Numerous changes and clarifications to New York City (NYC) and New York State lead-based paint (LBP) laws for residential properties are coming into effect in 2024 and 2025. These provisions relate to a statewide rental registry for residences constructed before 1980, testing common areas in NYC buildings, and enhanced turnover remediation requirements in NYC. As covered in a previous SPR Blog post, these changes will be enforced through enhanced audit and recordkeeping requirements. Landlords should pay particular attention to changes in NYC's LBP laws because recent common area testing requirements went into effect on June 8, 2024 and enhanced turnover requirements will go into effect September 1, 2024.
Effective June 8, 2024, Local Law 111 of 2023 clarifies that owners of residential rental buildings constructed before 1960—as well as those constructed before 1978 where the owner has actual knowledge of the presence of LBP—must test the common areas of the building using the same one-time x-ray fluorescence (XRF) procedures that already apply to inside apartment units under Local Law 31 of 2020.
Landlords and property managers should take note that under NYC law, "common area" is defined as any part of a building "that is not within a dwelling unit and is regularly used by occupants for access to and egress from any dwelling unit within such multiple dwelling." This means that the obligation to test common areas under Local Law 111 does not extend to other areas typically considered "common" such as laundry rooms, gym facilities, and boiler rooms. Instead, the requirement is limited to regular means of ingress and egress from apartments, like hallways, stairwells, and elevators.
However, stakeholders are encouraged to consult with an attorney to assess the impacts and intersection of NYC's laws with federal LBP laws, such as the distinct definition of "common areas" under federal regulations, when federal testing or inspection requirements apply, and what disclosure obligations property owners will have under EPA's LBP Sale and Lease Disclosure Rule as a result of test results generated under Local Law 111.
Effective September 1, 2024 and applicable to pre-1960 buildings, Local Law 123 of 2023 requires certain measures currently applicable upon unit turnover to be implemented even if turnover has not occurred. Existing laws obligate property owners to perform the following work prior to a rental unit being reoccupied after a vacancy: i) remediate all LBP hazards and underlying defects in the painted surface, such as rotting wood, crumbling plaster, or rusting metal; ii) make all bare floors, window sills, and window wells smooth and cleanable; iii) remove or permanently cover all LBP on all friction surfaces on all door components; iv) remove, replace, or permanently cover all LBP on all friction surfaces on all window components; and v) conduct such work using safe work practices and dust wipe clearance testing.
Under Local Law 123, the obligations to remediate LBP on door and window friction surfaces will apply sooner for units where a child under six years old (CU6) resides, even if turnover has not occurred. Instead, these door and window friction surface remediation obligations will apply at whichever occurs soonest: i) turnover; ii) by July 1, 2027 for apartments where a CU6 already resides as of January 1, 2025; or iii) within three years after a CU6 begins to reside in the unit. This means that owners of CU6 units will be obliged to complete the traditional turnover task of remediating LBP on door and window friction surfaces, even if the CU6 units have not turned over. Although owners already have an obligation to annually inspect CU6 units and remediate any LBP hazards detected, including friction surfaces, Local Law 123 may increase penalties for owners by making such conditions a turnover violation as well.
Lastly, the New York State Legislature passed an amendment to the Public Health Law, adding Section 1377 (Section 1377). Signed into law by Governor Hochul on May 3, 2023 as part of the 2023-2024 State budget bill, Section 1377 constitutes a sweeping change in the statewide regulation of LBP. Section 1377 directs the Department of Health (DOH) to develop a registry of all residential buildings outside of NYC, which: i) include two or more units; ii) were constructed before 1980; iii) are located within a "community of concern" as determined by DOH; and iv) are currently rented or "potentially eligible for rental."
Once listed on the registry, the property owner must undergo a certification process every three years, verifying to DOH and the local health department that the registered building has been inspected for and is free of LBP hazards. Any properties that do not pass inspection would have to undergo abatement of LBP hazards and be reinspected until they are certified as LBP hazard free. Although Section 1377 directs DOH to draft regulations specifying the required elements of an inspection and qualifications for inspectors, Section 1377 already states that such an inspection "shall, at a minimum, include visual inspections for deteriorated paint and outdoor soil conditions, as well as the collection of dust wipe samples . . . ."
In connection with the passage and enforcement of Section 1377, not only are there civil penalties for not filing the certification, but the Legislature also amended Section 381 of the Executive Law to make Section 1377 compliance a part of the Uniform Fire Prevention and Building Code. To this end, the law charges the Department of State (DOS) with developing regulations that will make Section 1377's inspection and certification process "a condition to issuance of a certificate of occupancy or certificate of compliance following a periodic fire safety and property maintenance inspection . . . ."
As of this writing, DOS and DOH have not proposed draft regulations for public comment. However, the law will not take effect until November 3, 2025, with the obligation to conduct inspections taking effect on May 3, 2026 and the first round of certifications due October 1, 2026.
SPR will closely monitor these developments, which may shed light on issues such as what constitutes a "community of concern," whether New York State will promulgate a definition of "LBP hazard" that matches federal or NYC definitions, and what specific requirements apply to the certification process discussed above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.