24 C.F.R. § 35.86

Definitions

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The following definitions apply to this subpart.

The Act means the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. 4852d.

Agent means any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor, for the purpose of selling or leasing target housing. This term does not apply to purchasers or any purchaser's representative who receives all compensation from the purchaser.

Available means in the possession of or reasonably obtainable by the seller or lessor at the time of the disclosure.

Common area means a portion of a building generally accessible to all residents/users including, but not limited to, hallways, stairways, laundry and recreational rooms, playgrounds, community centers, and boundary fences.

Contract for the purchase and sale of residential real property means any contract or agreement in which one party agrees to purchase an interest in real property on which there is situated one or more residential dwellings used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.

EPA means the Environmental Protection Agency.

Evaluation means a risk assessment and/or inspection.

Foreclosure means any of the various methods, statutory or otherwise, known in different jurisdictions, of enforcing payment of a debt, by the taking and selling of real property.

Housing for the elderly means retirement communities or similar types of housing reserved for households composed of one or more persons 62 years of age or more at the time of initial occupancy.

Inspection means:

(1) A surface-by-surface investigation to determine the presence of lead-based paint as provided in section 302(c) of the Lead-Based Paint Poisoning and Prevention Act [42 U.S.C. 4822], and

(2) The provision of a report explaining the results of the investigation.

Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.

Lead-based paint free housing means target housing that has been found to be free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.

Lead-based paint hazard means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate Federal agency.

Lessee means any entity that enters into an agreement to lease, rent, or sublease target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations.

Lessor means any entity that offers target housing for lease, rent, or sublease, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations.

Owner means any entity that has legal title to target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations, except where a mortgagee holds legal title to property serving as collateral for a mortgage loan, in which case the owner would be the mortgagor.

Purchaser means an entity that enters into an agreement to purchase an interest in target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations.

Reduction means measures designed to reduce or eliminate human exposure to lead-based paint hazards through methods including interim controls and abatement.

Residential dwelling means:

(1) A single-family dwelling, including attached structures such as porches and stoops; or

(2) A single-family dwelling unit in a structure that contains more than one separate residential dwelling unit, and in which each such unit is used or occupied, or intended to be used or occupied, in whole or in part, as the residence of one or more persons.

Risk assessment means an on-site investigation to determine and report the existence, nature, severity, and location of lead-based paint hazards in residential dwellings, including:

(1) Information gathering regarding the age and history of the housing and occupancy by children under age 6;

(2) Visual inspection;

(3) Limited wipe sampling or other environmental sampling techniques;

(4) Other activity as may be appropriate; and

(5) Provision of a report explaining the results of the investigation.

Seller means any entity that transfers legal title to target housing, in whole or in part, in return for consideration, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations. The term “seller” also includes:

(1) An entity that transfers shares in a cooperatively owned project, in return for consideration; and

(2) An entity that transfers its interest in a leasehold, in jurisdictions or circumstances where it is legally permissible to separate the fee title from the title to the improvement, in return for consideration.

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.

TSCA means the Toxic Substances Control Act, 15 U.S.C. 2601.

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.

Notes of Decisions

Cited in 16 cases (1 in the last 5 years), 1999–2024 · leading case: Antwaun A. Ex Rel. Muwonge v. Heritage Mut. Ins., 596 N.W.2d 456 (Wis. 1999).

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Antwaun A. Ex Rel. Muwonge v. Heritage Mut. Ins., 596 N.W.2d 456 (Wis. 1999). · cites it 2× “103 (1999); 24 C.F.R. § 35.86 . The EPA requires all sellers of residential housing built prior to 1978 to attach the following statement to the contract to sell: Every purchaser of any interest in residential real property on which a residential dwelling was built prior to 1978…”

Roberts v. Hamer, 655 F.3d 578 (6th Cir. 2011). “103 ; 24 C.F.R. § 35.86 & Comment IV(C)(9). Thus, the regulation, which is a reasonable clarification of the statute, does not, as the Appellants contend, impermissibly narrow the class of “lessees” who have standing under Section 4852[d](b)(3), and the Appellants do not have…”

Mason Ex Rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005). · cites it 2× “103 ; 24 C.F.R. § 35.86 . The issue we must decide is whether Congress intended for the minor children of lessees to have standing to enforce this civil liability provision against landlords who violate the disclosure provision.”

Brown v. Maple3, LLC, 88 A.D.3d 224 (N.Y. App. Div. 2011). · cites it 2× “The regulations implementing the statute define “lessee” as “any entity that enters into an agreement to lease, rent, or sublease target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes,…”

LB III v. Hous. Auth. of Louisville, 345 F. Supp. 2d 725 (W.D. Ky. 2004). “” 24 CFR § 35.86 . 6 . This conclusion renders unnecessary a discussion of the effective date of the RLPHRA and whether Plaintiffs would have standing to assert a RLPHRA claim were it available to them.”

G.M.M. v. Kimpson, 92 F. Supp. 3d 53 (E.D.N.Y 2015). · cites it 2× “See 24 C.F.R. § 35.86 (“Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.”

Griffin v. Bruner, 793 N.E.2d 974 (Ill. App. Ct. 2003). “They argue that where, as here, the buyer’s agent receives compensation from the seller or his representative, the regulations under 24 C.F.R. § 35.86 (2002) make section 4852d(a)(4) applicable to such an agent.”

Flowers v. ERA Unique Real Est., Inc., 170 F. Supp. 2d 840 (N.D. Ill. 2001). “9064 , 9069) and regulation 24 C.F.R. § 35.86 indicate that a buyer’s agent, when paid by a seller’s agent through a cooperative brokerage agreement, is responsible for ensuring compliance under the Act.”

McCormick v. Kissel, 458 F. Supp. 2d 944 (S.D. Ind. 2006). “Additionally, the regulations promulgated in accordance with RLPHRA define lessee as “any entity that enters into an agreement to lease, rent, or sublease target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing…”

Cudjoe v. Dep't of Vets. Affairs, 426 F.3d 241 (3rd Cir. 2005). “” 24 C.F.R. § 35.86 . Interpreting this language, certain courts have held that non-lessee minor children may not sue under the Residential Lead-Based Paint Hazard Reduction Act because they are not purchasers or lessees.”

Felix v. Thomas R. Stachecki Gen. Contracting, LLC, 107 A.D.3d 664 (N.Y. App. Div. 2013). “Contrary to the plaintiffs’ contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to impose a duty on an agent or representative of a buyer (see 42 USC § 4852d [a]; Keegan v Downing Agency, Inc.”

Kearney v. Elias (D.N.H. 2008). · cites it 2× “" 24 C.F.R. § 35.86 . It is undisputed that the property in this case is "target housing" because it was built before 1978 and no exceptions apply.”

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