Can I Sue My Landlord for My Child's Lead Poisoning in Massachusetts?

Yes, and Massachusetts gives you a claim that is unusually strong at one end and unusually narrow at the other. The strong end is that you do not have to prove the landlord knew anything. The Massachusetts Lead Law makes the owner of a pre-1978 rental liable for a lead-poisoned child under six without any showing of negligence, knowledge, or a prior inspection, and the duty to remove the lead is triggered by a child under six simply living there, not by anyone getting sick. The narrow end is a number almost no family is told: the strict-liability claim itself only opens once the child’s blood lead level reaches the level at which the Department of Public Health defines lead poisoning, and the current regulation sets that at ten micrograms per deciliter, while the same regulation treats five as a level of concern. A child can be high enough for the Commonwealth to track and too low for the statute’s strict liability. That child is not without a case, but it is a different case. If your child has tested positive for lead in a Massachusetts rental, the Jim Glaser Law line at (617) JIM-WINS is answered 24 hours a day, and the first telephone consultation is offered without charge.

The Statute Is Older, Broader and More Specific Than People Expect

Most states handle childhood lead poisoning with ordinary negligence law, which means the injured child has to prove the landlord knew or should have known about the hazard, the same notice-based structure that governs an ordinary Massachusetts premises liability claim. Massachusetts wrote a statute instead, and it has been on the books since 1971.

The first thing to get right is its address, because it is cited wrongly almost everywhere, including in the brief that started this article. It is not c. 111, sections 190 to 199A. The statute spells its own range out in words, over and over. Section 197(a) speaks of making premises comply “with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive,” and sections 197D, 197C, 199 and 199A all use the same formula. The Appeals Court, reviewing the scheme enacted by St. 1971, c. 1081, calls it the Lead Law and describes its object as “to prevent lead poisoning and to control its sources.” Massachusetts Rental Housing Ass’n v. Lead Poisoning Control Director, 49 Mass. App. Ct. 359 (2000). The Department of Public Health’s regulation recites the identical range as its authority, stating that 105 CMR 460.000 interprets and implements the chapter’s lead sections, “which establish a statewide program for the prevention and control of lead poisoning.”

That matters practically, because two of the most useful provisions in the whole scheme sit at the ends that get lopped off. Section 189A holds the definitions that decide who can be sued. Section 199B holds the exclusions that decide which buildings are outside the law entirely.

The law only reaches old housing. Section 189A defines “Premises” as “any residential premises, dwelling unit or residential property constructed prior to nineteen hundred and seventy-eight.” A building put up in 1978 or later is outside the Lead Law. That is not a coincidence of drafting; it tracks the federal ban on lead in residential paint.

The Duty Starts When a Child Moves In, Not When a Child Is Poisoned

This is the provision that surprises landlords and that most families never learn about until a lawyer reads it to them. Section 197(a) says: “Whenever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials in accordance with the requirements of subsection (b) or (c).”

Read what is not in that sentence. There is no requirement that anyone be sick. There is no requirement that the city have inspected. There is no requirement that the tenant have complained, or that the landlord have been told. A child under six living in a pre-1978 apartment with lead paint in it is the whole trigger.

The regulation says the same thing in the same order. 105 CMR 460.100(A) requires the owner of a unit containing dangerous levels of lead to obtain a Letter of Full Compliance or a Letter of Interim Control where “A child younger than six years old resides therein, whether or not the residential premises have been inspected” under the inspection section “or otherwise.”

The statute is equally clear about the flip side, which is why a landlord with no young tenants is not required to strip every wall in the building. Section 194 provides that “Except as otherwise provided, abatement or containment of lead shall not be required unless the premises has been occupied by a poisoned child within the past twelve months or is occupied by a child under six years of age.”

So the Massachusetts scheme is not a general deleading mandate. It is a mandate that switches on for a specific building the moment a specific kind of tenant moves in. A landlord who rents to a family with a toddler in a house built in 1920 has taken on a legal obligation that day, whether or not he thinks he has.

”Dangerous Levels of Lead” Is a Number, and It Is a Small One

The phrase does most of the work in this statute, and the statute does not define it. Section 194 hands the job to the Department of Public Health, requiring that “The means of detection and the amount of lead in the paint, plaster or other accessible structural material that produces the danger of lead poisoning shall be determined by regulation by the director in accordance with sound medical practice and current technical knowledge.”

