Federal Lead-Based Paint Disclosure Rules for Home Sales

If you sell a home in the Rockford area that was built before 1978, federal law requires you to complete a set of lead-based paint disclosures before the buyer is bound by the contract. You give the buyer an EPA-approved pamphlet, disclose any lead-based paint or hazards you know about, hand over any records or reports you have, offer the buyer a 10-day window to test for lead, and sign a disclosure attachment that you keep for no less than 3 years. The rule does not require you to test the home or remove anything. It requires you to share what you know, in writing, at the right moment. Homes built after 1977 are not covered, and a few kinds of sales, such as foreclosure sales, are exempt.

This guide walks through what the federal rule says, step by step, using the text of the regulation itself. It is not legal advice. The rule is enforced by federal agencies, and your real estate attorney is the right person to confirm how it applies to your sale.

Where the rule comes from

The federal lead-based paint disclosure rule is written in two places that say the same thing. The Environmental Protection Agency publishes it at 40 CFR part 745, subpart F. The Department of Housing and Urban Development publishes a matching version at 24 CFR part 35, subpart A. Both implement the same federal law, 42 U.S.C. 4852d, and both set the same duties for sellers and landlords: disclose known lead-based paint, provide records, provide the pamphlet and give buyers a 10-day evaluation opportunity.

The reason the rule exists is simple. EPA says lead-based paint for use in homes was banned in the U.S. in 1978, but it is still present in millions of homes. EPA also says lead-based paint is usually not a hazard if it is in good condition. Paint that is peeling, chipping, chalking, cracking or damaged is a hazard and needs prompt attention. The disclosure rule makes sure a buyer hears what the seller knows about that paint before signing.

Which homes the rule covers

The regulation uses the term target housing. Under 40 CFR 745.103, target housing means housing constructed prior to 1978, with exceptions that the definition lists, including most zero-bedroom dwellings such as efficiencies and studio apartments. EPA describes the reach of the rule this way: it applies to most pre-1978 private housing, public housing, federally owned housing and housing receiving federal assistance.

The first question for any seller is therefore the year the home was built. EPA lists housing built after 1977 among the housing the Disclosure Rule does not cover. If your home was built in 1978 or later, the federal lead disclosure steps described here do not apply to your sale. If it was built before 1978, plan on completing them.

If you are not sure of the build year, confirm it before you list, because the disclosure steps have to happen before the buyer is bound, not after.

Sales and leases the rule does not cover

Even for a pre-1978 home, a few transactions fall outside the rule. Under 40 CFR 745.101, the rule does not apply to:

• sales at foreclosure,
• leases of housing that a certified inspector has found to be lead-based paint free,
• short-term leases of 100 days or less with no renewal or extension, and
• lease renewals where the landlord already made the disclosures and has no new information.

Notice that the lead-free exemption in that list is written for leases. For a sale of a pre-1978 home, the regular disclosure steps still apply. If you are unsure whether your transaction fits one of these exemptions, ask your real estate attorney before you skip any step.

What a seller has to do before the contract is signed

The core of the rule is in 40 CFR 745.107. It says the disclosure steps must be completed before the buyer is obligated under any contract to buy target housing. In plain terms, the buyer should have everything in hand before signing. Here is what the seller provides.

1. The EPA-approved pamphlet

Under 40 CFR 745.107(a)(1), the seller must give the buyer an EPA-approved lead hazard information pamphlet. The regulation names one by title: Protect Your Family From Lead in Your Home (EPA #747-K-94-001).

2. What you know about lead in the home

Under 40 CFR 745.107(a)(2), the seller must disclose any known lead-based paint or lead-based paint hazards in the home. The seller also discloses the details that go with that knowledge, such as the basis for the finding, where the lead-based paint is and the condition of the painted surfaces. If you have never had the home tested and know of no lead-based paint, the disclosure form lets you say that you have no knowledge of it.

