USA: lead-based paint disclosure rules for homes built before 1978

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Kooky

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Lead-based paint for home use was banned in the United States in 1978, yet, as the Environmental Protection Agency puts it, the paint remains in millions of homes. That is why almost every sale or lease of an older American home carries one extra piece of paper: a lead disclosure, signed by everyone at the table. It is a federal requirement, so it applies in every state, and it binds three groups at once: the people who sell, the people who let, and the agents who work for them.

The rule is short, but its details matter. It says which homes are covered and which are not, what has to be handed over, at what moment, what the contract must say, how long the paper is kept and what a knowing breach can cost. This guide goes through those points in order, using the text of the regulation in the Code of Federal Regulations and the Environmental Protection Agency's own explanation of it. It describes the general federal rule only; how it applies to one transaction depends on the facts of that transaction and on any state or local law that sits on top.

Title 40 of the Code of Federal Regulations, part 745, subpart F, as read on 9 October 2026.

Where the federal rule comes from

The requirement sits in Title 40 of the Code of Federal Regulations, part 745, subpart F, headed "Disclosure of Known Lead-Based Paint upon Sale or Lease of Residential Property". The subpart states its own purpose: it implements section 4852d of Title 42 of the United States Code, part of the Residential Lead-Based Paint Hazard Reduction Act of 1992. The Environmental Protection Agency calls it the Real Estate Notification and Disclosure Rule.

Two agencies appear throughout the text. The definitions name both the Environmental Protection Agency and the Department of Housing and Urban Development, and the enforcement section refers to the Secretary of Housing and Urban Development. The Environmental Protection Agency says on its disclosure page that it enforces lead-based paint laws.

The rule is not new. According to section 745.102, it took effect on 6 September 1996 for owners of more than four residential dwellings and on 6 December 1996 for owners of one to four.

The regulation also defines what it is talking about. Lead-based paint means paint or other surface coatings that contain lead at or above 1.0 milligram per square centimetre, or 0.5% by weight. A lead-based paint hazard is wider than the paint itself: the definition covers any condition that causes exposure to lead from contaminated dust, contaminated soil, or paint that is deteriorated or present on accessible, friction or impact surfaces, where that exposure would result in adverse health effects. The Environmental Protection Agency's page makes the practical distinction: lead-based paint in good condition is usually not a hazard, while paint that is peeling, chipping, chalking, cracking or damaged is one and needs prompt attention.

Which homes count as target housing

The rule applies to what it calls target housing. Section 745.103 defines that as any housing constructed before 1978, with two exceptions: housing for the elderly or for persons with disabilities, and any 0-bedroom dwelling. Both exceptions fall away when a child under six lives in the home or is expected to live there. In that case the home is target housing again.

Each of those terms has its own definition. Housing for the elderly means retirement communities or similar housing reserved for households made up of one or more persons aged 62 or over at the time of initial occupancy. A 0-bedroom dwelling is a residential dwelling in which the living area is not separated from the sleeping area; the regulation lists efficiencies, studio apartments, dormitory housing, military barracks and rentals of individual rooms in residential dwellings.

A residential dwelling, in turn, is either a single-family dwelling, including attached structures such as porches and stoops, or a single-family dwelling unit in a structure that contains more than one separate unit, where each unit is used or intended to be used as a home.

The type of owner does not change the answer. The Environmental Protection Agency says the rule covers most private housing built before 1978, and also public housing, federally owned housing and housing that receives federal assistance.

The parties are defined broadly too. A seller is any entity that transfers legal title to target housing, in whole or in part, in return for consideration; the definition expressly includes a transfer of shares in a cooperatively owned project and, where the law allows it, a transfer of a leasehold interest. A lessor is any entity that offers target housing for lease, rent or sublease, and a lessee is any entity that agrees to lease, rent or sublease it. Section 745.101 confirms that subleases are inside the rule. A tenant who sublets an older apartment is therefore a lessor for this purpose.

The transactions the rule leaves out

Section 745.101 lists four kinds of transaction to which the subpart does not apply, even when the home was built before 1978.

Each exclusion is narrower than its label suggests. The short-term exclusion needs both halves: a lease of 100 days or less, and no possibility of renewal or extension. The Environmental Protection Agency gives vacation and other short-term rentals as its example. A 90-day lease that can be extended does not fit the wording of the exclusion.

The renewal exclusion depends on what happened the first time and on what the landlord has learned since. It applies only where the lessor previously disclosed everything section 745.107 requires and where no new information about lead-based paint or hazards has come into the lessor's possession. The regulation says that renewal includes both the renegotiation of existing lease terms and the ratification of a new lease. If a report has arrived in the meantime, the exclusion no longer fits and the disclosure is made again with the new information.

The lead-free exclusion rests on a finding by a certified inspector, not on the owner's belief. The text adds that a lessor may have further certified tests carried out to confirm or refute an earlier finding.

What a seller or landlord must hand over

Section 745.107 sets four duties. All four must be completed before the purchaser or lessee is obligated under any contract to buy or lease the home.