The Department’s answer is in 105 CMR 460.020, which defines Dangerous Levels of Lead as “the level of lead in paint, other coating, plaster or putty which materially endangers the health of children or adults by producing a substantial and serious danger of lead poisoning,” and then gives the operative thresholds. On a residential surface, a dangerous level is either “a positive reaction with a 6% to 8% sodium sulfide solution, indicative of 0.5% or more lead by dry weight” or lead “equal to or more than 1.0 milligram of lead per square centimeter” measured on site by a mobile X-ray fluorescence analyzer. In paint offered for sale, the threshold is far lower, “90 parts per million or greater”.

Two practical consequences follow. First, an inspection is a measurement, not an opinion, and a licensed inspector using an XRF analyzer produces a number that either clears the line or does not. Second, the sodium sulfide test has been challenged and upheld: in Massachusetts Rental Housing Ass’n the Appeals Court reviewed a landlord-association attack on it and affirmed summary judgment for the Director.

The regulation also narrows what actually has to be fixed. A “Lead Hazard” under 105 CMR 460.020 means “a surface with dangerous levels of lead that meets the definition of Loose, Accessible, Mouthable Surfaces, Moveable, Impact Surfaces, or Friction Surfaces,” and “Accessible, Mouthable Surfaces” are defined as “window sills five feet or less from the floor, stair tread, or ground; handrails; and railing caps.” Windows, door frames below five feet, stair treads, railings and porches are the recurring list, and section 197(c) sets them out in the statute itself.

One thing that is definitively not compliance: painting over it. Section 197(f) says “Under no circumstances shall repainting with a non-lead based paint, without containment or abatement of the offending paint, plaster or other accessible structural material, constitute compliance with either subsection (b) or (c).” A landlord who says he took care of the lead by repainting has told you he did not.

The Strict Liability Claim, and the Gate on It

Section 199 is the damages provision, and subsection (a) is the sentence the whole claim runs through. The owner “shall be liable for all damages to a child under six years of age at the time of poisoning, upon proof that said child’s blood lead level equals or exceeds the blood lead level at which the department defines lead poisoning, that are caused by his failure to comply with the provisions and requirements of section one hundred and ninety-four, subsection (a) of section one hundred and ninety-six or section one hundred and ninety-seven, and regulations pursuant to said provisions.”

Unpack that into elements, because each one is a place a case is won or lost.

1. The child was under six at the time of poisoning.
2. The child’s blood lead level met the Department’s definition of lead poisoning.
3. The premises were out of compliance with section 194, section 196(a) or section 197.
4. The damages were caused by that failure.

Notice what is absent: knowledge, notice, negligence, and any prior order. The Supreme Judicial Court settled that in Bencosme v. Kokoras, 400 Mass. 40 (1987), holding that the statute “provides for strict liability, that is, liability without proof of fault beyond the owner’s noncompliance with statutory requirements for the removal of materials containing dangerous levels of lead.” The court put the point plainly: an owner may be liable “without proof either that the owner knew there were materials containing dangerous levels of lead on the premises or that the owner was negligent in not removing the offending materials”, because the statute “virtually compels the conclusion that neither negligence nor knowledge of the risk is an element of liability under the first paragraph”.

The Appeals Court restated it twenty years later in Bellemare v. Clermont, 69 Mass. App. Ct. 566 (2007), in four words: “These sections impose strict liability.” And it drew the boundary that matters for a family: “an owner’s knowledge that lead paint is present at the premises or that a child under six is a resident is of no consequence, at least as to compensatory damages.”

The number nobody tells you

Element 2 is the one to look at hard, and it is the reason this article exists.

Section 199(a) does not name a blood lead level. It points at whatever level “the department defines” as lead poisoning. The Department’s current definition, in 105 CMR 460.020, is this: “Lead Poisoning means a medical condition present in a child younger than six years old in which the child has a concentration of lead in whole venous blood of ten micrograms per deciliter or greater.”

The same regulation separately defines a lower marker: “Blood Lead Level of Concern means a concentration of lead in whole venous blood from 5 to less than 10 micrograms per deciliter in a child younger than six years old,” and expressly limits its function, because “Blood Lead Level of Concern shall be used for surveillance and outreach for children at risk of lead poisoning.”

Put those next to each other and the gap is stark. A Massachusetts child whose confirmed venous level is 7 micrograms per deciliter is, by the Commonwealth’s own regulation, a child at risk being tracked by the state’s surveillance system. That same child does not obviously satisfy the element that section 199(a) makes a precondition of strict liability. Medical guidance on childhood lead has moved steadily downward for forty years and no level is regarded as safe; the strict-liability trigger in this regulation has not moved with it.

