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Premises Liability

Toxic Substances on the Property

Toxic substances may include numerous things, including some you may not think of as particularly hazardous or some that were not regarded as dangerous when they were used. Examples include such common products as asbestos shingles or insulation, lead-based paint, mold and fluids drained from motor vehicles. The law regarding premises liability for toxic substances is complex and to ensure that you receive the most accurate and current advice, you should consult with an experienced attorney.


In most states, if you are selling or leasing residential real estate, you must disclose the existence of known hazardous substances on the property. Federal law requires the disclosure of lead hazards, such as lead plumbing or lead-based paint. State or local laws may require disclosure of other dangerous substances, such as asbestos.

Penalties for failure to disclose vary, but are often substantial. Failure to disclose the known presence of a lead hazard, for example, may subject a seller to a civil penalty of triple the amount of damages suffered by the buyer.


The common law in many states provides that a person who stores a hazardous or toxic substance on his or her property is strictly liable for damage caused by the release of that substance, even if mistaken or unintentional. This rule applies to property owners who intentionally store or accumulate toxic materials, regardless of how careful the owners were in storing the substance.

Federal and state laws provide that a property owner or a person in possession of property, such as a tenant, may be liable for the costs of cleaning up hazardous waste disposed of on the property. The landowner may be held liable for all of the costs of the cleanup, even if he or she was not responsible for all of the waste disposed of on the site. A former owner or occupant of property may also be held liable even though he or she no longer owns or is in possession of the property.

Federal and state laws may define "hazardous waste" differently. In some states, used oil drained from a motor vehicle crankcase is considered hazardous waste, so a property owner could be liable if he or she disposed of small amounts of used oil by dumping it on the ground. State and federal environmental agencies publish lists of substances officially regarded as hazardous waste and those lists tell a property owner or occupant if he or she may be potentially liable for hazardous wastes on the property.

Lead Paint

A landlord has a duty to fix hazards from lead paint if a statute, city health department or the common law mandates that he or she do so. Under the common law, a claim against a landlord for lead paint liability is based upon negligence. A landlord cannot be liable for lead paint injuries to a tenant unless the landlord had knowledge or notice of the presence of lead-based paint and there was actually lead paint in the space. If the landlord does not have control over the area where lead-based paint is found, he or she has no duty to fix the problem.


The potential liability for harm from toxic substances on property is immense. Your best protection is to speak to an attorney with experience in the law of toxic substances.

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