On July 1, 2019, updates to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) went into effect, requiring landlords to adhere to new safe harbor warnings for California residential property. Safe harbor provisions are those that define actions that should prevent you from running afoul of a given law. I’ll get into the details of the new requirements, but first, let me share a little history.
More than 30 years ago, California voters passed Prop. 65, requiring businesses with more than 10 employees to divulge that they discharge chemicals known to cause cancer or harm reproductive health into water or land, and/or that they expose visitors to their facilities to these chemicals in other ways. Because this seemed like a really good idea, the ballot measure passed with 63 percent of voters in favor.
While there have been some upsides—transparency often motivates organizations to clean up their act—the fact that there are now more than 1,000 chemicals on the Prop. 65 list means that virtually every business must post a warning, which makes the warnings meaningless. Also, I’ve never understood why the law only applies to businesses with 10 or more employees. The dangers do not diminish if there are fewer employees.
As I said, the intent of the law is excellent. If you are about to enter a facility with noxious fumes, you should be aware (especially if you have asthma). If you work in a dental office with an x-ray machine, it’s reasonable to expect a warning about radiation dangers so you can maintain a safe distance while the machine is running.
However, with more than 1,000 chemicals on the Prop. 65 list, you can’t enter a school, church, retail store or government building without seeing the posted warning. The signs have become white noise. Even more frustrating, not all the chemicals on the list have been proven to cause cancer. A chemical needs to have only a one-in-100,000 chance of increasing your risk for cancer to get added to the Prop. 65 list. (Acrylamide, a naturally occurring chemical in coffee, was recently added to the list even though there’s no solid evidence that coffee causes cancer.)
Part of the new safe harbor provisions requires Prop. 65 warnings to be more specific and to mention at least one listed chemical by name. California’s Office of Environmental Health Hazard Assessment (OEHHA) really likes warnings with the yellow equilateral triangle and an exclamation point with the word “WARNING” in all caps and bold, along with a website for more information. Again, if I didn’t see this type of warning absolutely everywhere, I’d probably pay more attention.
This issue grabbed my attention recently because as a property management company, we have a new responsibility to warn tenants about potential hazards when they sign a lease (and every year thereafter while they rent from us). As of July 1, we need to inform tenants that they may be exposed to lead in paint or asbestos in ceiling coatings, chemicals in pesticides applied to landscaping or structures, cleaning products, swimming pool or hot tub disinfectants, tobacco smoke or motor vehicle exhaust.
Although this new requirement may seem harmless, it adds to the cost of being a landlord. And as with all business endeavors, the cost of doing business is usually passed on to the consumer. The way I’ve heard it described is that businesses do not pay taxes, they collect them and pass them on to local, state and federal authorities. Ultimately, California tenants will either pay higher rents or be forced to deal with a housing shortage or both—exactly what we’re experiencing in Ukiah today.
If you have questions about getting into real estate, please contact me at email@example.com or call (707) 462-4000. If you have an idea for a future column, share it with me and if I use it, I’ll send you a $25 gift certificate to Schat’s Bakery. Dick Selzer is a real estate broker who has been in the business for more than 40 years.