Howdee everyone,
Important Updates:
SB135, 2015 Lead Law Changes
&
HB309, Removal of Tenant's Property
are both still in what is called the enrollment process which means they are being reviewed by legislative services for typos missed commas etc.
Action items this week:
1. SB135, 2015 Lead Law Changes
Write to Governor if you choose.
Governor's office is 271-2121
You can e-mail the governor by going to the following website:
2. HB309, Removal of Tenant's Property
Write to Governor to urge her to pass this bill.
Hearings this week:
None scheduled so far.
Hearings next week:
None scheduled so far.
Further below is:
Bills Updated Status summary:
Full details on all bills above
(Which includes property owner position, contact info, talking points, and more)
Love & Light,
Nick Norman
Director of Legislative Affairs
==============================================
We only list the committee reports on the most important bills affecting the real estate business. If you want to get the committee report on one of the other bills contact me & I will show you how to get them on line. It’s not terribly hard to get but not straight ahead either.
SB135
Title: relative to lead poisoning in children.
Property Owner Position: For as amended by the Senate
House Status: CONFERENCE REPORT ADOPTED
Senate Status: CONFERENCE REPORT ADOPTED
HB309
Title: (New Title) permitting landlords to remove tenants’ property in certain circumstances and relative to the committee to study issues concerning parking for those with walking disabilities.
Property Owner Position: For
House Status: CONCURRED
Senate Status: PASSED / ADOPTED WITH AMENDMENT
==============================================
Full details on all bills above:
SB135, 2015 Lead Law Changes
06/17/2015 at 10:00 AM LOB 101
Title: Title: relative to lead poisoning in children.
Summary: NOTE: THIS INFORMATION HAS NOT BEEN UPDATED SINCE THE hOUSE AMENDMENT WHICH HAS MADE SEVERAL CHANGES THAT WE REQUESTED IN THE NOTES BELOW.
Section 1: Laboratory Reporting
Property Owner Position: Neutral
This section relates to having DHHS, Department of Health & Human Services track and report screening rates. That is how many children are being screened (asked questions) and or tested each year. The screening rates have always been way below long established state guidelines.
Landlords stand aside on the issue of screening so we have no position on this section.
Section 2: Capillary Blood Testing
Property Owner Position: For
“Capillary Blood Test” is what you might call a finger prick test that draws a few drops of blood as opposed to a venous test which actually draws blood from a vein using a needle.
Capillary blood tests are said to have less accuracy than a venous draw. Partly because the portable test modules are not as accurate as a sample sent to a lab and partly because the people operating the capillary test machines are not trained medical staff. Occasionally, lead on the persons finger ends up in the sample.
We have been a push for parents and landlords to receive ALL test results of ANY level. This is because earlier detection allows both family and landlord to take well thought out reasonable measures to prevent the lead exposure before an entire lead abatement order becomes issued if the level reaches 10ug/dl.
DHHS is extremely reluctant to take on the reporting responsibility for values below 5ug/dl ostensibly because of the expected enormous work load required and no budget for it. The have to find contact info for the landlord whereas the parent contact info is already on the reporting forms. Also past results show there would be about 1000/y reportings required at 5 and above. We don’t know how many reports would be required at less than 5. Presumably way more.
Note that the version passing the Senate committee adds a duty to the study commission to look at the issue of reporting results <5ug dl.="" span="">
This provision of section 2 advises the family to get a venous draw test so they get an accurate picture and eliminate “false alarms”. It also recommends that the tenant inform the landlord which is in part accomplishing what we have been asking for.
It further recommends the tenant contact the landlord rather than do anything regarding the lead hazards on their own. This moves again in a direction we have been asking for. It makes some movement toward solving the issue of tenants creating the lead hazards.
Section 3: Child Lead Screening
Property Owner Position: Neutral
This section stresses health care providers are responsible for screening for lead and to follow state guidelines. If they don’t meet the guidelines by 2017 then DHHS will adopt rules to require them to do so.
Landlords stand aside on the issue of screening so we have no position on this section.
Section 4: Property Owner Notification of Elevated BLL
Property Owner Position: For
The latest revision as the bill leaves the Senate committee is that landlords are only notified of venous draw tests and not capillary tests. This is a little watered down from the original bill where we would be notified of both venous and capillary test. (See below about DHHS’s resistance to the work load of giving these notices).
