With increased science comes increased knowledge; therefore, more information becomes available every day about potential home environmental problems. Martha's Vineyard real estate buyers should be aware of such things as water quality, radon, mold, lead paint, asbestos and UFFI. The obvious way these problems are detected is from a structural and systems home inspection. [Be sure to read our article "Why you need a Home Inspection"] Most homes that are tested reveal no major environmental problems, but if a problem is discovered, the key is to intelligently evaluate the test information and know what to do to remedy the problem. A structural home inspector is not generally capable of rendering conclusive judgement or mitigation sollutions for all environmental issues. However, the inspector may be able to detect the existance of environmental problems in which case we would consult with an expert in that particular area for an opinion on how to proceed.

The U.S. Environmental Protection Agency (EPA) has a search tool that will provide you with access to environmental data and awareness of environmental activities such as the location of heightened pollution or hazardous waste sites, the location of watersheds, or Ultraviolet (UV) index forecasts for The Community Where You Live.

Sorcecard.org can provide you with a Pollution Report Card about all sorts of polution topics concerning the air and water quality in your area.

MASSACHUSETTS NEW CARBON MONOXIDE LAW:
WHAT HOMEOWNERS NEED TO KNOW

On March 31, 2006, all homes in the Commonwealth equipped with fuel burning equipment that produces carbon monoxide or had indoor parking (a garage) adjacent to living areas were required to have Carbon Monoxide detectors installed. The law, and the regulations that implement it, apply to ALL Martha's Vineyard homes and not just those that are being sold.

Below are some frequently asked questions by homeowners:

What is carbon monoxide (CO) and how is it produced in the home?
Carbon monoxide (CO) is a colorless, odorless, poisonous gas. Appliances fueled with natural gas, liquefied petroleum (LP gas), oil, kerosene, coal, or wood may produce CO. The federal government estimates that over 500 people in the United States die unintentionally every year from CO. Thousands people go to hospital emergency rooms for treatment for CO poisoning.

As a Homeowner in the Commonwealth, what do I need to do to comply with this new law?
As it stands today, post March 31, 2006 you must install a carbon monoxide detector on every level of your home, excluding unfinished basements, attics and crawl spaces. Detectors that are installed on levels of the home which contain sleeping areas must be placed within ten feet of the bedroom door; therefore some homes may require more than one detector on certain levels. The Mass.Gov website for the Executive Office of Public Safety (EOPS) as a section with all sorts of information pertaining to Carbon Monoxide Safety.

What kind of Carbon Monoxide Detectors must I install in my home & how should I install a Carbon Monoxide Detector?
The current law provides a choice to homeowners to install either battery operated, plug-in with battery back-up, wireless detectors, a combination smoke/carbon monoxide detector, or hard-wired detectors. These detectors must be in compliance with Underwriter Laboratories (UL) standard 2034. The package the detector is sold in will indicate whether it meets this standard. CO alarms should be installed according to the manufacturer's instructions.

Placement of Carbon Monoxide Detectors is Important
Proper placement of a carbon monoxide detector is important. If you are installing only one carbon monoxide detector, the Consumer Product Safety Commission (CPSC) recommends it be located near the sleeping area, where it can wake you if you are asleep. Additional detectors on every level and in every bedroom of a home provides extra protection.

Homeowners should remember not to install carbon monoxide detectors directly above or beside fuel-burning appliances, as appliances may emit a small amount of carbon monoxide upon start-up. A detector should not be placed within fifteen feet of heating or cooking appliances or in or near very humid areas such as bathrooms.

When considering where to place a carbon monoxide detector, keep in mind that although carbon monoxide is roughly the same weight as air (carbon monoxide's specific gravity is 0.9657, as stated by the EPA; the National Resource Council lists the specific gravity of air as one), it may be contained in warm air coming from combustion appliances such as home heating equipment. If this is the case, carbon monoxide will rise with the warmer air.