3. The same information to your agent

Under 40 CFR 745.107(a)(3), the seller must also disclose to each agent any known lead-based paint or hazards, along with any records or reports about them. This matters because the agent has duties of their own under the rule, covered below.

4. Records and reports

Under 40 CFR 745.107(a)(4), the seller must give the buyer any available records or reports on lead-based paint or hazards. In a building with common areas, that includes records about the common areas. If an earlier owner had the home inspected and you have the report, it belongs in the buyer's hands.

What the rule does not require

The regulation is clear that disclosure is not the same as testing. Under 40 CFR 745.107(a), nothing in the disclosure section requires the seller to conduct any lead evaluation or reduction work. A seller who has no records and knows of no lead-based paint meets the rule by saying so in writing, giving the pamphlet and offering the buyer the chance to test.

When the disclosure comes after an offer

Timing trips up some sales. Under 40 CFR 745.107(b), if any disclosure step happens after the buyer has made an offer, the seller must complete it before accepting the offer. The seller must also let the buyer review the information and possibly amend the offer. The simplest way to avoid that situation is to have the pamphlet, your disclosure statement and any records ready before the home goes on the market, so they can travel with every offer package.

The buyer's 10-day window to test

Under 40 CFR 745.110(a), the seller must give the buyer a 10-day period to conduct a risk assessment or inspection for lead-based paint or lead-based paint hazards. The parties can agree in writing on a different period. EPA says a homebuyer concerned about possible lead-based paint may hire a certified inspector to conduct a lead-based paint inspection.

The buyer does not have to use the window. Under 40 CFR 745.110(b), a buyer may waive the opportunity to conduct the risk assessment or inspection by saying so in writing. Either way, the choice is recorded on the disclosure attachment described next.

For a seller, the practical point is that the inspection opportunity is part of the contract terms. Your purchase contract and its lead attachment should state whether the buyer takes the 10-day period, agrees to a different one in writing or waives it.

The disclosure attachment: what it contains

Under 40 CFR 745.113(a), each contract to sell target housing must include an attachment, written in the language of the contract. It contains:

• a Lead Warning Statement, using wording the regulation sets out,
• the seller's statement disclosing known lead-based paint or hazards, or saying the seller has no knowledge of any,
• a list of any records or reports the seller has provided, or a statement that none are available,
• the buyer's acknowledgment that they received that information and the pamphlet,
• the buyer's statement that they either received the inspection opportunity or waived it,
• when agents are involved, a statement that the agent informed the seller of the seller's obligations and knows the duty to ensure compliance, and
• the signatures of the sellers, agents and buyers, with the dates they signed.

The Lead Warning Statement is fixed language set out in the regulation. You do not write your own version, and your attorney or agent can confirm the form you sign includes it word for word.

Giving the disclosures electronically

If you sign online, note that EPA says disclosures given electronically must include a clear statement of the right to receive paper documents, and the buyer or renter must consent to receiving the forms electronically. Confirm those pieces are part of your package.

Keeping the signed copy

The paperwork does not end at closing. Under 40 CFR 745.113(c), the seller and any agent must keep a copy of the completed sale attachment for no less than 3 years from the completion date of the sale. A simple habit is to store the signed lead attachment with your closing documents, so it is easy to find if anyone asks for it later.

What the agent is responsible for

The rule gives real estate agents their own duties. Under 40 CFR 745.115(a), each agent must inform the seller of the seller's obligations and ensure the seller has completed the required steps, or personally ensure compliance. So when a home was built before 1978, your agent has a duty of their own to bring the lead disclosure into the sale.

The rule also protects an agent who does that part of the job. Under 40 CFR 745.115(b), an agent who informed the seller of these obligations is not liable for lead-based paint information the seller knew but did not disclose to the agent. For sellers, the takeaway is that telling your agent everything you know about the home's paint is part of how the rule is meant to work. You can read more about the broader duty to share known problems in our guide to Illinois agent duties to disclose material facts.

