The heart of a Proactive Rental Inspection program is to require an inspection as a condition of renting a unit. There are several different ways communities have structured this requirement
Certificate of Compliance: Michigan cities Grand Rapids and Detroit both require a Certificate of Compliance. Detroit requires landlords to obtain a Certificate of Compliance before the property can be occupied, and the certificate must remain valid at all times while a property is occupied. Detroit’s Certificate of Compliance program requires annual lead inspections.
Certificate of Occupancy: Rochester, New York requires a Certificate of Occupancy for all structures that have residential rental units Before issuing or renewing a Certificate of Occupancy, the city conducts regularly scheduled visual inspections looking for compliance with local, state and federal code standards. This program has a lead inspection component and covers other housing hazards.
- Detroit’s Certificate of Compliance website warns: “If you have tenants in your property and do not have a valid Certificate of Compliance, your tenants may pay into an established escrow account rather than pay their rent directly to you as the owner. You will also face fines for not complying with state and local regulations.”
- South Bend, Indiana has adopted a Certificate of Rental Safety program. A rental with a Certificate of Rental Safety is in compliance with minimum housing standards as established by federal, state and local law. RSVP housing inspections identify hazards in the home that, once addressed, have been shown to reduce risks of lead poisoning, asthma, unintentional injuries, and other health problems. Inspections include a visual inspection for chipping or peeling paint.
Certificate of Inspection: Paterson, New Jersey requires a Certificate of Inspection before a new tenant moves in. If a unit is inspected twice in five years and it is determined that there is no lead paint in the components tested, the unit will be granted a five year Certificate of Inspection.
Lead-Free or Lead-Safe Certificate: Cleveland, Philadelphia, and Toledo all require landlords to obtain a lead-safe or lead-free certificate.
- Cleveland: “Lead-safe certification” means that the owner of a residential rental unit built before January 1, 1978 has provided to the Director a clearance examination report or lead risk assessment that indicates that lead hazards are not identified in the unit. A lead-safe certification is valid for two years from the date of the certification.
- Philadelphia: Philadelphia requires landlords to obtain a lead-safe or lead-free certificate. To obtain a lead- free certificate, a certified lead inspector must certify the unit was free of any deteriorated paint, and lead-contaminated dust. A lead-safe certificate lasts for 4 years. A lead-free certificate has no expiration date.
- Toledo: Toledo’s lead law requires landlords to obtain a lead-safe certificate. To obtain a certificate, the property must meet maintenance conditions demonstrating lack of deteriorated paint, lead dust or bare soil.
- LAWSUIT: Landlords sued challenging Toledo’s lead law in part because it required “owners” were required to obtain a lead safe certificate, but it used a broad definition of “owner” that included occupants of the unit. The court of appeals found the definition of owner “irrational, as no one would expect tenants to be responsible for obtaining inspections and for obtaining lead certificates for properties they do not own.” It appears the city did not intentionally determine that tenants should be responsible for obtaining lead certificates. Instead, when crafting the ordinance, the city used a definition of “owner” from the portion of the municipal code covering nuisances. (The ordinance says “Owner” has the same meaning as specified in Toledo Municipal Code Section 1726.01.” Section 1726.01 of the Toledo Municipal Code defines “owner” to include “any person who has care, custody, control or charge of a premises or part thereof.) This litigation teaches an important lesson that cities must craft their ordinance language carefully in order to avoid unintended consequences.
- Liability Concern: “Lead Safe” is a misnomer. If lead is still present in home unabated, it may present a risk to children. Some lead inspectors worry about whether they could be held liable if they inspect a dwelling and declare it “lead safe” and a child is later found to be lead poisoned. These concerns are particularly valid where there is more than a year or two between inspections. The longer the time period between the inspections, the greater the likelihood that interim measures have failed and residents are exposed to lead hazards.
Rental Registration or Licensing: Many communities couple a rental inspection requirement with a rental registration or licensing component. A rental registration requirement typically requires landlords to register their units and pay a fee for the registration. This helps cities identify where the rental housing stock is and which housing needs to be inspected. To aid with enforcement, cities should require designation of Local Contact Representative, or actual person with a physical address (or registered agent who can accept service of process). However, a rental registration requirement alone is not enough. A rental registration program merely identifies the universe of rental properties within a community. For an effective proactive rental inspection program, a community should couple rental registration with a method for requiring rental inspections, such as those listed above.
- Rental Registration–examples and pitfalls:
- Cleveland, Ohio requires owners who rent or offer to rent a dwelling or rooming unit (whether year-round, seasonal, weekly, or daily) to register annually with the Department of Building & Housing at a fee of $70 per dwelling or unit. The Certificate of Rental Registry can be revoked if dwelling is not in compliance with the housing code, including the requirement to obtain a Lead-Safe or Lead-Free Certificate.
- Baltimore’s rental registration and licensing program, which was modified in 2018, applies to all rental units, including one- and two-family dwellings, as well as multi-family dwellings. In order to receive a rental license from the Department of Housing and Community Development, the property must meet two requirements: 1) be registered with Department of Housing and Community Development using the online portal and 2) be inspected by a State Licensed, Baltimore City registered Home Inspector. In addition, the state of Maryland requires residential rental properties built before 1978 to be registered and then renewed annually with Maryland Department of the Environment. Maryland requires registered rental properties to be inspected by a lead inspector from the Maryland Department of the Environment.