Note: There are specific requirements for combination alarms, before purchasing one please review the requirements of combination alarms with your local fire department. Like its inspections for smoke detectors, the local fire department is required to inspect each dwelling for compliance with the carbon monoxide law before sale. To read the entire regulation as of 12-6-06, follow this link: 527 CMR 31.00: Carbon Monoxide Alarms . I understand these regulations may be changing again.

We plan to build a new home, are there additional requirements for new construction? Are there any other laws I should know about?
The state building code will govern additional requirements for new construction. It is believed that it will require hardwired carbon monoxide detectors for new construction or for homes who undergo substantial renovations. More information about the state building code may be obtained by reviewing the Massachusetts Building Code 7th Edition. Currently, there are certain plumbing regulations which may require a hard-wired CO detector to be installed with certain appliances. For more information check with the plumber who completes your installation. It is possible that your local city or town might have enacted stricter requirements, therefore you should check with your local fire department.

So why do I have to worry about it?
Over a period of years, exposure to Radon gas can have a significant and detrimental effect on your health. Radon is the second leading cause of lung cancer in the United States. (Click here to learn more about Radon)

Lead Paint
Martha's Vineyard homes built before 1978 are pretty certain to contain lead based paint both inside and outside. Look at all those beautiful antique Captain's Houses that grace our down Island towns. Many of them have been de-leaded, but generally if the lead based paint is in good condition, not cracking or peeling, it is not a hazard. If the condition is hazardous, the paint will need either to be removed or encapsulated in such a manner so as to eliminate the hazard. This can be a very costly process so make sure you investigate it thoroughly. The National Lead Information Center (NLIC).

Under Under Massachusetts and Federal law, and as stated as follows on the CHILDHOOD LEAD POISONING PREVENTION PROGRAM (CLPPP) PROPERTY TRANSFER LEAD PAINT NOTIFICATION package, Form 94-3, “This form is to be signed by the prospective purchaser before signing a purchase and sale agreement or a memorandum of agreement, or by the lessee-prospective purchaser before signing a lease with an option to purchase for residential property built before 1978, for compliance with federal and Massachusetts lead-based paint disclosure requirements.” Sound clear to you? I believe the wording has led to some confusion and oversight on the part of real estate licensees. That does not mean that the real estate licensee merely hands the Buyer a blank form; the Seller portion has to have been filled out by the Seller first.

If a Buyer is preparing to make an ‘Offer To Purchase’ for a house constructed prior to 1978, that Offer is a legally binding contract, as is the ‘memorandum of agreement’ associated with foreclosure purchase and sales and will legally obligate the Buyer to the terms of the purchase agreement. Therefore, the Buyer must have received CLPPP Form 94-3 prior submitting the Offer To Purchase with the Seller portion completed and signed by the Seller. The Buyer and the buyer’s agent will then complete the Purchaser’s or Lessee Purchaser’s Acknowledgement portion and the Agent’s Acknowledgement portion of the form and then return it simultaneously with their Offer To Purchase to the Seller or the seller’s Agent.

A question that comes up frequently about the signing of the Lead Paint disclosure form is, when someone is buying a home, is it OK for the buyer to sign a blank lead paint form and submit it with the offer?
The answer is, no it is not. The lead paint form must be completed and signed by the seller and the listing broker before it is signed by the buyer. The purpose behind the law is to ensure that the seller has disclosed any information he may have, or lack thereof, regarding the presence of lead paint in the premises. The buyer’s signature on the form acknowledges receipt of that disclosure by the seller. When a buyer signs a blank form he is incorrectly acknowledging a disclosure he has not actually received yet.

Furthermore, it is clearly stated in the Offer to Purchase, under Representations and Acknowledgments, when the purchase involves a house built prior to 1978, the real estate licensee is responsible for providing the Buyer with the Lead Paint disclosure form. This is a disclosure of condition that the Seller is making and the Buyer is acknowledging. Failure to comply is an actionable offense.

There is also an EPA pamphlet, Protect Your Family From Lead In Your Home, that must also have be given to the Buyer prior to offering an agreement that will legally obligate the Buyer.

Here is a Q&A that I have adapted from an NAR publication. See how you do.

Question: Sellers and Lessors must comply with the federal lead-based paint disclosure regulations for "target housing," which is residential property constructed prior to what year?