This should not be read as meaning there is no case. It should be read as meaning it is a different case. The deleading duty in section 197 has no blood-level element at all, so a landlord who ignored lead paint with a toddler in the apartment was in violation of the statute the entire time regardless of any test result. What the lower-level child loses is the shortcut, not the claim. An ordinary negligence claim, a claim for breach of the implied warranty of habitability, and a claim under the consumer protection statute all remain available and all turn on what the landlord knew and did, which is exactly the proof the Lead Law’s strict-liability limb was written to make unnecessary.

The Two Letters That Turn Strict Liability Back Into Ordinary Care

Here is the part of the statute that landlord-side lawyers know cold and tenant-side readers usually do not. Strict liability under section 199 is not permanent. A compliant owner can switch it off, and the mechanism is a piece of paper issued by a licensed inspector.

A Letter of Full Compliance. Section 197(c) provides, in terms: “No claim for strict liability may be brought under section one hundred and ninety-nine against an owner by an occupant or former occupant of premises for which a letter of full compliance has been issued and is in effect in accordance with this subsection.” Section 197C(a) says the same thing from the other direction, that “In no event shall an owner of premises which have been issued a letter of full compliance be held strictly liable for injury or damage caused by exposure to dangerous levels of lead during such time that said letter of full compliance was in effect.”

A Letter of Interim Control. This is the temporary version, issued under an emergency lead management plan while the owner works toward full compliance. It carries the same shield while it lasts, and section 197C(b) states that “In no event shall an owner in possession of a letter of interim control be held strictly liable for injury or damage caused by exposure to dangerous levels of lead during such time the letter of interim control is in effect.”

Neither letter is a general immunity, and the statute is careful about that. Section 199(a) preserves a duty of reasonable care underneath the shield: during the period a letter is in effect “the owner shall take reasonable care to ensure that the premises are in compliance” with the applicable requirements, “and shall be liable for all damages caused by his breach of that duty of reasonable care.” Section 197C(a) repeats it: “the owner shall remain subject to a standard of reasonable care”.

So the letter does not end the case. It changes what has to be proved from nothing to negligence, which is a real change but a survivable one, and the evidence is usually sitting in the file: whether the conditions the letter certified were actually maintained.

Three further limits are worth knowing.

• Interim control expires, and it cannot be strung out. Section 197(b) provides that a letter of interim control “shall expire at the end of one year from the date of its issuance, and may be renewed once, for an additional one-year period,” and that “In no case shall premises be subject to an emergency lead management plan and letter of interim control for longer than two years.”
• Interim control is generally unavailable once a child is already poisoned. Section 197(b): “Only in the instance of a waiver by the department, shall an owner be eligible for an emergency lead management plan and letter of interim control for premises in which a lead-poisoned child resides.” The regulation implements this at 105 CMR 460.100(A)(3), which in that situation requires a Letter of Full Compliance and says the owner “shall not be eligible for interim control.”
• A letter can go stale, and there is a fourteen-day clock. Under section 197(c), a tenant or a licensed inspector who finds the premises no longer meeting the standards of the letter notifies the owner and the enforcing agency, and the owner must bring the property back into line “within fourteen days of being notified to do so”. Under the interim-control paragraph in section 197(b), the strict-liability bar covers that fourteen-day window too.

The practical instruction for a tenant is short. Ask for the letter, in writing, and ask when it was issued. If there is no letter, the strict-liability route is open. If there is one, its date and the condition of the paint since that date become the case.

Treble Damages Require a Wilful Failure

Section 199(b) is the punitive provision, and it is frequently described as an automatic penalty for a landlord who ignores a notice. That is not what the current text says.

The subsection reaches an owner who has been notified of a dangerous level of lead, or who has received a notice or order to comply, “and who willfully fails to take the actions required by the applicable provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, and regulations issued pursuant thereto, or the order to remedy said dangerous conditions by the deadlines contained in the applicable regulations or order”. Such an owner “shall, in addition to the provisions of the subsection (a), be subject to punitive damages, which shall be treble the actual damages found.”

Two things to hold onto. First, the multiple is fixed, not discretionary: treble the actual damages. Second, the trigger is wilfulness, and it is a jury question. In Bencosme the jury found compensatory damages for both children and then found that the owners “had satisfactorily corrected or removed the dangerous condition when they were notified of it”, so no punitive damages followed. The SJC affirmed, holding it “was a jury question” whether the owners had done so. That was under the older text, which asked only whether the owner corrected the condition; the current statute asks the harder question of whether the failure was wilful. A landlord who was slow, disorganized or broke is in a different position from one who was told and decided not to.

Notice, Disclosure, and the Consumer Protection Route

Section 197A is a quiet workhorse, and it changed the ground under one of the leading cases in this area.

