January 2024 Bulletin to Property Owners

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Dear Property Owners, 

Furthering our commitment to providing property owners information on their obligations under the law, the Department of Housing Preservation and Development (HPD) will be publishing a series of quarterly bulletins online and via email. Each bulletin will highlight one aspect of the law and is not meant to comprehensively cover all laws and rules that apply. This bulletin will be available in other languages on HPD’s webpage within the next two weeks, under the heading Briefings. 

This publication is intended for informational purposes only and is not intended as legal advice. This information is not a complete or final statement of all the duties of owners and tenants regarding laws and rules relating to housing in New York City.­­­­­­­­­­­­­­­

REMINDER: ANNUAL NOTICE DISTRIBUTION SHOULD HAVE BEEN COMPLETED BY JANUARY 15TH! 

See below for an upcoming webinar and more detailed information on the topic of notices, investigations and recordkeeping required.  HPD reminds property owners that failure to complete these proactive lead-based paint related activities can result in litigation and civil penalties under Local Law 1 of 2004.  We encourage you to review our sample documents and ensure that you have a reliable way to document your compliance with all of these requirements.

Upcoming Webinars

Lead-Based Paint Annual Notice and Recordkeeping: An Owner’s Guide to Compliance in NYC

Thursday January 25th, 2024, from 11:00am – 12:30pm 

In the next installment of our ongoing lead-based paint series for Owners, we’ll revisit two topics: Annual Notice and Recordkeeping.  Join us to learn the details of the City’s Annual Notice requirements, and to learn guidelines and tips for following the law by keeping records of ALL lead-based paint activity.  The Webinar will conclude by bringing the two topics together, using Annual Notice as a case study to provide a practical step-by-step demonstration of how an Owner can draw on HPD resources in order to document lead-based paint compliance.  Please register now (space is limited)

Registration Link: https://attendee.gotowebinar.com/register/8048046220112952672

Property owners must complete the following tasks every year:

Penalties may be significant for failure to conduct these activities and maintain these records.

Send out the Annual Notice to determine if there is a child under six routinely spending 10 or more hours each week (“residing”) in a dwelling unit. Between January 1 and January 16, owners of multiple dwelling built before 1960 (or between 1960 and 1978 if the owner has knowledge there is lead-based paint) are required to deliver an Annual Notice to each tenant and to collect the completed notice from the tenant by February 15.

  • The Annual Notice asks the tenant to disclose if a child under the age of six routinely spends 10 or more hours per week in a dwelling unit, which includes both a child who lives in the apartment and a child who just visits for this period of time.
  • The notice must be provided to the tenant in at least English and Spanish and in duplicate (two copies of each) so the tenant can retain a copy and return a copy to the owner. Make sure your tenants know where to return this notice.
  • Keep evidence that this notice was delivered and retain the completed notice received back from the tenant. This notice is important because it determines where the owner must do other required activities under Local Law 1, such as the annual investigation and following safe work practices for any work required under Local Law 1.
  • If the tenant does not return the completed notice by February 15, the owner must conduct follow-up inspections between February 16 and March 1 to attempt to determine if a child under six lives or routinely spends more than 10 hours per week in the dwelling unit. An owner must keep records of the attempts made to contact the tenant to perform the investigation.
  • If the owner does not receive the completed notice from the tenant and cannot determine based on these follow-up investigations whether there is a child under six, the owner must also notify DOHMH in writing that no notice has been received back from the tenant (a copy of this notification should also be maintained by the owner). The owner’s notification to DOHMH should be mailed to:

Department of Health and Mental Hygiene — Healthy Homes
125 Worth Street, Sixth Floor, CN58
 New York, NY 10013

Conduct the annual investigation

  • Once the owner knows which units have a child under the age of six residing in a unit, the owner must perform a visual investigation to look for potential lead-based paint hazards. This investigation must be conducted at least annually or more often if the owner knows about a condition that may cause a lead hazard, or if the occupant makes a complaint about such a condition.
  • You do not need to hire a professional to conduct your annual visual investigation. However, HPD highly recommends that whoever conducts this investigation take the online visual assessment training offered by the federal Department of Housing and Urban Development to help the person know what to look for. This investigation is a visual inspection looking for peeling paint, chewable surfaces (such as windowsills), deteriorated subsurfaces, friction surfaces (painted doors or windows) and impact surfaces. It must include every surface in every room in the dwelling unit, including the interiors of closets and cabinets. The person conducting the investigation should keep records about what they saw and HPD has created sample forms to assist with this investigation. See the Sample Forms for Annual Investigation Compliance
  • After the visual inspection is completed, the owner is required to give a copy of the inspection results to the tenant.
  • The owner must also do this visual inspection in any building common areas (such as a lobby, hallway, or stairwell) of the building where a child under the age of six resides.

