CALIFORNIA PROP. 65ASBESTOS MATERIALS DISCLOSURE REQUIREMENTS

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The State of California requires that certain landlords disclose the presence of asbestos containing materials in the buildings which they rent out. This disclosure requirement pertains only to post 1978 construction. Properties which were constructed before 1979 have their own requirements for posting of notices to employees, and are beyond the scope of this column. The notification requirements for post 1978 construction are embodied in the California Health and Safety Code.

25249.6. Required Warning Before Exposure To Chemicals Known to Cause Cancer Or Reproductive Toxicity. No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.

But it is not all landlords who must make a toxic materials disclosure, only those "person[s] in the course of doing business." This term is later defined.

25249.11. Definitions.

For purposes of this chapter:

(a) "Person" means an individual, trust, firm, joint stock company, corporation, company, partnership, limited liability company, and association.

(b) "Person in the course of doing business" does not include any person employing fewer than 10 employees in his or her business; any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system as defined in Section 116275.

Thus, the disclosure requirement applies only to individuals or entities with ten or more employees who have knowledge of a source of asbestos exposure. Even though the landlord has less than ten employees, there is nothing which prevents him from complying with the disclosure requirement voluntarily. Such action might prevent or mitigate future liability, although this should be discussed with legal counsel. A property management firm of ten or more employees must make the necessary disclosure even on behalf of its smallest landlords as they would be exposing an "individual to a chemical known to the state to cause cancer" in the course of their business.

The landlord who fits this description must make proper disclosure before the rental agreement is entered into, if known at that time, or at such time as the source of asbestos disclosure is learned. This should be done as an addendum or attachment to the rental agreement, of which, click here for an example of the form to be used .

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