1. Provide an approved lead hazard information pamphlet. The regulation names the Environmental Protection Agency document "Protect Your Family From Lead in Your Home", or an equivalent pamphlet approved by the agency for use in the state concerned. The agency says the pamphlet is available in multiple languages.
2. Disclose to the purchaser or lessee the presence of any known lead-based paint or lead-based paint hazards in the home, together with any additional information available: the basis on which the presence was determined, the location of the paint or hazards, and the condition of the painted surfaces.
3. Disclose the same things to each agent, along with the existence of any available records or reports.
4. Provide the purchaser or lessee with all available records or reports about lead-based paint or hazards in the home.

The fourth duty reaches further than the unit being sold or let. In multifamily housing, it covers records and reports about common areas and about other dwellings in the building, when that information was obtained through an evaluation or a reduction of lead-based paint in the property as a whole. Common areas are defined as the parts of a building generally accessible to all residents, such as hallways, stairways, laundry and recreational rooms, playgrounds, community centres and boundary fences. A buyer of one apartment is therefore entitled to the whole-building report if the owner has one.

"Available" is a defined word. Records are available when they are in the possession of the seller or lessor, or reasonably obtainable by them, at the time of the disclosure.

The key word in the second duty is "known". The rule is about passing on what the seller or landlord knows and holds. A seller with no knowledge and no reports has a simple disclosure to make: a statement of no knowledge and a statement that no records exist. That statement is still required, in writing, in the contract paperwork described below.

Timing: before the buyer or tenant is bound

The whole rule turns on one moment: the point at which the purchaser or lessee becomes obligated under a contract. Everything in section 745.107 has to happen before then.

The regulation foresees the case where an offer arrives before the disclosure has been made. Under section 745.107(b), the seller or lessor must then complete the required disclosure before accepting the offer, and the purchaser or lessee must be given the opportunity to review the information and to amend the offer. The order is fixed: information first, acceptance afterwards.

For a sale, the sequence set by sections 745.107, 745.110 and 745.113 runs as follows.

When the condition is not met, the rule does not describe a remedy inside the contract itself. What it sets out are the consequences described further down: penalties, possible court orders and a claim for damages by the purchaser or lessee. Whether a late or missing disclosure affects the contract in any other way is a question the federal regulation does not answer.

The buyer's 10-day evaluation period

Section 745.110 gives purchasers something tenants do not get. Before a purchaser is obligated under a contract to buy target housing, the seller must permit a 10-day period in which the purchaser may have a risk assessment or an inspection carried out for the presence of lead-based paint or hazards.

The two terms are not the same thing. An inspection, as the regulation defines it, is a surface-by-surface investigation to determine whether lead-based paint is present, followed by a report explaining the results. A risk assessment is an on-site investigation into the existence, nature, severity and location of lead-based paint hazards. It includes gathering information on the age and history of the housing and on occupancy by children under six, a visual inspection, limited wipe sampling or other environmental sampling, and a report of the results. One answers the question "is the paint here?"; the other answers "is there a hazard, and where?". The regulation uses "evaluation" for either.

The 10 days are a default. The parties may agree in writing on a different period, and the Environmental Protection Agency confirms that this can lengthen or shorten it. The purchaser may also waive the opportunity altogether, again in writing. Whichever route is taken, it is recorded: the sales attachment must contain the purchaser's statement that the opportunity was either received or waived.

Tenants are in a different position. According to the Environmental Protection Agency, renters can ask their landlord or property manager for a certified paint inspection before signing a lease, but the rule does not require the landlord to provide one. A tenant's protection under the federal rule is the disclosure itself, the records and the pamphlet.

What the contract paperwork must contain

Section 745.113 turns the disclosure into a document. For a sale, each contract to sell target housing must include an attachment. For a lease, the same elements may sit in an attachment or within the lease itself. The Environmental Protection Agency publishes sample forms, a Seller's Disclosure of Information and a Lessor's Disclosure of Information, each in English and Spanish, which sellers and landlords may use.

A sale attachment therefore has seven elements and a lease has six; the difference is the evaluation period, which exists only for purchasers.

The Lead Warning Statement is fixed text set out in the regulation, and the two versions differ. The sale version tells every purchaser of an interest in residential property with a dwelling built before 1978 that the property may present exposure to lead from lead-based paint, that young children are at particular risk, that the seller must provide the information it holds from risk assessments or inspections, and that an assessment or inspection is recommended before purchase. The lease version is shorter. It opens with the words "Housing built before 1978 may contain lead-based paint", says that lead exposure is especially harmful to young children and pregnant women, and states that lessors must disclose known lead-based paint and hazards before renting and that lessees must receive a federally approved pamphlet.

The signatures do more than close the form. The sellers or lessors, the agents and the purchasers or lessees each certify the accuracy of their own statements to the best of their knowledge, and each signature carries its date. The dates are what later shows that the disclosure came before the obligation.

Language is covered as well. The regulation says the attachment is to be in the language of the contract, giving English and Spanish as examples, and the Environmental Protection Agency repeats that the warning statement must be in the same language as the rest of the contract.

