The DirtLaw Blog

Realtors(R), Homebuyers & Homeowners & Investors - new EPA rules on lead paint may affect your sale.

Effect April 22, 2010, the EPA issued a rule requiring the use of lead-safe practices and other actions aimed at preventing lead poisoning. Under the rule, beginning April 22, 2010, contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination.

EPA requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 homes, child care facilities and schools be certified by EPA and that they use certified renovators who are trained by EPA-approved training providers to follow lead-safe work practices. Individuals can become certified renovators by taking an eight-hour training course from an EPA-approved training provider.

BOTTOM LINE: If you have painter, handyman repairs, remodel work on your house (residential real estate, commercial building with a child care service, daycare, school or afterschool program) that could disturb the old paint, your vendor, repair person or general contractor may need to do comply with the EPA rule requiring them to be CERTIFIED to use lead-safe work practices and follow these three simple procedures:

• Contain the work area.
• Minimize dust.
• Clean up thoroughly.

WHAT DOES IT MEAN IN A PURCHASE OR SALE OF A BUILDING:  Anyone who had some work done in the last six weeks since April 22, 2010 should disclose that there was work performed and whether or not the vendor, painter or general contractor was EPA certified.

The Residential Remodel - Working with general contractors who are unlicensed

There has a been a recent flurry of cases in California courts awarding homeowners disgorgement of all fees paid to general contractors (under B&P Section 7031).  In cases like White v. Cridlebaugh, 175 Cal. App. 4th 1535 - 2009 and Oceguera v. Cohen, there were technical defects with the general contractor's license--ie, the general contractor had been licensed at one time, but failed to adhere to the guidelines or insurance to remain licensed.  In the case of Wright v. Isaak, the general contractor had lost his license due to willful underreporting of his employees and failure to maintain worker's compensation insurance for the employees (while billing the unsuspecting homeowner for labor!).

In the recent case of Alatriste v. Cesar's Exterior Designs, Inc., the case actually addressed the issue of the homeowner actually knowing that the general is unlicensed.  The court concluded that the statute is very clear--it didn't matter that the homeowner knew that the general was unlicensed, the general contractor still had to disgorge all payments (including costs) of the job.

It strikes me that in previous case law, there was discussion of the legislative intent to protect consumers from unlicensed contractors, and that before even evaluating whether the contractor could make a showing of unjust enrichment the courts would evaluate whether the general was licensed at the time of negotiating the contract with the homeowners.  The obvious reasoning being the homeowner should not be misled by the general's licensed status at the time of contracting.  However, if the homeowner knows the contractor is not licensed in California, negotiates a lower price as a result, getting "handyman" rates, then should the homeowner retain the right to then seek disgorgement when the relationship goes south? Seems inequitable, and perhaps an unintended gap in the legislation.