Home Sellers and Buyers Beware!

Lead-based paint, asbestos, underground storage tanks, and water tainted with lead area all risks to be careful about and transparent with when buying or selling a home. (D_Townsend/Shutterstock)

Dear Monty: We will be selling our home in the spring. Our house was built in the early 1940s. It is a large three-story stone home in a historic district. The inspector did not mention two environmental-type items, asbestos and lead paint, which surprised me, as I suspect we have both. Do I have to disclose this to a buyer?

Monty’s Answer: Federal Lead-Based Paint (LBP) disclosure rules from the Environmental Protection Agency (EPA) require sellers of most residential housing built before 1978, including REO bank properties and for-sale-by-owner (FSBO) properties, to follow these procedures. No. 1: Disclose the presence of LBP. No. 2: Provide buyers and tenants with any available records or reports about any LBP present in the housing. No. 3: Provide buyers and tenants with a federally-approved LBP Hazard information pamphlet. No. 4: Ensure that offers to purchase and leases contain certain disclosures and acknowledgments. No. 5: Provide homebuyers with an opportunity to inspect for LBP.

The Penalty For LBP Noncompliance

The civil penalties for each violation shall be no more than $11,000 for violations occurring after July 28, 1997. Suppose a person knowingly or willfully violates the federal LBP law. In that case, the sanctions could include imprisonment for not more than one year and a fine of not more than $100,000 for each day of the violation. These laws apply to both homeowners and real estate agents nationwide.

How To Manage Other Environmental Disclosures

--Underground storage tanks (UST) with 1,100 gallons or less must be closed (usually removed) by a certified tank professional. Non-certified individuals can remove aboveground oil tanks in the basement or outside above ground. Wisconsin home sellers should contact the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) to learn how to close the tank lawfully. Consider using a certified tank professional.

--Asbestos: Wisconsin homeowners are not required to obtain asbestos certification when engaged in asbestos abatement activities in a single-family home. The primary suspect for asbestos is vermiculite insulation, which is assumed to contain asbestos. Other untested home components may contain asbestos, with metal, glass, wood and fiberglass being exceptions. If vermiculite is discovered during a home inspection, contact the Wisconsin Department of Health Services (DHS) at: www.dhs.wisconsin.gov/air/vermiculite.htm.

--Water tainted with lead has been a news story for some time. Lead is not a required disclosure in Wisconsin’s preapproved real estate forms. Unfortunately, real estate agents are not required to investigate whether a property’s water supply contains lead, according to the Wisconsin Realtors Association. This oversight means the seller will be responsible for the lead disclosure or failure to disclose. The only way to know if your water contains lead is to ensure the water test includes testing for lead. Be sure to have lead testing in the purchase agreement.

Caution: These comments are based on Wisconsin and federal (EPA) law. State laws in other states may be different. Agency titles may also be different. The chances of discovery of EPA violations are minimal if no one gets sick after taking ownership of a home where LBP is present. However, the opposite is true when someone gets sick from LBP. A summary from the EPA enforcement division in 2016 strongly suggests it is not worth the risk to hide or not investigate LBP.