Something is better than nothing and presently we are not getting any notices in the range of 5-9.9ug/dl so this section is quite good for us in that when we are notified of low levels of lead we can work with the tenant family and be proactive at taking all precautions to eliminate the poisoning in a common sense way before it escalates to higher levels which will more greatly harm the child and trigger a lead abatement order. Many times the tenant family and the landlord can work together in a common sense way before an order is triggered and solve the issue easily before the extreme expense of an order is triggered.
The back ground for this is that there has been a request for DHHS to notify property owners and parents at ANY level. The thinking which we agree with is that the earlier everyone is notified the sooner everyone can take measures to be sure the child’s BLL does not rise and only goes down from here. DHHS wants to be able to give notice at any level but their old software system and some test methods are not as reliable when readings are <5ug actually="" an="" behind="" but="" class="" data="" dl="" does="" get="" have="" id="yui_3_16_0_1_1436022669212_37529" it.="" like="" not="" number="" says="" simply="" something="" span="" the="" they="" where=""> They are working towards a software change to update their systems and be able to accurately give notice at lower levels. We say why not just create a simple modern spreadsheet to hold the data. Almost anyone could do that in an hour’s time.
Because capillary testing at low levels is less reliable and because of the data complications expressed in the above paragraph, there is language like “the data is deemed reliable by the department”. When their systems are updated in the future this language allow them to report lower numbers with out having to make yet another change in the state law.
Also DHHS is extremely resistant to notifications below 5ug/dL primarily because they can not handle the work load. Part of the issue is the unreliability of capillary tests, (operators of test are often not medical staff and actually introduce lead to the skin surface before the pin prick is made).
Part of the issue, harder to solve, is the extra time spent for DHHS to find the owner of the property. There are about 1000 BLL levels reported per year from 5-10 ug/DL. Less than 5 is believed to be a much larger number.
All landlords we have spoken to are for this section.
Section 4: Parent Notification of Elevated BLL
Property Owner Position: For
This section is quite good for us as well in that when parents are notified of low levels of lead they will usually become proactive at taking all precautions to eliminate the poisoning before it escalates to higher levels which will more greatly harm the child and trigger a lead abatement order. Many times the tenant family and the landlord can work together in a common sense way before an order is triggered and solve the issue easily before the extreme expense of an order is triggered.
Notice that the parents get reporting of both capillary and venous testing while landlords only get notification of venous testing.
All landlords we have spoken to are for this section.
(Similar notes as section on Landlord Notification above).
Section 6: Civil Suits
Property Owner Position: Against
May be upgraded to Neutral if amended.
Technically, this section does not change the understanding of civil liability so we’re not sure why it is needed.
The Senate committee amendment does add a sentence to address the subsequent repairs concern. (Previously flagged as an issue).
We are suggesting the following change to the tenant responsibility side of this section.
Section 6: Civil Suits
130-A:18 Civil Suits. Owners and tenants of pre-1978 rental housing and childcare facilities shall take reasonable care to prevent exposure to, and the creation of, lead hazards. Notwithstanding any provision of law to the contrary, the mere presence of a lead base substance shall not constitute negligence on the part of an owner of any dwelling. To establish negligence on the part of an owner, the plaintiff in a civil suit shall demonstrate actual injury caused by the lead base substance. Evidence of actions taken or not taken by the owner or tenant or tenant's invitees of a pre-1978 rental property or childcare facility in compliance with applicable public health laws and regulations concerning lead may be admissible evidence of reasonable care or negligence. Remedial actions taken by a property owner or tenant after a lead exposure has occurred shall not be admissible evidence for purposes of establishing liability. Evidence of disturbance of lead based substances by the tenant, his guests, invitees, or pets shall be admissible evidence. Failure of the tenant to notify the landlord, as required in written lease or rental agreement, of any peeling, chalking, cracking or disturbance of lead based substances shall also be admitted into evidence. In addition, the mere presence of a lead base substance in a dwelling shall not by itself violate any warranty of habitability.
If these changes survive in the amendment we would upgrade our position from against to neutral.