To buyers. Every seller of pre-1978 residential property must provide the Department’s standard lead notification before the purchase and sale agreement is signed, and the seller and any real estate agent “shall disclose to the prospective purchaser any information known to the seller or real estate agent about the presence of paint, plaster, or other accessible structural materials containing dangerous levels of lead in the premises.”

To tenants. Since December 1, 1994, before entering a tenancy agreement the owner must give a prospective tenant three things: “(i) a copy of the materials and standard form completed pursuant to paragraph (1); (ii) a copy of the most recent lead paint inspection report, letter of interim control, letter of compliance or abatement plan applicable to the dwelling unit and to the common areas or exterior surfaces of the residential premises; and (iii) two copies of a statement certifying that the prospective tenant received all of the above materials”. The owner must also “disclose any information actually known by the owner concerning the location of paint, plaster or other accessible structural materials containing dangerous levels of lead, including such intact paint, plaster or other accessible structural materials containing dangerous levels of lead which have been covered or encapsulated.”

What happens if the owner does not. Section 197A(e) supplies its own remedy, and it is a strong one: “Any owner who fails to comply with the provisions of this section shall be liable for all damages caused by the failure to comply and, in addition, shall be subject to assessment of a penalty not to exceed one thousand dollars. A violation of this section by a person engaged in trade or commerce shall be an unfair and deceptive act or practice as defined in section two of chapter ninety-three A.”

That last sentence is the hinge, and it is why the disclosure limb of a lead case is often worth more than it looks. The consumer protection statute carries multiple damages and attorney’s fees; the Lead Law itself, as we come to below, carries neither.

And signing the paperwork does not cost you anything. Section 197A(f) forecloses the argument a landlord will reach for first: “The receipt by a tenant or prospective tenant of a notification brochure or other disclosure materials from an owner pursuant to this section shall not be construed to bar any claim for liability by the tenant or his minor children against the owner.” The section adds that handing over the brochure is not an admission of liability either. It cuts both ways, deliberately.

The case that section 197A superseded

Underwood v. Risman, 414 Mass. 96 (1993), is still cited for the proposition that a Massachusetts landlord has no consumer-protection duty to warn about lead paint. Read carefully, it does not stand for that any more.

A landlord rented an apartment to a childless couple in 1981 and sold the building weeks later. The couple later had a child, who was lead poisoned. The trial judge found a c. 93A violation in the landlord’s failure to mention the likelihood of lead paint, and awarded trebled damages, fees and interest totalling over $2.2 million. The SJC reversed, on a narrow ground: knowledge. “There is no liability for failing to disclose what a person does not know”, the court held, and the trial judge had imposed liability “because of a suspicion or a likelihood, rather than knowledge.”

That is still good law about common-law nondisclosure. But the conduct in Underwood happened in 1981, and the disclosure obligations in section 197A did not take effect for tenants until December 1, 1994. Today the duty does not depend on what the landlord suspected, because the statute supplies it, and section 197A(e) makes a violation by a person in trade or commerce an unfair and deceptive act by its own terms. A landlord in 2026 who never gave the tenant the notification package is not in Underwood’s position.

What the Lead Law Does Not Give You

An honest article has to include this part, because three of these come as unpleasant surprises.

No attorney’s fees. The Lead Law contains no fee-shifting provision, and the SJC has closed the obvious workaround. In Al-Ziab v. Mourgis, 424 Mass. 847 (1997), a family won a lead verdict and then collected $63,705 in fees on the theory that a Lead Law violation is automatically a violation of the quiet enjoyment statute, G. L. c. 186, sec. 14. The SJC reversed the fee award, holding that “proof of knowledge of the risk and of negligence on the part of a landlord at the least is a prerequisite to recovery” under that section. It stated the rule directly: “to support the imposition of liability under the quiet enjoyment statute, there must be a showing of at least negligent conduct by a landlord and violation of the lead paint statute alone is not sufficient to prove such negligence.” Restated for a claimant, on a lead paint poisoning claim “it must be demonstrated that the landlord had notice of or reason to know of the presence of lead and failed to take appropriate corrective measures.”

The consequence is a genuine oddity in Massachusetts law. Strict liability gets you compensatory damages without proving fault, but every route to fees and multiple damages, whether c. 186, sec. 14 or c. 93A, requires you to prove fault after all. Most seriously litigated lead cases therefore plead both, which is why the fee arrangements in Massachusetts injury cases matter here in a way they do not in an ordinary car case.

The landlord can come after the child’s parents. This is the hardest sentence in the article. In Ankiewicz v. Kinder, 408 Mass. 792 (1990), the SJC held that “the lead paint prevention act imposes tort liability on landlords who violate its provisions,” which put the claim inside the contribution statute, G. L. c. 231B, and allowed the landlord to implead the child’s mother for negligent supervision. The court acknowledged the policy objection squarely, that contribution against parents would in practice reduce the child’s recovery because a family is generally a single economic unit, and answered that “These policy arguments, however, should be addressed to the Legislature.”

