Lead paint, radon and do-not-call rules
Some disclosures are required by law no matter what the parties want. Two come up in almost every Florida residential deal: lead-based paint for older housing and radon gas for every building sale or rental.
Lead-based paint (pre-1978 housing)
The federal rule comes from 42 U.S.C. 4852d and is carried out by matching HUD and EPA regulations (24 CFR part 35, subpart A and 40 CFR part 745, subpart F).
Target housing is housing built before 1978. Two kinds of housing are left out (35.86): housing for the elderly or persons with disabilities, unless a child under 6 lives there or is expected to, and 0-bedroom dwellings such as studios and efficiencies.
What the seller or landlord must do
Before the buyer or tenant is obligated under the contract (35.88):
- Give an EPA-approved lead hazard pamphlet, such as Protect Your Family From Lead in Your Home.
- Disclose any known lead-based paint or lead-based paint hazards.
- Provide any available records or reports.
The contract must include a lead disclosure attachment with the Lead Warning Statement, the seller's disclosure, a list of records provided, the buyer's acknowledgment, and signatures with dates (35.92). Sellers and agents keep a copy for 3 years after the sale closes.
The 10-day inspection opportunity
A buyer must be given 10 days to have a risk assessment or inspection done, unless the parties agree in writing to a different period. The buyer may also waive the opportunity in writing (35.90). Tenants do not get this 10-day period.
The law does not require the seller to test for or remove lead paint. It requires disclosure.
Exempt transactions (35.82)
- Sales at foreclosure
- Leases of housing certified lead-based paint free
- Leases of 100 days or less with no renewal or extension
- Renewals of existing leases where disclosure was already made and nothing new is known
The agent's role
An agent must tell the seller or landlord about these obligations and make sure they are met (35.94). An agent who did so is not liable for lead hazards the seller knew about but hid from the agent.
Florida radon disclosure
Fla. Stat. 404.056(5) requires a radon gas notice on at least one document, form or application signed at or before the time a sales contract is signed or a rental agreement is executed, for any building. Rentals of 45 days or less in transient lodging are excluded.
The required notice, in substance, says:
- radon is a naturally occurring radioactive gas that, if it builds up in a building in enough quantity, may present health risks to people exposed to it over time;
- radon levels above federal and state guidelines have been found in Florida buildings;
- more information on radon and radon testing is available from the county health department.
The statute sets out the exact wording, so licensees use the statutory text on their forms. Like the lead rule, it is a notice, not a testing requirement.
Do-not-call rules
Cold calling for listings is telephone solicitation. FCC rules under the Telephone Consumer Protection Act (47 CFR 64.1200) say:
- no solicitation calls to homes before 8 a.m. or after 9 p.m., local time where the person called is;
- no solicitation calls to numbers on the national do-not-call registry, unless an exception such as an established business relationship applies;
- an established business relationship lasts 18 months after a purchase or transaction and 3 months after an inquiry or application;
- a request to be put on the company's own do-not-call list must be honored within a reasonable time, no more than 10 business days.