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Most people today are aware of the dangers of lead-based paint. Yet most landlords and tenants pay no attention to this hazard. Under Ohio law, a landlord has a duty to keep its property in a safe and habitable condition and a violation of this duty will result in the landlord being liable for damages to the tenant. However, a landlord will be excused from liability unless he or she knew or should have known of the factual circumstances which caused the unsafe or uninhabitable condition. As a result, Ohio courts look to whether a landlord had actual or constructive notice of a problem on the premises. Therefore, knowledge of whether or not your rental property contains lead-based paint is likely to be the primary determining factor for liability in lead-based paint litigation.
In the case of Lowery v. Ondrus, a tenant, on behalf of her minor son, brought suit against her landlord. The landlord purchased a residential property on Potter Street in Toledo, Ohio. The home was built in 1902. Sometime in October 1993, the tenant and her newborn son, and her son’s father, moved into 438 Potter Street and executed a lease agreement. As soon as the tenant moved into the property she noticed chipping paint in the interior of the home and was advised by the landlord that the problem would be resolved. Approximately one year after moving into the property, the tenant’s newborn son was diagnosed with elevated blood lead levels which continued to increase until the tenants vacated the property in 1995. The tenants acknowledged that they never provided notice to the landlord of the existence of lead in the property until after their son was diagnosed with lead poisoning. The trial court found in favor of the landlord finding the landlord had no notice of the lead paint hazard prior to the child’s diagnosis. On appeal, the 6th District Court of Appeals acknowledged that “notice that paint is chipping and peeling, by itself, is ‘not tantamount to notification of the presence of lead-based paint in the premises.’” Ultimately, the appellate court agreed the landlord was not liable due to a lack of notice.
The court of appeals distinguished several other cases which found a landlord “should have known” of the existence of the lead-based paint hazard in their property. The court found the cases inapplicable, as they involved real estate agents and long-time real estate investors. In sum, individuals with a number of real estate properties, involved in the real estate industry or construction industry are more likely to be held responsible for lead-based paint hazards no their property.
The best strategy for landlords and tenants alike is to always inspect the premises for chipping paint and test the paint to determine whether or not it contains lead. Any lead-based paint should be removed and treated by a professional. Taking action to remediate the lead-based paint is the only way to completely relieve a landlord from liability.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.