Section 7: Lead Screening Commission & Essential Maintenance Practices Task Force
In the amendment both would be combined into one commission with subcommittees one for Lead Screening and the other for
Essential Maintenance Practices Task Force
Lead Screening Commission
Property Owner Position: Neutral
Essential Maintenance Practices Task Force
Property Owner Position: For
Basically, the committee would set up a standard of care to be followed by all owners of such property. The committee is to study similar programs in other states, Vermont is the primary example, work with public health officials in formulating such a program, and look into incentives for compliance. 14 people are to be appointed to the committee from various occupations related to public health and rental housing.
The fundamental idea here if such a program would be put in place is likely that rental property owners would need to submit an annual report stating that they have inspected the rental property and fixed any lead hazards using lead safe techniques. Also there could easily be a program requiring old leaded windows not yet replaced to at least be fitted with a system of simple vinyl strips and window will inserts to eliminate the friction surfaces of the leaded portion of the windows.
In exchange for this standard of care the property owner would receive a reduction in liability in lead law suits. At the stake holders meetings, an attorney representing interest of trial lawyers said the legal protection for landlords will be killed by the trial lawyers. So the “carrot” portion of this proposal definitely needs substantial work.
At one of our landlord meetings it was suggested that to get a limit in liability landlords should just keep a maintenance log and that the landlord’s property maintenance log be admissible evidence in defending landlord liability. This idea eliminates the beauracracy and still give us possibility of some protection.
Also what if tenant denies us access to make repairs. Law should state that tenant has to give landlord access, similar to bedbug provision.
Some background:
As of late, I have been involved with the lead stake holders meetings that resulted in this legislation. Most of the stake holders wanted to simply put an Essential Maintenance Program in place with this bill. My strong comment to them was that more time was needed to analyze and come up with a plan that landlords could agree with. They decided to take my advice and create a task force instead. Most but not 100% of the landlords I speak with are in favor of this section because it will give landlord’s voice in the process & more time in designing the Essential Maintenances Program. Forcing in place a program that was not well thought out could have been very detrimental to landlords.
The commission membership at our recommendation was raised from 1 to 4 landlord representatives which addresses our major concern.
The Child care member was amended to be from a property pre1978. Which is one of the concerns we raised.
We recommend a few modifications to this section of the bill.
Should an in home day care be included from a property pre1978?
Since there most likely will be a proposed essential maintenance practices program coming from the committee that may become law, we should have some way to review the proposal and have input on it before the committee makes its final recommendation to the legislature. We ask that the meeting minutes and proposed essential practices be posted on a website of the general court & the general public be allowed to make written comments to the committee and such comments be reviewed by the committee before it makes any recommendations to the legislature.
We also recommend that a minority report option be made available for the final report.
None of us on the analysis team had heard of the Granite State Managers Association. In doing some research it appears that the Granite State Managers Association is affiliated with NHHFA and would have input skewed towards managers of tax credit properties, public housing authority properties and other assisted properties.
On the other hand the Apartment Association of NH has long been comprised of actual property owners of higher number units across all sectors of the rental market.
We will be asking that instead of the 50+ unit landlord appointed by the Granite State Managers Association rather have the 50+ unit landlord be appointed by the Apartment Association of NH (who’s membership is specifically targeted to property owners of higher number units).
Notes on some other good things.
This version as amended by the Senate committee adds some duties to the commission including:
VI. The commission shall explore and examine options for assisting property owners in the abatement of lead-based paint hazards.
VIII. The commission shall assess the feasibility and benefits of requiring the department to provide notice to landlords and parents pursuant to RSA 130-A:6-a and RSA 130-A:6-b when a child has been found to have a blood lead level less than 5 micrograms per deciliter.
revious Section on Child Care License/Permit Suspension, Revocation, Denial
has been removed.
Previous sections related to RSA 540-A prohibited acts
has been removed.
Previous section related to Building Permits To Require RRP If Applicable
has been removed.
Section 8: Repeal commission on Completion
Section 9: Effective Dates For Different Sections
Property Owner Position: For as amended by the Senate
Link to Committee Info:
Email to Committee:
To:
Subject: SB135
Link to Bill Text: http://www.gencourt.state.nh.us/legislation/2015/SB0135.html
Analysis Stated in Bill:
Talking Points:
Note: talking points are not updated since last house and committee of conference amendments.