What happens if the rule is not followed

The penalties are written into the regulation. Under 40 CFR 745.118, a person who knowingly fails to comply is subject to civil monetary penalties. That person is also jointly and severally liable to the buyer for 3 times the damages the buyer incurred.

The rule is written so that compliance is mostly paperwork done at the right time. A seller who gives the pamphlet, discloses what they know, shares records, offers the inspection window and signs the attachment before the contract is binding has done what the federal rule asks.

How the federal rule fits with Illinois disclosures

The federal rule is not the only disclosure in an Illinois home sale. Under 40 CFR 745.119, the federal rule does not relieve a seller, landlord or agent of any state or local laws on lead notice or disclosure. In other words, the federal lead steps sit alongside your state paperwork, not in place of it.

Illinois has its own seller disclosure report, with its own questions and its own exemptions. Our guide to the Illinois seller disclosure report in Rockford walks through that form, and if you are selling a pre-1978 home without making repairs, our guide to selling a home as is in Illinois explains which disclosures still apply. A real estate attorney can confirm how the federal and state requirements line up for your particular sale.

Lead can also reach a home through water pipes, which is a separate question from paint. If you want to check that side of an older Rockford home, see what the city's public inventory shows in our guide to Rockford lead service lines.

A seller's checklist for a pre-1978 home

Here is the federal rule as a short checklist, in the order a sale usually runs:

1. Confirm the year the home was built. If it is 1978 or later, these federal steps do not apply.
2. Check whether your sale is one of the exempt transactions in 40 CFR 745.101, such as a foreclosure sale. If you are not sure, ask your attorney.
3. Gather any lead inspection reports, risk assessments or other records you have, including records about common areas.
4. Tell your agent what you know about lead-based paint in the home, and share those records.
5. Have the EPA-approved pamphlet ready to give every buyer.
6. Complete your disclosure statement, or state that you have no knowledge of lead-based paint.
7. Offer the buyer the 10-day inspection window, a different period agreed in writing, or accept a written waiver.
8. Sign the lead disclosure attachment with the buyer and agents before the contract is binding.
9. Keep the signed copy for no less than 3 years after the sale closes.

Your next step

If you plan to sell a home built before 1978, look up the build year and pull together any lead records you already have. With those two things in hand, you are ready to complete the disclosure attachment. When you are ready to list, Gambino Realtors is ready to help you with the process, and your agent can make sure the lead paperwork is part of the package from the start.

Frequently asked questions

What are the federal lead-based paint disclosure requirements for a home sale?

For a home built before 1978, the seller must give the buyer an EPA-approved pamphlet, disclose any known lead-based paint or hazards, provide available records and reports, offer a 10-day window to test, and sign a disclosure attachment before the contract is binding. The seller and any agent keep the signed copy for no less than 3 years.

Does the rule apply to a home built in 1978 or later?

No. EPA lists housing built after 1977 among the housing the Disclosure Rule does not cover. The rule's definition of target housing is housing constructed prior to 1978.

Do I have to test my home for lead before I sell it?

No. Under 40 CFR 745.107(a), nothing in the disclosure section requires the seller to conduct any lead evaluation or reduction work. You disclose what you know, share any records and let the buyer test if they choose.

Can a buyer skip the 10-day lead inspection?

Yes. Under 40 CFR 745.110(b), a buyer may waive the opportunity to conduct a risk assessment or inspection by saying so in writing. The parties can also agree in writing on a period other than 10 days.

Is a foreclosure sale covered by the lead disclosure rule?

No. Under 40 CFR 745.101, sales of target housing at foreclosure are among the transactions the rule does not cover.

How long do I keep the signed lead disclosure?

Under 40 CFR 745.113(c), the seller and any agent must keep a copy of the completed sale attachment for no less than 3 years from the completion date of the sale.

What if I learn about lead after the buyer makes an offer?

Under 40 CFR 745.107(b), the seller must complete the disclosure before accepting the offer and let the buyer review the information and possibly amend the offer.