leaders need to be aware of these requirements whenever they sell or lease church-owned residential property. Failure to comply with these requirements can result in substantial liability, including "triple damages."

Many churches own residential properties, including homes, duplexes, and even small apartment buildings. In many cases, homes are acquired as parsonages. But homes, duplexes, and apartment buildings in the immediate vicinity of the church also may be acquired for future expansion, and in some cases they are donated to the church. Church leaders need to be aware of strict federal regulations that regulate the sale or lease of some residential properties. The objective of these regulations is to reduce cases of poisoning among children who consume lead-based paint.

Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992 to address the need to control exposure to lead-based paint hazards. The Act established the infrastructure and standards necessary to reduce lead-based paint hazards in housing. Within this law, Congress recognized lead poisoning as a particular threat to children under age 6 and emphasized the needs of this vulnerable population. Section 1018 of the Act requires EPA to promulgate regulations for disclosure of any known lead-based paint or any known lead-based paint hazards in "target housing" offered for sale or lease.

The Act only regulates "target housing," which it defines as follows:

Target housing means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) or any 0-bedroom dwelling. … 0-bedroom dwelling means any residential dwelling in which the living area is not separated from the sleeping area. The term includes efficiencies, studio apartments, dormitory housing, military barracks, and rentals of individual rooms in residential dwellings.

There are no exceptions for housing that is owned by churches or other charitable organizations.

The following transactions are exempted from the Act's requirements:

(1) Sales of target housing at foreclosure.

(2) Leases of target housing that have been found to be lead-based paint free by an inspector certified under the Federal certification program or under a federally accredited State or tribal certification program. Until a Federal certification program or federally accredited State certification program is in place within the State, inspectors shall be considered qualified to conduct an inspection for this purpose if they have received certification under any existing State or tribal inspector certification program. The lessor has the option of using the results of additional test(s) by a certified inspector to confirm or refute a prior finding.

(3) Short-term leases of 100 days or less, where no lease renewal or extension can occur.

(4) Renewals of existing leases in target housing in which the lessor has previously disclosed all information required by the Act and where no new information has come into the possession of the lessor.

Each contract to sell or lease target housing must include an "attachment" that contains specific disclosure and acknowledgment elements. Check with an attorney for details.

The Residential Lead-Based Paint Hazard Reduction Act requires sellers and their agents to retain a copy of the completed disclosure and acknowledgment contract attachment (discussed above), for 3 years from the completion date of the sale. Similarly, lessors and their real estate agents are required to retain a copy of the completed lease or attachment for 3 years from the commencement of the lease period.

Churches may be legally liable for injuries caused by persons who purchase or rent church-owned residential property and who are poisoned by lead-based paint.

Case study. A New York court ruled that a church was not legally responsible for the injuries sustained by a 3-year-old child who suffered lead poisoning when she swallowed lead-based paint while residing in a church-owned home. A church owned a two-story residence that it leased to a community center that made emergency short-term housing available to families in need. A mother and her three young children moved into the home, and the youngest child sustained injuries from lead poisoning as a result of lead that she swallowed while residing in the home. A public health agency later inspected the home and found lead paint, which it ordered the church to remove. The victim's mother sued the church, arguing that her daughter's injuries had been caused by the church's negligence in maintaining a dangerous condition on the premises. The court noted that for the mother to prevail, she had to prove not only that a dangerous condition existed, but also that the church had notice of the condition for a sufficient length of time to have remedied it. The church claimed that it had no knowledge of any hazardous lead or lead paint condition prior to notification from the public health agency, and therefore it could not be liable on the basis of negligence. It rejected the mother's claim that the existence of stained glass windows and chipped and peeled paint constituted notice of a lead hazard. The mother's lawsuit did not seek damages from the church on the basis of a violation of the Residential Lead-Based Paint Hazard Reduction Act. This was probably due to unfamiliarity with the law. However, this case illustrates that lessors also may be liable on the basis of negligence for injuries to children who consume lead-based paint while living in a church-owned residence.[184] Alexander v. Westminster Presbyterian Church, 719 N.Y.S.2d 457 (N.Y. 2000).

Caution. Be sure to consult with an attorney concerning your rights and potential risks regarding exposure to lead-based paint when buying, selling, or leasing property.

This section has addressed the federal Residential Lead-Based Paint Hazard Reduction Act. Many state and local governments have enacted their own regulations addressing lead-based paint hazards, and it is important for church leaders to consider the application of these additional regulations whenever they buy, sell, or lease property.