Court of Appeals Uncaps Landlord Liability Protection
In October 2011, many of our clients at North Star Realty asked me what the increased risk was to them after the severance of the liability protection in the Lead Risk Housing Act occurred. Below is a summary I’d previously researched and wrote which can serve as a guide for your policies and procedures as a Landlord. It was originally prepared on February 1, 2012.
RE: The Maryland Court of Appeals Declares Immunity Provisions of the Reduction of Lead Risk in Housing Act Unconstitutional. An overview and summary of the case is below followed by comments by the Head of Enforcement Division of MDE.
Brief Analysis of the Case
On October 24, 2011, in the case of Jackson v. Dackman Co. et al. (Md. App., 2011), the Court of Appeals of Maryland held that the immunity provisions of the Reduction of Lead Risk in Housing Act (“the Act”), which provide compliant landlords with qualified immunity from tort liability under specified circumstances, violate Article 19 of the Maryland Declaration of Rights (“Article 19”).
Impact of the Court’s Decision
The impact of the Court’s decision is that owners, authorized agents of owners and property managers are at an increased risk for liability resulting from an alleged injury or loss caused by the ingestion of lead by a person at risk. In other words, an affected person may sue an owner for an injury or loss and recover an amount exceeding $17,000 which was the maximum amount payable under the Act and is no longer applicable.
The Maryland Department of the Environment (“MDE”) issued a notice stating that the Lead Poisoning Prevention Program was not impacted by the ruling. Therefore, all laws requiring property owners to register pre-1950 properties and obtain lead inspection certificates remain in effect. The MDE intends to continue the regulatory program. Property owners should continue to comply with all of the requirements of the Act. Property owners who “opt-in” to the program can continue to do so. As with pre-1950 properties, qualified immunity from tort liability no longer exists. **NOTE: As of January 2015, this has now been extended to any property built before 1978.
Continuance of registration and performance of the risk reduction activities at each change in occupancy may assist in the demonstration of due care on the part of the property owner. Owners, authorized agents and property managers dealing with affected properties are urged to consult with their attorney to determine the appropriate course of action.
Practically speaking, how does a property owner/agent protect themselves?
Comments from Jonathan Klanderud, Head of Enforcement Division of MDE
The ruling severed the limited liability protection. The standard of care requirements are still in place and enforceable, property owners and agents would be wise to continue the registration process.
No two cases are the same, and any potential legal action and rulings are based on their own individual merits. The best protection is Certified Lead free. If that is not possible, then be sure to obtain risk reduction certificates for new tenants. Neither provides 100% liability protection, but they prove ownership has met the standards and requirements before occupancy. It is then the tenant’s responsibility to notify the owner or agents of any deficiencies. Document everything!
Any affected persons making a claim and show an occupant with an Elevated Blood Level (EBL) triggers a requirement for a new test within 30 days. If property is cleared, then the child may have gotten lead from another source, such as from a toy, day-care providers home or another home.
Documentation serves as evidence in defense of an owner or agent if a claim were to occur. The best protection is to comply with the laws during their time of ownership of the property. Provisions in the Annotated Code of Maryland are made for prior lead ingestion:
- Subtitle 8 – Reduction of Lead Risk in Housing, Section 6-830 – Presumption of prior lead ingestion
Refer to the following for more information:
- SUMMARY OF OWNER RIGHTS AND RESPONSIBILITIES
- “STANDARD OF CARE”
- AMENDMENTS TO MARYLAND’S LEAD LAWS, EFFECTIVE JANUARY 1, 2012
- UPDATE: Lead Rental Property Registry Update for 2015
Other remedies to provide possible landlord protections:
Possible Remedy for Maryland Landlord Lead Paint Liability Protection: Unlimited landlord liability for possible lead paint hazards may stifle investment after a recent ruling where the Maryland Court of Appeals declared immunity provisions of the 1994 Reduction of Lead Risk in Housing Act unconstitutional. Under this ruling, limited liability was severed, and the balance of the law remains in effect. Concerns of decreased investment by housing providers have prompted proposal of Maryland House Bill 472 and Senate Bill 873 to provide some liability protection for landlords. Read Baltimore Biz Journal Article.