Section 1: Laboratory Reporting
Property Owner Position: Neutral
This section relates to having DHHS, Department of Health & Human Services track and report screening rates. That is how many children are being screened (asked questions) and or tested each year. The screening rates have always been way below long established state guidelines.
Landlords stand aside on the issue of screening so we have no position on this section.
Section 2: Capillary Blood Testing
Property Owner Position: For
“Capillary Blood Test” is what you might call a finger prick test that draws a few drops of blood as opposed to a venous test which actually draws blood from a vein using a needle.
Capillary blood tests are said to have less accuracy than a venous draw. Partly because the portable test modules are not as accurate as a sample sent to a lab and partly because the people operating the capillary test machines are not trained medical staff. Occasionally, lead on the persons finger ends up in the sample.
We have been a push for parents and landlords to receive ALL test results of ANY level. This is because earlier detection allows both family and landlord to take well thought out reasonable measures to prevent the lead exposure before an entire lead abatement order becomes issued if the level reaches 10ug/dl.
DHHS is extremely reluctant to take on the reporting responsibility for values below 5ug/dl ostensibly because of the expected enormous work load required and no budget for it. The have to find contact info for the landlord whereas the parent contact info is already on the reporting forms. Also past results show there would be about 1000/y reportings required at 5 and above. We don’t know how many reports would be required at less than 5. Presumably way more.
Note that the version passing the Senate committee adds a duty to the study commission to look at the issue of reporting results <5ug dl.="" span="">
This provision of section 2 advises the family to get a venous draw test so they get an accurate picture and eliminate “false alarms”. It also recommends that the tenant inform the landlord which is in part accomplishing what we have been asking for.
It further recommends the tenant contact the landlord rather than do anything regarding the lead hazards on their own. This moves again in a direction we have been asking for. It makes some movement toward solving the issue of tenants creating the lead hazards.
Section 3: Child Lead Screening
Property Owner Position: Neutral
This section stresses health care providers are responsible for screening for lead and to follow state guidelines. If they don’t meet the guidelines by 2017 then DHHS will adopt rules to require them to do so.
Landlords stand aside on the issue of screening so we have no position on this section.
Section 4: Property Owner Notification of Elevated BLL
Property Owner Position: For
The latest revision as the bill leaves the Senate committee is that landlords are only notified of venous draw tests and not capillary tests. This is a little watered down from the original bill where we would be notified of both venous and capillary test. (See below about DHHS’s resistance to the work load of giving these notices).
Something is better than nothing and presently we are not getting any notices in the range of 5-9.9ug/dl so this section is quite good for us in that when we are notified of low levels of lead we can work with the tenant family and be proactive at taking all precautions to eliminate the poisoning in a common sense way before it escalates to higher levels which will more greatly harm the child and trigger a lead abatement order. Many times the tenant family and the landlord can work together in a common sense way before an order is triggered and solve the issue easily before the extreme expense of an order is triggered.
The back ground for this is that there has been a request for DHHS to notify property owners and parents at ANY level. The thinking which we agree with is that the earlier everyone is notified the sooner everyone can take measures to be sure the child’s BLL does not rise and only goes down from here. DHHS wants to be able to give notice at any level but their old software system and some test methods are not as reliable when readings are <5ug actually="" an="" behind="" but="" class="" data="" dl="" does="" get="" have="" id="yui_3_16_0_1_1436022669212_38227" it.="" like="" not="" number="" says="" simply="" something="" span="" the="" they="" where=""> They are working towards a software change to update their systems and be able to accurately give notice at lower levels. We say why not just create a simple modern spreadsheet to hold the data. Almost anyone could do that in an hour’s time.
Because capillary testing at low levels is less reliable and because of the data complications expressed in the above paragraph, there is language like “the data is deemed reliable by the department”. When their systems are updated in the future this language allow them to report lower numbers with out having to make yet another change in the state law.
Also DHHS is extremely resistant to notifications below 5ug/dL primarily because they can not handle the work load. Part of the issue is the unreliability of capillary tests, (operators of test are often not medical staff and actually introduce lead to the skin surface before the pin prick is made).