- Kansas City, Missouri rolled its rental registration program into a Healthy Homes Rental Inspection Program in 2018. The program requires annual registration along with a $20-per-unit fee. Inspections under the program include a visual inspection for chipping and peeling paint, but not for lead dust or bare soil. Further, the inspection program is complaint-based, along with a number of random annual routine inspections.
- Detroit, Michigan established a rental registration requirement in 2017 that the city expected to be fully implemented within two years. Out of approximately 152,000 rental units in Detroit, fewer than 10,000 are registered. To incentivize compliance, the law allows tenants to pay rent into an escrow account instead of to the landlords. However, the local courts undermined the law by refusing to enforce this provision and instead allowed landlords to evict tenants who had used the provision.
- Lewiston, Maine has enacted a rental registration program that requires inspections, but not for lead. The law requires owners of all multi-family buildings with three or more residences to register their buildings, at no cost to the owner. In December 2018, Lewiston’s Ad Hoc Committee on Rental Registration recommended that the fire department should take the lead on proactive rental inspections and focus on housing issues related to fires (smoke and carbon monoxide detectors, acceptable building materials, and means of egress).
- Where cities struggle with rental registration compliance, cities can remedy the issue by prioritizing enforcement. Cities can hire rental registration “meter maids” to specifically search for noncompliance. These enforcement officers can search for rentals listed on Zillow, Craigslist, have signs out front, postal service data and cross-check the city’s rental registration system to identify non-compliant properties.
- Rental Licensing: Every rental in Minneapolis, Minnesota must have a rental license. The city assigns a tier to every rental property, and the tier determines its inspection cycle (every 1, 5 or 8 years) and fees. The tier is calculated using the property’s violation history and the condition of the structure. The city makes detailed property violation history information and rental license tiers available online. However, the rental inspection only includes a visual inspection for flaking, chipping or peeling paint, which is not best practice for lead primary prevention.
Making this Information Easily Accessible Online: Communities are recognizing the benefits of making rental registration and lead compliance information easily available online. Providing the lead status of a rental unit online provides a tool that helps renters to make an informed choice when they have a choice between rental units. Making this information public may also work to increase visibility of “bad actor” landlords who refuse to comply with the law and ideally to change their behavior and bring them into compliance. Some examples of public databases include:
- Rochester, New York maintains a Property Information website that includes, among other things, Code Enforcement details. Where a lead inspection has taken place, the information for a rental property will include the date the property was cleared under the law safe laws. Rochester’s lead law specifically requires the city maintain a database:
|The City shall maintain a database, accessible to the public, of all residential properties where lead hazards have been identified, reduced and controlled with funds received by the City from the United States Department of Housing and Urban Development which require that such a database be maintained. The City shall further maintain a database of all residential properties granted a Certificate of Occupancy after the effective date of this ordinance.
- Burlington, Vermont maintains a Rental Property Certificates of Compliance map-based database. For each rental dwelling, the database lists the number of units, the date a certificate of compliance was issued, and the date the certificate of compliance expires, as well as the date the information was last updated. Burlington uses a sliding-scale approach to the duration of the certificate of compliance, where a property with no violations gets a five-year certificate and a rental with 10 or more problems that are found and corrected would get a one-year certificate. The certificate of compliance inspection procedure requires compliance with Vermont’s Essential Lead Maintenance Practices.
- Lansing, Michigan makes information about rental units and their Certificate of Compliance status publicly available. However, the database, accessible through an Access-My-Gov website, is only searchable by entering a street address and not through a map view.
- Lewiston, Maine is in the process of creating a searchable rental database to operate as a type of “CarFax for rental units.” Carfax is a commercial website that provides the vehicle history to a prospective buyer. Lewiston is seeking to create an on-line registry for lead safe/lead free properties, which would be open to property owners who can provide certification that their property qualifies. The date on which the property was determined to be lead safe or lead free should also be recorded and available. This would provide a source of information to those seeking housing, particularly those with children, and for Lewiston’s general assistance clients.
Visual Markers of Compliance: While making rental compliance data available online is a good first step, not all renters have the time and means to search the internet for information about rental unit safety. Another approach that is gaining traction is using a visual sign on or in the unit to demonstrate compliance. Some experts are urging cities to require lead risk assessments and then to require those results to be posted prominently inside the unit. Others suggest an approach similar to car rental registration, where some states require cars to display registration status and expiration date on the car’s front windshield. Rental units could adopt a similar approach, with rental inspection stickers, color-coded by expiration date, posted in each unit’s window.
- Lansing, Michigan uses a “pink tag” system where the city will post on a rental unit’s window a “Notice to Vacate due to Lack of a Valid Certificate of Compliance.” The tags are intended to pressure landlords into bringing the units into compliance. While the pink tags serve as a warning to mark non-compliant buildings, Lansing uses red tags to indicate it is unsafe to enter a structure. The city will red-tag a unit if landlords fail to schedule inspections and pay fines within 30 days in order to obtain a valid rental certificate.