Answer: January 1, 1978
The federal lead-based paint disclosure regulations apply to residential sale or lease of properties built before 1978.

Question: In a residential sale transaction subject to the federal lead-based paint disclosure regulations, the disclosure requirements must be satisfied by whom?

Answer: Sellers and any listing agents they hire to market the property.
Sellers, as well as any listing agents hired by the sellers to market the property, must comply with the federal lead-based paint disclosure requirements. The regulations require buyer's agents to comply if they are compensated by the sellers or seller's agents, but not if they receive no compensation from the sellers or listing brokers.

Question: Almost all of the provisions of the federal lead-based paint disclosure regulations call for lead-based paint disclosures to be made to both purchasers and lessors of target housing. Which provision of the federal regulations requires that the following information be disclosed only to purchasers?

Answer: Information about the opportunity to have the property tested for lead-based paint.
Sellers (or their agents) must inform purchasers that they have a right to a “Risk Assessment” period of up to 10 days to have the property tested for lead-based paint hazards, although sellers also may agree to waive or shorten that time period. This right to have the property tested for lead-based paint hazards does not apply to lessees in lease transactions. On the Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards the requirements set forth in A, B, and D apply in both sales and lease transactions.

Question: The federal lead-based paint disclosure regulations require that sellers (or their agents) provide lead-based paint disclosures to purchasers and lessees in what time frame?

Answer: Before the purchaser or lessee is obligated under a contract for sale or lease.
Purchasers or lessees must receive the lead-based paint disclosures before they become obligated under a contract for sale or lease, which generally occurs when the contract or lease is signed.

Question: The federal lead-based paint disclosure regulations require sellers (or their agents) to provide to purchasers a lead-based paint information pamphlet published by which agencies?

Answer: EPA/HUD, or by a state or local health agency that contains comparable information approved by EPA/HUD.
Sellers (or their agents) must distribute the "official" EPA/HUD pamphlet titled “Protect Your Family From Lead In Your Home”, or a comparable one prepared by a state and approved by the EPA/HUD.

Question: In addition to providing purchasers or lessees with the lead- based paint information pamphlet, what other lead-based paint disclosures regarding a residence must sellers (or their agents) also provide?

Answer: Any known lead-based paint or lead-based paint hazards, as well as copies of all available records or reports regarding lead-based paint or lead-based paint hazards.
Only known lead-based paint or lead-based paint hazards, and all records and reports of lead-based paint or hazards related to the property being sold or leased, must be provided.

Question: The lead-based paint "Warning Statement" prescribed in the federal disclosure regulations and required to be included in sales contracts and leases reminds purchasers/lessees that properties built prior to 1978 may have lead-based paint present and reminds them of the health hazards associated with lead-based paint, especially to children and expectant mothers. It reminds sellers/landlords of their duty to provide information about lead-based paint hazards affecting the property. Can this Warning Statement be revised?

Answer: The Warning Statement may not be revised.
Question: Are existing state or local lead-based paint requirements and disclosure obligations preempted by the federal lead-based paint disclosure regulations?

Answer: They are not preempted by the federal lead-based paint disclosure regulations. Furthermore, they are in full force and effect notwithstanding the federal regulations.
The federal regulations expressly state that nothing in them relieves sellers, lessors, or agents from complying with any and all state or local laws, ordinances, codes, or regulations governing notice or disclosure of lead-based paint or lead-based paint hazards.

Question: Do all residential properties built prior to 1978 have to comply with the federal lead-based paint disclosure regulations?

Answer: No. Properties sold at foreclosure need not comply.
Foreclosure sales of residential property are exempt from the federal lead-based paint disclosure regulations, but a subsequent resale by the purchaser in a foreclosure sale is not exempt. Housing for the elderly or persons with disabilities is exempt unless any child younger than 6 years old resides or is expected to reside there. Short-term rentals, such as vacation rentals, are exempt, but only if they are for a period of 100 days or less. Lease renewals on the same terms and conditions also are exempt, but only if the disclosure requirements had been previously satisfied, such as at the time when the property was initially leased.