The Legislature responded in 1993, and it did not abolish the practice. It channelled it. Section 199(c) now provides that an owner “who seeks contribution pursuant to chapter two hundred and thirty-one B against the parent or guardian of a child who has been awarded damages under this section shall bring a separate action after a judgment has been entered against him; provided, however, that such action shall be brought within one year after the judgment has become final.” So it cannot be used as a lever inside the child’s own trial, and it has a one-year fuse, but it exists.

It only reaches lead. A different dangerous condition in the same apartment runs on its own statutes, and they are not these ones: suing a landlord after a carbon monoxide or fire injury turns on written notice under M.G.L. c. 186, sec. 19, the implied warranty of habitability, and the state sanitary code rather than on the Lead Law’s strict liability.

Your own conduct is still in the case in the ordinary way. Once a claim sounds in negligence rather than strict liability, Massachusetts comparative negligence applies to it like any other.

Who Counts as the Owner, and Who Does Not

Section 189A defines “Owner” broadly: “any person who alone or jointly or severally with others (i) has legal title to any premises; (ii) has charge or control of any premises as an agent who has authority to expend money for compliance with the state sanitary code, executor, administrator, trustee or guardian of the estate or the holder of legal title”, plus estates and trusts of which the premises are a part, and condominium or cooperative associations, which are owners “solely with respect to common areas and exterior surfaces and fixtures”.

That reaches further than the name on the deed. A management agent with spending authority is an owner. A condominium association is an owner for the hallway and the porch, and not for the inside of the unit.

It does not reach everyone, though, and Bellemare is the limit. There a lawyer’s secretary had been named a co-trustee of a realty trust as an accommodation to a client. She exercised no control over the property and derived no benefit from the position. The Appeals Court affirmed summary judgment for her, concluding that “the Legislature did not intend to impose liability on a person in the defendant’s position on the facts present here”. Title alone, held by someone with no authority and no stake, was not enough.

Three more carve-outs sit in the statute:

• Banks and mortgage holders. Section 197D(a) provides that “No secured lender shall be considered an owner for purposes of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, unless and until such secured lender has acquired legal title pursuant to applicable law, and takes actual physical possession”. Once it does take title, it has ninety days to obtain a letter or transfer the property, and a lender that does neither “shall be fully liable for all damages, including punitive damages, under section one hundred and ninety-nine.”
• A new owner gets ninety days. Section 199(d) gives a purchaser a grace period: the new owner “shall not be strictly liable for damages under this section if such new owner complies with the requirements of this chapter within ninety days after becoming the owner.” Section 197(a) sets the same ninety-day clock for the deleading work itself.
• Some dwellings are outside the law entirely. Section 199B excludes any dwelling unit “having fewer than two hundred and fifty square feet of floor space calculated on the basis of total habitable room area or which is used as a rooming house”, but only where “no person occupying said dwelling unit may be less than six years of age.” It also excludes short-term vacation rentals, any tenancy “of thirty-one days or less in duration, which lease, rental or occupancy is for vacation or recreational purposes”, provided the unit has no peeling or chipping paint and the required disclosure was given.

The Landlord Cannot Solve This by Getting Rid of You

Section 199A exists because the obvious way for an owner to avoid a deleading bill is to avoid tenants with small children. The Legislature made that route an independent violation.

Under section 199A(a), it “shall be an unlawful practice for purposes of chapter one hundred and fifty-one B” for an owner, lessee, broker, assignee or managing agent “to refuse to sell, rent, lease or otherwise deny to or withhold from any person or to discriminate against any person in the terms, conditions or privileges of the sale, rental or lease of such premises, because such premises do or may contain paint, plaster or accessible structural materials containing dangerous levels of lead”. It reaches retaliation too, covering a refusal made “because a person chooses to exercise any right” under the Lead Law.

The section then forecloses the two workarounds by name. Section 199A(b): “Refusing to rent to families with children in violation of paragraph eleven of section four of chapter one hundred and fifty-one B shall not constitute compliance with the lead law and regulations.” Section 199A(c): “Refusing to renew the lease of or evicting families with children shall not constitute compliance with the lead law and regulations. Such evictions shall also constitute a violation of section two of chapter ninety-three A and section eighteen of chapter one hundred and eighty-six.”

A complaint goes to the Massachusetts Commission Against Discrimination under c. 151B, sec. 5. That is a different agency, a different clock and a different remedy from the injury claim, and the deadline for it is much shorter than the deadline for the child’s case.