What the rule asks of agents

Agents are not bystanders in this rule. Section 745.103 defines an agent as any party who enters into a contract with a seller or lessor, including any party who contracts with a representative of the seller or lessor, for the purpose of selling or leasing target housing. The Environmental Protection Agency's page addresses real estate agents and property managers together.

One group is left out of the definition: purchasers themselves, and any representative of a purchaser who receives all of their compensation from the purchaser. The test in the text is who the party contracts with and who pays.

Section 745.115 then gives agents two duties. First, an agent must inform the seller or lessor of their obligations under the three operative sections: the disclosure, the evaluation period and the contract paperwork. Second, the agent must ensure that the seller or lessor has performed everything the rule requires, or personally ensure compliance. The Environmental Protection Agency summarises this as a shared responsibility between the agent and the seller or lessor.

That is why the paperwork contains an agent's statement. When one or more agents are involved, the attachment must say that the agent has informed the seller or lessor of the obligations under section 4852d of Title 42, and that the agent is aware of the duty to ensure compliance. The agent signs and dates it like everyone else.

The rule also protects an agent from what the client kept back. Under section 745.115(b), an agent who has informed the seller or lessor of the obligations is not liable for a failure to disclose lead-based paint or hazards that the seller or lessor knew about but did not disclose to the agent. The protection is tied to the first duty: it is the act of informing the client that brings it into play.

A second protection covers the other side of the transaction. Under section 745.113(d), sellers, lessors and agents are not responsible when a representative of the purchaser or lessee, paid entirely by that party, fails to pass the disclosure materials on to them, provided that all the required persons have completed and signed the certification.

Keeping the records for three years

The signed paper does not go in the bin at closing. Section 745.113(c) requires the seller, and any agent, to keep a copy of the completed attachment for no less than three years from the completion date of the sale. The lessor, and any agent, keeps the completed attachment or the lease containing the same information for no less than three years from the commencement of the leasing period.

The two clocks start at different points, which is easy to miss. A worked example, with assumed dates: a sale completed on 15 May 2025 gives a retention period that runs at least to 15 May 2028. A lease signed on 20 February 2025 for a leasing period that begins on 1 March 2025 is counted from the start of the leasing period, so the paper is kept at least to 1 March 2028. The signing date of the lease is not the reference.

The regulation adds that this record-keeping period is not a time limit on anything else. It is not intended to place any limitation on civil suits under the Act, nor to affect the rights of a lessee or purchaser under section 4852d(b)(3) of Title 42. Three years is the minimum for holding the document, and no more than that.

Penalties and treble damages

Section 745.118 sets out what a breach can lead to, and it has several separate parts.

Any person who knowingly fails to comply with the subpart is subject to civil monetary penalties under section 3545 of Title 42 and part 30 of Title 24 of the Code of Federal Regulations. The Secretary of Housing and Urban Development may also take action in a federal district court to enjoin a violation.

Then comes the private claim. A person who knowingly violates the subpart is jointly and severally liable to the purchaser or lessee in an amount equal to three times the damages incurred by that individual. In such a civil action the court may also award court costs, reasonable attorney fees and expert witness fees to the prevailing party.

A worked example shows what the multiplier does. Assume a court finds that a purchaser incurred damages of US$15,000 as a result of a knowing violation. Three times that sum is US$45,000. The US$15,000 is an assumption made for the arithmetic, not a typical figure; damages are whatever the purchaser or lessee proves in the case. "Jointly and severally" means that each person found liable can be pursued for the whole amount.

Finally, a failure or refusal to comply with the disclosure, evaluation, paperwork or agent sections is a violation of section 4852d(b)(5) of Title 42 and of section 409 of the Toxic Substances Control Act, and violators may face civil and criminal sanctions under section 16 of that Act. The text of section 745.118(f) still prints the older ceilings: not more than US$10,000 per violation for violations on or before 28 July 1997, and not more than US$11,000 for those after that date. The eCFR notes that these amounts may not reflect inflation adjustments and points to section 19.4 of Title 40. That table, as read on 9 October 2026, lists US$22,263 for section 4852d(b)(5), for violations after 2 November 2015 where the penalty is assessed on or after 8 January 2025.

The Environmental Protection Agency says that sellers, landlords, agents and property managers who fail to give the required information may face penalties, and that anyone who did not receive the required disclosure for housing built before 1978 can report it to the agency.

State rules and electronic paperwork

The federal rule is a floor, not the whole building. Section 745.119 says that nothing in the subpart relieves a seller, lessor or agent from any responsibility to comply with state or local laws, ordinances, codes or regulations governing notice or disclosure of known lead-based paint or hazards. It adds that neither the Department of Housing and Urban Development nor the Environmental Protection Agency assumes responsibility for ensuring compliance with those state or local requirements. A state or a city may ask for more, and its own authorities deal with its own rules. This guide does not cover any of them.

The form of delivery has caught up with practice. The Environmental Protection Agency's page, last updated on 27 May 2026, sets conditions for disclosing electronically. The seller or landlord gives a clear statement of the right to receive the documents on paper, of the procedure and consequences for withdrawing consent, and of how to access and keep the electronic records. The buyer or renter must consent to electronic access, and must have full access to all the disclosure materials.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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