Question: What are the penalties for failure to comply with the federal lead-based paint disclosure regulations?

Answer: The penalties include both civil penalties of as much as $11,000 per violation and also up to three times the actual damages to any person injured as a result of the violation. But a violation does not affect the validity of the underlying real estate transaction in addition to the financial penalties. A violation of the disclosure requirements can't affect the underlying real estate sale or lease, or any deed, mortgage, or other instrument involved in the transaction.

And here is another published information piece that appeared in the Bay State Realtor® magazine. This one might be easier to digest.

Legal Q&A: Lead Paint Transfer Form, Little Things Mean (and Cost) a Lot
Published 11/2/2011 in MAR Bay State Realtor® magazine

While the Massachusetts Property Transfer Lead Paint Notification and
Certification Form has been around for years, it is surprising how many experienced and well-meaning agents make mistakes in completing this form.

Mistakes may be simple, honest errors, but the consequences can be expensive: under federal law, sellers and real estate agents who fail to meet the requirements for compliance can face a civil penalty of $1,000 under state law and $10,000 under federal law per violation. In fact, there have been instances where personnel from HUD and the EPA have conducted audits of brokers’ files and found them to be lacking in terms of compliance requirements.”

The following are a few helpful tips for completing the form to avoid problems down the road.

When you get the listing, get the lead form signed, too.
Arguably the easiest and best time to get the lead paint form completed by the seller is when they are signing the listing agreement. No broker should consider a file to be complete on a transaction for a home built before 1978 unless it has the Property Transfer Form completed and signed by the seller. Virtually all MLS’s in Massachusetts now allow participants to upload documents when the new listing is placed in the MLS. This makes the completed form accessible to all MLS members 24 hours a day, seven days a week.

Initial where it says, “Initials,” and Check…
One of the things that the field staff from the federal government looks for in the “in-office” audits of a firm’s closed transactions is compliance with the specifics of the form. This means that sellers “check” the boxes that are applicable to them and buyers and agents initial the sections applicable to them. It also means if lead inspections are done on the property, they are attached as well. Remember— failure on these simple issues can cost the firm thousands.

The agent must inform the buyer and seller of their obligations under the lead paint law.
The form also requires brokers to tell sellers of their obligations for disclosure and notification and verbally inform buyers of their obligations to bring a property into compliance if a child under the age of six resides there. The agent working with the seller is expected to inform the seller and sign the form for that purpose; the agent working with the buyer, and thus verbally informing them of their responsibilities, must sign for that purpose. If one agent does both jobs (sells their own listing without a co-broker), then only the one agent’s signature would be correct.

Don’t forget the address.
You would be surprised how many agents forget to do this! That’s it.
“Compliance with the requirements of the lead paint form may not be particularly time consuming, but the consequences for not completing these
steps can be.”

NEW LEAD PAINT RENOVATION, REPAIR AND PAINTING RULE: As of April 22, 2010, a new Renovation, Repair and Painting (RRP) rule and Federal law is in effect that requires all Martha's Vineyard home contractors engaged in renovation repair or paint projects disturbing more than a 6-foot area previously painted with lead-based paint to be certified and licensed. They must follow specific work practices to prevent lead contamination including containing the work area, minimizing dust and thoroughly cleaning up the work area. You can learn more about lead paint hazards and safeguards by going to the EPA's Lead Awareness Program.

LEAD PAINT RPR UPDATE:
House Appropriations Committee Votes to Block EPA Lead Paint Regulations

On July 13, 2011, the House Appropriations Committee approved the 2012 budget for the Department of Interior and the EPA, sending the bill to the full House for consideration. During the bill’s consideration, the Committee voted to add an NAR-supported amendment by Rep. Rehberg (R-MT), to prohibit the implementation of controversial lead paint Renovation, Repair and Painting (RRP) rules until the EPA meets its obligations under the statute and provides the requisite information and equipment for businesses to comply. NAR, along with a broad coalition of regulated industry sectors, sent a letter to the House Appropriations Committee supporting this Amendment.