Part of the issue, harder to solve, is the extra time spent for DHHS to find the owner of the property. There are about 1000 BLL levels reported per year from 5-10 ug/DL. Less than 5 is believed to be a much larger number.
All landlords we have spoken to are for this section.
Section 4: Parent Notification of Elevated BLL
Property Owner Position: For
This section is quite good for us as well in that when parents are notified of low levels of lead they will usually become proactive at taking all precautions to eliminate the poisoning before it escalates to higher levels which will more greatly harm the child and trigger a lead abatement order. Many times the tenant family and the landlord can work together in a common sense way before an order is triggered and solve the issue easily before the extreme expense of an order is triggered.
Notice that the parents get reporting of both capillary and venous testing while landlords only get notification of venous testing.
All landlords we have spoken to are for this section.
(Similar notes as section on Landlord Notification above).
Section 6: Civil Suits
Property Owner Position: Against
May be upgraded to Neutral if amended.
Technically, this section does not change the understanding of civil liability so we’re not sure why it is needed.
The Senate committee amendment does add a sentence to address the subsequent repairs concern. (Previously flagged as an issue).
We are suggesting the following change to the tenant responsibility side of this section.
"Evidence of disturbance of lead based substances by the tenant, his guests, invitees, or anyone else he or she brings into the leased premises, or the tenant’s pets shall be admissible evidence. Failure of the tenant to notify the landlord, as required in written lease or rental agreement, of any peeling, chipping, chalking, cracking or disturbance of lead based substances shall also be admitted into evidence."
If both of these changes survive in the amendment we would upgrade our position from against to neutral.
Section 7: Lead Screening Commission & Essential Maintenance Practices Task Force
In the amendment both would be combined into one commission with subcommittees one for Lead Screening and the other for
Essential Maintenance Practices Task Force
Lead Screening Commission
Property Owner Position: Neutral
Essential Maintenance Practices Task Force
Property Owner Position: For
Basically, the committee would set up a standard of care to be followed by all owners of such property. The committee is to study similar programs in other states, Vermont is the primary example, work with public health officials in formulating such a program, and look into incentives for compliance. 14 people are to be appointed to the committee from various occupations related to public health and rental housing.
The fundamental idea here if such a program would be put in place is likely that rental property owners would need to submit an annual report stating that they have inspected the rental property and fixed any lead hazards using lead safe techniques. Also there could easily be a program requiring old leaded windows not yet replaced to at least be fitted with a system of simple vinyl strips and window will inserts to eliminate the friction surfaces of the leaded portion of the windows.
In exchange for this standard of care the property owner would receive a reduction in liability in lead law suits. At the stake holders meetings, an attorney representing interest of trial lawyers said the legal protection for landlords will be killed by the trial lawyers. So the “carrot” portion of this proposal definitely needs substantial work.
At one of our landlord meetings it was suggested that to get a limit in liability landlords should just keep a maintenance log and that the landlord’s property maintenance log be admissible evidence in defending landlord liability. This idea eliminates the beauracracy and still give us possibility of some protection.
Also what if tenant denies us access to make repairs. Law should state that tenant has to give landlord access, similar to bedbug provision.
Some background:
As of late, I have been involved with the lead stake holders meetings that resulted in this legislation. Most of the stake holders wanted to simply put an Essential Maintenance Program in place with this bill. My strong comment to them was that more time was needed to analyze and come up with a plan that landlords could agree with. They decided to take my advice and create a task force instead. Most but not 100% of the landlords I speak with are in favor of this section because it will give landlord’s voice in the process & more time in designing the Essential Maintenances Program. Forcing in place a program that was not well thought out could have been very detrimental to landlords.
The commission membership at our recommendation was raised from 1 to 4 landlord representatives which addresses our major concern.
The Child care member was amended to be from a property pre1978. Which is one of the concerns we raised.
We recommend a few modifications to this section of the bill.
Should an in home day care be included from a property pre1978?
Since there most likely will be a proposed essential maintenance practices program coming from the committee that may become law, we should have some way to review the proposal and have input on it before the committee makes its final recommendation to the legislature. We ask that the meeting minutes and proposed essential practices be posted on a website of the general court & the general public be allowed to make written comments to the committee and such comments be reviewed by the committee before it makes any recommendations to the legislature.