Proof, and Two Provisions That Help

The inspection report walks itself into evidence. Section 195 provides that a certified copy of a report of the state lead laboratory, or of a duly authorized local board of health or code enforcement agency, “shall be admissible in any judicial proceeding without further authentication by either the laboratory or by the agency for which said report was made and shall be prima facie evidence of the facts stated therein.”

But it is not conclusive, and that cuts both ways. In Smola v. Higgins, 42 Mass. App. Ct. 724 (1997), a Housing Court judge granted the child summary judgment on liability, reasoning that the landlord had complied with an unappealed deleading order and could not now attack the inspection. The Appeals Court reversed. Treating an unappealed order as preclusive “defeats the express legislative intent to make the report merely prima facie evidence, thereby permitting the introduction of rebuttal evidence.” The same opinion found a genuine dispute on causation, where the landlord’s toxicologist opined that the apartment was not a substantial contributing source. Causation is very often the real fight in these cases, because lead has other sources and children move.

Preserve the physical evidence and the paper. The inspection report, the order to correct, the blood test results with dates and whether each was venous or capillary, the lease and the section 197A disclosure package, photographs of peeling paint, and the tenancy dates. If you are documenting a claim, be aware that what you post about it publicly is reachable in litigation.

How Long You Have

A Lead Law claim is a tort claim. That is the holding of Ankiewicz, and the general tort period in M.G.L. c. 260, sec. 2A is three years: tort actions “shall be commenced only within three years next after the cause of action accrues.”

The critical qualifier for a childhood lead case is that the injured person is a child. M.G.L. c. 260, sec. 7 tolls the limitations period during minority, so the three years generally does not begin to run against the child until the disability is removed. This library sets that section out in full and works through how it applies, along with the discovery rule, on the Massachusetts personal injury statute of limitations page and in the discussion of long-latency harm on the traumatic brain injury page. Read one of those rather than counting from the general rule here.

Two traps that are not tolled the same way. A parent’s own claims, including a loss of consortium claim, are the parent’s rather than the child’s, and they run on the ordinary clock. And a c. 151B discrimination complaint under section 199A has its own much shorter filing deadline at the MCAD, which no amount of tolling for the child will rescue.

What Is Genuinely Unsettled

Massachusetts has an unusual amount of settled statutory text here and an unusual shortage of recent case law interpreting it. A search of the published Supreme Judicial Court and Appeals Court decisions turns up no reported decision after 2011 construing the Lead Law’s liability provisions, and the most recent to construe them substantively is Bellemare in 2007. Every one of the cases above predates smartphones. That is not a reason to distrust them, but it does mean several real questions have no Massachusetts answer, and this article is not going to invent one.

Whether a child between five and ten micrograms per deciliter can bring the strict-liability claim. Section 199(a) conditions the claim on proof that the blood lead level “equals or exceeds the blood lead level at which the department defines lead poisoning,” and 105 CMR 460.020 currently sets that definition at ten. The blood-level element was added by the 1993 amendment, and no reported Massachusetts appellate decision has construed that clause since. Bencosme cannot answer it, because the text Bencosme applied contained no blood-level element at all.

What the deletion of the exclusivity sentence means. When Ankiewicz was decided in 1990, section 199 contained a sentence the SJC quoted and relied on: that the remedy provided is not exclusive and supplements existing statutory and common law causes of action. That sentence does not appear in the current section 199, and the words “exclusive” and “supplements” appear nowhere in sections 189A through 199B. No reported decision addresses the removal. In practice claimants continue to plead negligence, warranty and c. 93A alongside the statute, and nothing in the current text purports to bar them, but the express authority for doing so is gone from the statute.

Whether the full-compliance shield reaches a negligence claim. Section 197(c) bars a “claim for strict liability” against an owner holding a current letter, and section 197C(a) preserves “a standard of reasonable care”. Read together those seem to leave ordinary negligence available, and the reasonable-care language in section 199(a) points the same way. No reported decision confirms it.

Whether the deleading duty reaches a day care that is not a dwelling. Section 189A defines a “Child-occupied facility” to include “day care centers, preschools and kindergarten classrooms” and says such facilities “may be located in residential premises or in public or commercial buildings.” But the duty in section 197 and the damages claim in section 199 both run to “premises”, which section 189A defines as residential property built before 1978. The child-occupied facility definition does real work in the inspector and deleader licensing provisions of section 197B. Whether it extends the owner’s abatement duty to a commercial building is not answered by the text.

