If you’re selling a Southern California house built before 1978, you need to address federal lead paint disclosure before the buyer becomes obligated under a purchase contract. Yes, you must disclose known lead-based paint and lead-based paint hazards, provide available records, and complete the required paperwork.
You don’t have to assume the house contains lead paint. And this federal rule doesn’t require you to test or remove it.
The distinction matters when you’re preparing disclosures or reviewing an offer. The obligation covers what you know, what records are available to you, and the buyer’s opportunity to investigate.
Does the federal rule cover your home?
The federal rule covers housing constructed before 1978 that meets its definition of “target housing,” subject to stated exceptions.
Under 40 CFR 745.103, that definition excludes certain housing for elderly people or people with disabilities and dwellings with no separate bedroom, unless a child younger than 6 resides or is expected to reside there. A dwelling with no separate bedroom has living and sleeping areas that aren’t separated, such as a studio.
The rule also has a transaction exception: sales of target housing at foreclosure are excluded under 40 CFR 745.101.
For a house covered by the rule, its construction date triggers the disclosure process. It doesn’t establish that lead paint is present. County records or the listing usually give the build year; ask your agent.
This is a federal requirement that applies in California. For the broader disclosure picture, see the California seller disclosure guide.
What do you have to disclose and deliver?
You must disclose known lead-based paint and lead-based paint hazards, provide available records and reports, and give the buyer an EPA-approved lead hazard information pamphlet.
40 CFR 745.107 also requires you to share additional available information about a known finding. That includes the basis for the determination, its location, and the condition of the painted surfaces. A brief statement that paint was found doesn’t replace those details when you have them.
The pamphlet can be the EPA document “Protect Your Family From Lead in Your Home,” EPA #747-K-94-001, or an equivalent approved by EPA for use in the state.
Available records can reach beyond the house’s interior. The rule includes records about common areas and, in multifamily housing, other units when the information is part of an evaluation or reduction of the housing as a whole.
Tell each agent about the known presence of lead-based paint or hazards and the existence of available records, too.
What if you don’t know whether there’s lead paint?
If you have no knowledge of lead-based paint or lead-based paint hazards, the required contract attachment must say so.
That statement is about your knowledge. It isn’t a finding that the home has no lead paint. A pre-1978 construction date alone doesn’t answer the question either.
The rule expressly says it creates no positive obligation for a seller to conduct evaluation or reduction activities. Under this disclosure rule, you aren’t required to test, remove paint, or make repairs.
You still need to deliver the pamphlet, provide any available records, and address the buyer’s inspection opportunity. Saying “unknown” doesn’t replace those steps. If you have a report, provide it even when you don’t have a separate personal conclusion about the paint.
Another older-home issue is covered in the polybutylene plumbing guide. Keep the lead disclosure question precise: what do you know, and what information is available to you?
When must disclosure happen?
The required disclosure activities must happen before the buyer becomes obligated under a contract to purchase.
That timing is central to 40 CFR 745.107. The buyer must receive the information while it can still inform the purchase decision, rather than receive it only after becoming obligated.
There’s also a specific instruction for an offer already in hand. If a disclosure activity occurs after the buyer makes an offer, you must complete it before accepting that offer. You must allow the buyer an opportunity to review the information and possibly amend the offer.
An offer doesn’t eliminate that review step.
When preparing a listing, gather the available lead records alongside your other disclosure materials. If you’re considering a pre-listing inspection, keep that decision separate from what this federal rule requires. The disclosure obligation doesn’t depend on your choosing to commission an inspection, and a general inspection decision doesn’t replace the lead paperwork or its timing.
Does the buyer have to inspect?
The buyer does not have to inspect, but you must permit the required opportunity for a lead risk assessment or inspection.
Under 40 CFR 745.110, the buyer receives a 10-day period before becoming obligated under a purchase contract. The parties can mutually agree in writing to a different period.
The buyer may also waive the opportunity by indicating that choice in writing. A waiver is the buyer’s choice; the rule doesn’t make an inspection mandatory.
Keep the inspection opportunity and disclosure duties distinct. A written waiver addresses the opportunity to investigate. You still have to disclose known information, deliver available records and the pamphlet, and complete the contract attachment.
For a buyer, the practical choice is whether to use the period to check for lead-based paint or hazards through a risk assessment or inspection. Review the seller’s disclosures and available reports when making that decision. If the proposed timing is unclear, ask your agent or an attorney before becoming obligated.
What belongs in the contract attachment?
The sales contract must include an attachment containing the warning, disclosures, acknowledgments, and certifications required by 40 CFR 745.113.
The attachment must be in the language of the contract. It needs the rule’s prescribed Lead Warning Statement, which warns that pre-1978 property may present exposure to lead. Use the required language.
It must also contain:
- The seller’s statement of known lead-based paint or hazards, or a statement of no knowledge, plus additional available information.
- A list of available records or reports delivered to the buyer, or an indication that none are available.
- The buyer’s acknowledgment of receiving the information and pamphlet.
- The buyer’s statement that the inspection opportunity was received or waived.
- When an agent is involved, the required statement about informing the seller and ensuring compliance.
Sellers, agents, and purchasers must sign and date their certifications that their statements are accurate to the best of their knowledge.
Check the completed attachment against the documents actually delivered. Its acknowledgments should describe what happened.
What do agents handle, and what happens if requirements are missed?
Each agent must ensure compliance, and knowing failures to comply can bring civil penalties and liability for damages.
Under 40 CFR 745.115, an agent must inform the seller of the obligations and ensure the seller performs the required activities, or personally ensure compliance. An informed seller still needs to share known information. If the agent has informed the seller of the seller’s obligations, the rule says the agent is not liable for a failure to disclose lead-based paint that the seller knew about but did not disclose to the agent.
Keep the finished paperwork. The seller and any agent must retain the completed attachment for at least 3 years from the sale’s completion date.
Section 745.118 provides liability equal to 3 times the buyer’s damages for knowing violations. A court may award costs and reasonable attorney and expert witness fees to a prevailing party suing for damages. The section’s listed civil penalty amount may not reflect inflation adjustments.
This is general information and not legal advice.
The short version
If you’re selling covered housing built before 1978, disclose what you know, deliver available lead records and the approved pamphlet, and complete the contract attachment before the buyer becomes obligated.
The buyer gets a 10-day opportunity for a risk assessment or inspection unless the parties agree in writing to a different period. The buyer may waive that opportunity in writing.
You aren’t required by this federal disclosure rule to test for lead, remove paint, or perform repairs. You are required to be accurate about your knowledge and the records available to you.
Before accepting an offer, check that the required information has been delivered and the buyer has had the required opportunity to review it. After the sale, retain the completed attachment for at least 3 years.
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Common questions
Do I have to test for lead paint before selling?
No. This federal disclosure rule does not require a seller to test, remove paint, or perform repairs. It requires disclosure of known lead-based paint and hazards and delivery of available records.
What if I don't know whether the home has lead paint?
The contract attachment must state that you have no knowledge of lead-based paint or hazards if that is accurate. You must still provide available records, the required pamphlet, and the buyer's inspection opportunity.
Does the buyer have to get a lead paint inspection?
No. The buyer receives a 10-day opportunity to conduct a risk assessment or inspection and may waive that opportunity in writing. The parties may agree in writing to a different period.
How long must I keep the completed disclosure attachment?
The seller and any agent must retain a copy for at least 3 years from the completion date of the sale.