We also recommend that a minority report option be made available for the final report.
None of us on the analysis team had heard of the Granite State Managers Association. In doing some research it appears that the Granite State Managers Association is affiliated with NHHFA and would have input skewed towards managers of tax credit properties, public housing authority properties and other assisted properties.
On the other hand the Apartment Association of NH has long been comprised of actual property owners of higher number units across all sectors of the rental market.
We will be asking that instead of the 50+ unit landlord appointed by the Granite State Managers Association rather have the 50+ unit landlord be appointed by the Apartment Association of NH (who’s membership is specifically targeted to property owners of higher number units).
Notes on some other good things.
This version as amended by the Senate committee adds some duties to the commission including:
VI. The commission shall explore and examine options for assisting property owners in the abatement of lead-based paint hazards.
VIII. The commission shall assess the feasibility and benefits of requiring the department to provide notice to landlords and parents pursuant to RSA 130-A:6-a and RSA 130-A:6-b when a child has been found to have a blood lead level less than 5 micrograms per deciliter.
revious Section on Child Care License/Permit Suspension, Revocation, Denial
has been removed.
Previous sections related to RSA 540-A prohibited acts
has been removed.
Previous section related to Building Permits To Require RRP If Applicable
has been removed.
Section 8: Repeal commission on Completion
Section 9: Effective Dates For Different Sections
=====================
HB309, Removal of Tenant's Property
05/12/2015 at 09:50 AM SH 100
Title: Title: (New Title) permitting landlords to remove tenants’ property in certain circumstances and relative to the committee to study issues concerning parking for those with walking disabilities.
Summary: The landlord shall be able to remove property (without penalty) that creates a hazard or blocks access to common areas. No notice is required.
The Landlord shall be able to remove property with notice for property such as unregistered vehicles, or anything else prohibited in the lease, provided that two notices are given at least 24 hours apart.
Property Owner Position: For
Link to Committee Info:
Email to Committee:
To:
Subject: HB309
Link to Bill Text: http://www.gencourt.state.nh.us/legislation/2015/HB0309.html
Analysis Stated in Bill:
Talking Points:
We need everyone to show up at the hearing in favor of this bill & call and write to legislators to support this important bill. Stay tuned for changes. We have met with NHLA who has proposed changes most of which we agree with,
Currently, RSA 540-A:3 III specifically prohibits a landlord directly or indirectly denying a tenant access to the tenant’s personal property other than by proper judicial process. This would include having a tenant’s vehicle or other property towed or removed from the landlord’s property. Without this bill, if the landlord towed a tenant’s vehicle to comply with local ordinances or to provide access for emergency vehicles or to stop tenant’s car from blocking the driveway or another tenants parking spot, etc, etc, the present statute would subject a landlord to a $1,000 fine, plus a $1,000 a day fine for each day the tenant does not have his or her car after a court issues an order. If the car was towed, the landlord, to stop the $1000/day fines, would have to pay all towing and storage fees. The landlord would also be subject to paying the defendant’s attorney fees and costs.
HB 309 would eliminate this risk for landlords in certain limited circumstances. If the bill is enacted, and a tenant’s property is in a travel lane, common driveway, fire lane, the entrance or exit to any of these, or is in the entrance to a parking area or blocks a dumpster , then a landlord could legally remove a tenant’s property without notice to the tenant, and at the tenant’s expense.
For less egregious scenarios the bill would also allow a landlord to remove tenant’s property, after two notices to the tenant, with the second notice not to be delivered to the tenant until 24 hours after the first notice. These scenarios include if the tenant’s property is located in a posted no parking area, is an unregistered or uninspected motor vehicle, is leaking fluids that are damaging the parking surface or are an environmental hazard, or is parked or stored in a manner that is in violation of the lease.
We need everyone’s full support for this bill. If passed, it will aid us in maintaining our properties, and in removing junk from our parking lots & handling tenants who just flatly refuse to follow their lease requirements regarding parking. The bill is necessary in order to keep our properties clean and safe & to legally comply with local ordinance and zoning laws which require removal of certain offensive property.
The bill also offers protection for tenants who don't realize they are breaking a lease requirement. Once notified they would have the ability to correct the problem or the landlord will have the authority to correct it.
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