New requirements for landlords of certain targeted housing in Philadelphia have now been phased in, effective December 21, 2012, relating to new leases. “Targeted housing” is residential property built before March 1978. The new requirements apply to all targeted housing except for (a) dwelling units developed by or for an educational institution for the exclusive residential use and occupancy by that institution’s students, (b) buildings containing dwelling units all of which are leased only to students enrolled in a college or university degree program, (c) dwelling units owned or subsidized by the Philadelphia Housing Authority or its subsidiaries, or privately owned but currently leased under the Housing Choice Voucher Program, and (d) dwelling units in which children aged six (6) and under do not and will not reside during the lease term.

Under the new requirements, a landlord may not enter into a lease, other than a renewal lease, to rent targeted housing or a unit in targeted housing unless it provides the tenant a certification that the property is either lead free or lead safe, and the tenant acknowledges receipt by signing a copy of the certification. A valid certification that a property is lead safe must state that a certified lead inspector determined that the property or unit was free of any paint or other coating that is cracking, flaking, chipping, peeling, chalking, not intact or otherwise separating from the substrate of a building component, and that interior dust samples collected in compliance with EPA regulations were tested and found not to contain lead-contaminated dust.  Any corrective action taken in order to qualify the property for such certification must be performed in compliance with applicable laws. A certification that a property is lead safe must be based on an inspection no more than 24 months prior to the date a lease is entered into.  A certification that a property is lead free may be based on an inspection performed at any time prior to the date a lease is entered into.

Upon entering into a lease, the landlord must provide a copy of the signed certification to the City’s Department of Public Health, and written notice to the tenant advising it (i) to perform a visual inspection of all painted surfaces periodically during the lease term and (ii) that the tenant may inform the landlord of any cracked, flaking, chipping, peeling, or otherwise deteriorated paint surfaces. Upon receipt of any such tenant notification the landlord must promptly inspect and correct any defective conditions as required by the Philadelphia Property Maintenance Code and in compliance with other applicable laws (such as federal regulations relating to repair of lead paint surfaces).

Upon a City inspection for lead safety at any rental property for which a landlord has not provided the tenant the required certification, the landlord will be liable to the City for the costs of such inspection. Failure to comply also subjects a landlord to a fine of $2,000 per offense, with each day constituting a separate offense.

In addition, failure to comply with the new law can result in a tenant lawsuit to compel compliance by a landlord and corrective action to make property lead safe, damages for any harm caused by failure to provide a certification, punitive damages of $2,000, abatement and refund of rent for any period of occupancy without a required certification and attorneys fees and costs. In addition, a landlord is not permitted to collect rent during the period of non-compliance. 

To receive a housing inspection license, required to operate rental housing in Philadelphia, and upon the annual renewal of such license, each person must identify each unit in targeted housing in connection with which a new lease was entered into in the prior twelve months and certify that the above requirements regarding the provision of a lead safe or lead free certification to all new lessees in targeted housing, and regarding provision of written notification to all new lessees and correction of any defects after receipt of notice of same, have been complied with in connection with each such lease. A housing inspection license may be revoked based on the provision of a false certification.

The City’s Department of Public Health has cautioned that a landlord cannot refuse to rent housing, make it unavailable or falsely deny housing is available for rent when potential tenants have children. The City also cautions that landlords may not set restrictions on which children can share a bedroom.  

The above requirements are in addition to already existing landlord disclosure obligations relating to the actual or potential presence of lead-based paint, which remain unmodified.

For further information about the new requirement in Philadelphia, or for guidance about compliance options relating to lead paint disclosure, please contact Douglas Schleicher (dschleicher@klehr.com, 215-569-2795) or Julie Beddingfield (jbeddingfield@klehr.com, 215-569-1639).