A drafting artifact worth knowing about. Section 198, the enforcement section, three times directs boards of health and the Director to enforce “sections one hundred and ninety-four A, one hundred and ninety-six and section one hundred and ninety-seven”. Section 194A was repealed by St. 1993, c. 482, sec. 6, the same act that rewrote most of this chapter, and 105 CMR 460.020 repeats the stale cross-reference in its definition of a Code Enforcement Agency. It has no practical effect on a claim, and it is a good illustration of how little of this chapter has been touched in thirty years.

If Your Child Has Tested Positive

A short, ordered list, in the order these things matter.

1. Get the venous number and the date. A capillary (finger stick) screen showing five or more requires a confirmatory venous draw under the Department’s protocol. The venous result, and when it was drawn, is the number that matters legally.
2. Ask the landlord in writing for the letter. A Letter of Full Compliance or Letter of Interim Control, with its issue date, plus the most recent lead inspection report. Section 197A(d)(2) already required him to give you those at the start of the tenancy.
3. Ask for an inspection. Section 194 obliges the Director, subject to appropriation, to inspect on an occupant’s request “within a reasonable time, not to exceed ten days” in most circumstances, and to inspect the premises when a case of lead poisoning is reported.
4. Do not move out first if you can avoid it. Evicting or refusing to renew for a family with children is separately unlawful under section 199A(c), and leaving voluntarily can complicate proving where the exposure happened.
5. Keep everything. Notices, texts, photographs of peeling paint, the lease, the disclosure package, every medical record.
6. Watch the shorter clocks. The child’s injury claim is tolled during minority. A discrimination or retaliation complaint is not.

Lead exposure is a toxic exposure claim in its structure, and the damages a child’s case has to prove are cognitive and developmental rather than orthopedic, which puts it closer to a brain injury valuation than to a fracture case. If the exposure happened in a public housing authority’s building, claims against a government defendant carry an earlier written presentment requirement that can end a case before the three years run. If it happened in a licensed facility, the nursing home and licensed-facility framework is a closer analogue than an ordinary premises case, and a landlord’s responsibility for harm caused by another person entirely is a separate question covered under negligent security. And if the hazard was a defective product rather than a building surface, Massachusetts product liability runs on the implied warranty rather than on this chapter.

Frequently Asked Questions

Q: Do I have to prove my landlord knew about the lead paint?

A: No, not for the Massachusetts Lead Law claim. Bencosme v. Kokoras, 400 Mass. 40 (1987), holds that the statute “provides for strict liability, that is, liability without proof of fault beyond the owner’s noncompliance with statutory requirements for the removal of materials containing dangerous levels of lead”, and that “neither negligence nor knowledge of the risk is an element of liability under the first paragraph”. Bellemare v. Clermont, 69 Mass. App. Ct. 566 (2007), restates it: “These sections impose strict liability.” Knowledge does matter for other claims, including consumer protection and quiet enjoyment, and for punitive damages.

Q: My child’s lead level was 7. Is that lead poisoning under Massachusetts law?

A: Not under the regulation that the strict-liability statute points to. 105 CMR 460.020 defines Lead Poisoning as a level of “ten micrograms per deciliter or greater” in a child younger than six, and separately defines a “Blood Lead Level of Concern” as “a concentration of lead in whole venous blood from 5 to less than 10 micrograms per deciliter”, which it says “shall be used for surveillance and outreach”. M.G.L. c. 111, sec. 199(a) requires proof that the child’s level “equals or exceeds the blood lead level at which the department defines lead poisoning”. A child below that number is not out of options, because the landlord’s duty to delead under sec. 197 has no blood-level element and ordinary negligence, warranty and consumer protection claims remain. But the strict-liability shortcut is a different question, and no reported Massachusetts appellate decision has construed that clause. Have a lawyer look at the actual venous numbers.

Q: The landlord repainted the apartment. Does that count as fixing the lead?

A: No, and the statute says so in as many words. M.G.L. c. 111, sec. 197(f): “Under no circumstances shall repainting with a non-lead based paint, without containment or abatement of the offending paint, plaster or other accessible structural material, constitute compliance with either subsection (b) or (c).” Compliance means abatement or containment done under the regulations, certified by a licensed inspector, and evidenced by a letter.

Q: What triggers the landlord’s duty to delead in the first place?

A: A child under six living there. M.G.L. c. 111, sec. 197(a) provides that “Whenever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials”. No poisoning, complaint, inspection or order is required. 105 CMR 460.100(A) says the same, applying “whether or not the residential premises have been inspected”.

Q: Does the Lead Law apply to a newer apartment building?

