B-245815 July 20, 1992

B-245815 July 20, 1992

MISCELLANEOUS TOPICS Housing/Community Development Low-income housing Court decisions Damages Lead-based paint Decision discusses results of cases brought against federal and local governmental entities by plaintiffs damaged as a result of purchasing or renting federally owned or federally assisted housing containing dangerous amounts of lead-based paint. Decision also discusses possible amendments to the Lead-Based Paint Poisoning Prevention Act. 42 U.S.C. Secs. 4821-4846.

The Honorable Harry Reid Chairman, Subcommittee on Toxic Substances, Environmental Oversight, Research and Development Senate Committee on Environment and Public Works

Dear Mr. Chairman:

In your letter of February 8, 1991, and subsequent discussions with your staff, we were asked to determine whether the Lead-Based Paint Poisoning Prevention Act, as amended (LPPPA), 42 U.S.C. Secs. 4821-4846, or any other federal statute, provides an adequate legal remedy for persons who, as a result of purchasing federally owned properties, are injured by federal agency noncompliance with such statutory requirements. In the event there is not an adequate statutory remedy, you asked us to identify and discuss possible statutory amendments that could be enacted to provide such a remedy.

In brief, the LPPPA provides no explicit right of action for money damages for private parties injured by the federal government's failure to comply with the LPPPA. Nor does it appear that there is an implied right of action for money damages under the LPPPA. On the other hand, the courts have upheld the rights of tenants to compel compliance by federal and local agencies with the requirements of the LPPPA.

Under the Federal Tort Claims Act, recovery of damages depends on the requirements of the applicable tort law of the state in which the action is brought. The federal government is not liable for punitive damages under the Federal Tort Claims Act.

Under the National Housing Act, HUD must make reasonable efforts to assure that houses secured by HUD-insured mortgages meet local ordinances relating to health and safety, including any requirements to abate lead paint. Those injured by HUD's non-compliance with those ordinances, however, are not entitled to money damages.

Finally, court decisions are split on whether HUD furnishes an implied warranty of habitability (and, consequently, is liable for the warranty's breach in the event the house has lead paint hazards) when it sells a house.

Enclosed is a detailed staff analysis of this issue. While we are not in a position to recommend that legislation be enacted to allow recovery of damages by injured parties when a federal agency does not comply with the LPPPA, we have included at the end of the staff paper draft language which would provide this kind of remedy. Under our usual procedures, this opinion will be available to the public 30 days from this date, unless you release it sooner.