Below is the abstract for “Lead and Landlords,” available for download on SSRN.
Lead is a toxin that humans cannot safely consume. As has been known for decades, people frequently suffer exposure to lead because of its use in paint and gasoline. In recent decades, water has been added to the list of delivery systems. Often, lead enters water when pipes containing lead are used to transport water from a public water system (PWS) to the tap in a home or a business— at least nine million homes in the United States.
Many PWS and local, regional and state governments have been working to eliminate lead contamination from lead pipes. Significant new funding for these efforts was included in the Infrastructure Investment and Jobs Act signed by President Biden in November 2021. Unfortunately, some of the people who historically have borne the greatest burden of lead exposure are less likely than others to see the benefits. One important reason for the differential is that people of color and people with little income and wealth are more likely to live in rental housing. In most jurisdictions, landlords are viewed as having exclusive power to decide whether to replace the portion of the water service which is called “private” – the lateral portion of the service line that connects the main service line to the individual building. Getting the consent from the landlord to replace the lateral service line is not always easy. When a landlord does not replace the line or consent to its replacement by the PWS, tenants continue to be exposed to significant levels of lead in water contaminated by the pipes.
In this article, I argue that the accepted practice of requiring the consent of the landlord before replacing the lateral service line is at least questionable law. In making this claim, I’m asserting that property rights are properly subject to limits that affect a landlord’s autonomy around the question of whether a lead service line should be replaced on her property. While this assertion is contrary to the usual approach, it is anything but alien to property law. Unless judges and legislators are urged to consider more deeply the costs of landlord authority and opportunities to limit it, assumptions will continue to prevail over amore considered analysis.