New Prop 65 Regulations for Residential Rental Properties Burdens Property Managers
The Office of Environmental Health Hazard Assessment (OEHHA) has promulgated two related warning regulations for commercial and residential property owners.
The first regulation which took effect on August 30, 2018, requires that businesses with 10 or more employees provide “clear and reasonable” warnings to people entering their properties if they could be exposed to chemicals listed as carcinogens or reproductive or developmental toxicants.
The most recent regulation took effect on July 1, 2019. It requires residential rental property owners to provide new warnings to occupants. This regulation applies to houses, apartments, condominiums, duplexes, triplexes and other residential properties except for hotels.
Warnings Must be conveyed to Each Adult Occupant
In the previous requirement, residential property owners could post warnings on the property to inform tenants of their exposure to chemicals listed under Prop 65 as carcinogens or can cause reproductive harm.
The new regulation requires that a landlord provide “each known adult occupant” direct notice of the exposure through the lease, an email or through a letter “at the time of renting, leasing…and each year thereafter.
The regulation provides property owners with guidelines, including “safe harbor” language and content, to use in the warning to tenants as follows:
- The word “WARNING” in bold capital letters with this warning symbol.
- The notice must inform tenants that they can talk to the property owner about the details (how and when) of the exposure to harmful chemicals.
- Identify the sources of exposure (e.g. fireplaces, building materials) in the rental property.
- Identify the harmful chemicals and the risk involved (reproductive harm or cancer).
Additional Warnings Requirements
In addition to the direct notice, landlords are still required to post signs to provide tenants with warnings posted in enclosed parking facilities and designated smoking areas.
The Duties of Landlords and Property Managers are Vague and Ambiguous
There are concerns regarding the warning requirement that occupants may “talk to your landlord or the building owner about how and when you could be exposed to these chemicals in your building”.
The requirement is not clear as to the scope or coverage of information that the landlord should provide. It is not clear what would be considered as incomplete or vague advice by the landlord. Because the most recent regulation requires that the landlord must identify the “source of the alleged exposure.” it is unclear how far their duty to warn goes. What is crystal clear is that the residential regulation needs revision to clarify and amend the regulation for property owners and tenants.
In addition, the regulation requires that the landlord must identify the “source of exposure.” However, it is not clear how specific or detailed a property owner must identify the source of exposure.
To comply with the new Prop 65 residential property regulation owners may consider modifying their lease agreements starting on July 1, 2019, and ensure they include the required Prop 65 notice. They should also prepare their annual Prop 65 notices to tenants at their earliest convenience.