A: No. M.G.L. c. 111, sec. 189A defines “Premises” as “any residential premises, dwelling unit or residential property constructed prior to nineteen hundred and seventy-eight.” Housing built in 1978 or later is outside this chapter, though ordinary negligence and habitability law still apply to it.

Q: My landlord has a Letter of Full Compliance. Is the case over?

A: No, but it changes. M.G.L. c. 111, sec. 197(c) provides that “No claim for strict liability may be brought under section one hundred and ninety-nine against an owner by an occupant or former occupant of premises for which a letter of full compliance has been issued and is in effect”. What survives is the duty of reasonable care that sec. 199(a) and sec. 197C(a) expressly preserve, so the question becomes whether the conditions the letter certified were actually maintained. Ask for the letter’s date, and compare it to the condition of the paint.

Q: Can I get triple damages?

A: Only on a showing of wilfulness. M.G.L. c. 111, sec. 199(b) reaches an owner who was notified of a dangerous level of lead or received an order to comply and “who willfully fails to take the actions required”, and provides that such an owner shall “be subject to punitive damages, which shall be treble the actual damages found.” In Bencosme the jury found the owners had satisfactorily corrected the condition after notice, so no multiple followed, and the SJC held that was a jury question.

Q: Will the Lead Law pay my attorney’s fees?

A: Not by itself. The statute has no fee-shifting provision, and Al-Ziab v. Mourgis, 424 Mass. 847 (1997), closed the route through the quiet enjoyment statute, holding that “violation of the lead paint statute alone is not sufficient to prove such negligence” and that “proof of knowledge of the risk and of negligence on the part of a landlord at the least is a prerequisite to recovery” under that section. Fees and multiple damages generally come through c. 93A instead, which is one reason the disclosure failures under sec. 197A matter.

Q: Can my landlord sue me for my own child’s lead poisoning?

A: He can seek contribution, and Massachusetts allows it. Ankiewicz v. Kinder, 408 Mass. 792 (1990), held that “the lead paint prevention act imposes tort liability on landlords who violate its provisions” and therefore falls inside the contribution statute, permitting a claim against a parent for negligent supervision. The Legislature then limited how it can be used. M.G.L. c. 111, sec. 199(c) requires the owner to “bring a separate action after a judgment has been entered against him”, and that action “shall be brought within one year after the judgment has become final.” So it cannot be raised inside the child’s own trial, but it is real, and it is something to discuss with a lawyer at the start rather than the end.

Q: Can the landlord just refuse to rent to families with young children?

A: No, and doing so is an independent violation. M.G.L. c. 111, sec. 199A(a) makes it “an unlawful practice for purposes of chapter one hundred and fifty-one B” to refuse or discriminate “because such premises do or may contain paint, plaster or accessible structural materials containing dangerous levels of lead”. Section 199A(c) adds that “Refusing to renew the lease of or evicting families with children shall not constitute compliance with the lead law and regulations”, and that such evictions “shall also constitute a violation of section two of chapter ninety-three A and section eighteen of chapter one hundred and eighty-six.” That complaint goes to the MCAD on a much shorter deadline than the child’s injury claim.

Q: We bought the house. Are we now liable for lead that was there before?

A: You have ninety days. M.G.L. c. 111, sec. 199(d) provides that a new owner “shall not be strictly liable for damages under this section if such new owner complies with the requirements of this chapter within ninety days after becoming the owner”, and sec. 197(a) gives the same ninety days to do the containment or abatement work.

Q: Is the bank that foreclosed liable?

A: Generally not until it takes possession. M.G.L. c. 111, sec. 197D(a) provides that no secured lender counts as an owner under the Lead Law “unless and until such secured lender has acquired legal title pursuant to applicable law, and takes actual physical possession”. Once it does, it has ninety days to obtain a letter of interim control, obtain a letter of full compliance, or transfer the property, and a lender that does none of those “shall be fully liable for all damages, including punitive damages, under section one hundred and ninety-nine.”

Q: How long do I have to bring my child’s claim?

A: The general tort period is three years under M.G.L. c. 260, sec. 2A, which provides that tort actions “shall be commenced only within three years next after the cause of action accrues.” Because the injured person is a child, M.G.L. c. 260, sec. 7 tolls the period during minority. A parent’s own claims and any discrimination complaint run on their own, shorter clocks. Deadlines in Massachusetts injury law have more exceptions than rules, so confirm yours with a lawyer rather than counting from a general statement.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Whether a particular owner is liable depends on when the building was built, who held title and with what authority, what the venous blood levels were and when, whether a letter of compliance or interim control was in effect, and what caused the exposure, which only a lawyer reviewing the facts and the records can assess. For advice about a specific situation, call Jim Glaser Law at (617) JIM-WINS.