Repair any deteriorated paint promptly using the appropriately certified contractor.

  • If there is peeling paint found on a surface where the owner has no documentation of the whether there is lead paint on the surface, the owner must presume that there is lead paint, and hire the appropriately certified contractor to complete the repairs safely and quickly or, (if you believe there is no lead in the paint because the wall is a new wall, for example) to test the peeling paint and keep documented evidence that the surface does not have lead.
  • To understand the qualifications that your contractor must have in order to perform the work that is needed, review the HPD Guide to Local Law 1 of 2004 Work Practices or Lead-Safe Work Practices: FAQ
  • All documents regarding any work done by the appropriate contractors must be maintained.

NEW LEAD-BASED PAINT LEGISLATION

New requirements regarding lead-based paint testing, lead-based recordkeeping and lead-based paint audits are now mandated as a result of recently passed legislation. Please review the below requirements carefully.

Owners will be required to:

  • Provide annual notice and investigation records whenever lead-based paint hazard or turnover violations are issued. The requirement (Local Law 122 of 2023) becomes effective on September 1, 2024.
  • Provide XRF testing records, which an owner is required to have, whenever a lead-based paint hazard or turnover violation is issued. This requirement (Local Law 122 of 2023) becomes effective in August 2025.
  • Conduct XRF testing of common areas by August 2025 or within Sixty days if an order (COTA) is issued by the NYC Department of Health and Mental Hygiene (whichever is sooner). Records of this testing must be maintained and submitted to HPD upon request. This requirement (Local Law 111 of 2023) becomes effective in June 2024.
  • If a child under six resides in a unit with presumed lead-based paint (in a multiple dwelling built prior to 1960) on January 1, 2025, the property owner must abate the lead-based paint on door and window friction surfaces, and remediate lead paint hazards, including making all bare floors smooth and cleanable, by July 2027 AND if a child under six comes to reside in a unit with presumed lead-based paint, after January 1, 2025, the property owner must abate the lead-based paint on door and window friction surfaces, and remediate lead paint hazards, including making all bare floors smooth and cleanable within 3 years of the date that the child comes to reside there. This requirement (Local Law 123 of 2023) becomes effective in September 2024.

HPD is required to:

  • Conduct a visual inspection of paint condition in a common area observed in the inspector’s line of travel when the inspector is in the building to complete a complaint-based lead paint inspection in a dwelling unit. This requirement (Local Law 111 of 2023) becomes effective in June 2024.
  • ·Add turnover violations as a criterion for selecting buildings for audit. Also, as part of the selection criteria for audits, consider the number of violations and data on the prevalence of elevated blood lead levels in certain geographic areas identified by the NYC Department of Health & Mental Hygiene (DOHMH). This requirement (Local Law 127 of 2023) becomes effective in September 2024.
  • Dismiss a record-keeping violation as corrected if the owner submits:
    •  the appropriate Dismissal Request form for such violation with the required consecutive 10 years of records, including such records for the year in which the owner is submitting the dismissal request; OR
    •  the appropriate Dismissal Request form for such violation with documentation demonstrating that the owner has kept the required records for a period of at least 3 consecutive years, including such records for the year in which the owner is submitting the dismissal request, and upon notification from HPD that such submitted documentation is sufficient, a payment of $1,000 for each year of the 10 years that the owner does not submit documentation. This requirement (Local Law 122 of 2023) becomes effective in September 2024

For more information about New York City’s Childhood Lead Poisoning Prevention Act (also known as Local Law 1 of 2004) and its requirements for rental property owners, visit: www.nyc.gov/lead-based-paint. HPD will be providing more details regarding all the above requirements on its website in the coming months.

Important: Lead-Based Paint Testing Requirement

A property owner must use an Environmental Protection Agency (EPA) certified inspector or risk assessor, independent of the owner or any firm hired to perform lead-based paint remediation, to test for the presence of lead-based paint (at a standard of 0.5 mg/cm2) in a dwelling unit or common area of a building built prior to 1960  by August 9, 2025 or within one year, for a dwelling unit in which a child under the age of 6 routinely spends 10 or more hours per week in such dwelling unit  (whichever is sooner). This requirement must also be met if the rental building was built between 1960 and 1978 and the owner has actual knowledge of lead-based paint.

Records of XRF testing must be maintained for 10 years.  HPD has created sample forms for an owner to document that the testing was properly completed: see the Sample Affidavit by Certified Individual Who Performed Lead-Based Paint Testing