For rental inspection programs that inspect for all housing hazards, best practice is to include all rental housing.
- Example: Rochester, New York: Their inspection program covers all housing, focuses on health, safety and blight, and is triggered by a complaint, neighborhood survey, a referral, or an application for Certificate of Occupancy.
For rental inspection programs addressing only lead hazards, best practice is to include all housing built before 1978.
- To support limiting rental inspections to homes built before 1978, your ordinance should include a presumption that all pre-1978 housing contains lead paint.
- Philadelphia has included a rebuttable presumption that all rental housing was built before March 1978.
EXEMPTIONS: Many ordinances will exempt certain properties from inspections. In anticipation of legal challenges, the ordinance should explain the purpose of the inspection program and why exempting these properties will still accomplish the program’s goals.
Common exemptions:
- Owner-occupied: Rochester, New York exempts single family owner occupied
- Homes that have had full lead abatement: Cleveland, Ohio
Use Caution if considering these exemptions:
- Public Housing: Philadelphia’s 2002 lead law exempted units owned or subsidized by the Philadelphia Housing Authority and housing leased under the federal Department of Housing and Urban Development’s Housing Choice Voucher Program. Exempting public housing is a bad idea because studies show that children are still poisoned in public housing.
- Dormitories: Philadelphia’s lead law certification requirement exempts college dormitories.
- Apartment complexes: LAWSUIT: Toledo was sued because its lead law only applied to rental buildings with 4 or fewer units; landlords claimed the restriction was unconstitutional. The lower court agreed with the landlords and held the city could not enforce the law. The appeals court disagreed and upheld the restriction, but Toledo changed the law anyway to cover all residential rental properties and family child care homes built before 1978.
AVOID:
- Exempting housing unless children under 6 reside in the unit is not recommended.
- LAWSUIT: Massachusestts is facing a lawsuit alleging that that state’s lead policy, which only applies to housing where children under 6 reside, violates the Fair Housing Act.
- Philadelphia had a similar policy but removed the exemption beginning October 1, 2020.
- New York City passed a law in February 2020 requiring that every pre-1960 apartment where a child resides be checked for lead hazards within five years by an inspector. It is unclear how the city will obtain information about where children reside and what to do when children move from one unit to another where no child had previously resided. If that unit is not tested for five years, a child residing in the home could still be poisoned as a toddler.
| TOTAL UNITS: Once you select which housing you will be inspecting, it is important to count how many total units will be covered by the policy. This number, combined with your testing frequency, will determine the funding and staffing needed to support the program and will likely guide the decision of whether the inspections will be performed by government staff or third party inspectors. |
