The Court of Special Appeals of Maryland has held that a  real estate agent who lists, promotes and effects a rental of residential property, without the right to manage or control the property, is not liable as an “owner” within the meaning of the Lead Paint Act.

Sheree Dyer filed suit on behalf of her daughter, Erielle Wallace, against the owners of 3408 Springdale Avenue, Baltimore City, Maryland, and Otis Warren Real Estate Services (the “Broker”), alleging that Erielle was exposed to lead paint in the property.  Ms. Dyer and her daughter had lived in the house for approximately one year.  The Broker had listed and promoted the property for rent.

The Broker moved to dismiss the complaint on the grounds that it owed no duty to Erielle and that its sole involvement was to promote and facilitate the rental of housing.  Erielle Wallace’s counsel argued that the Broker owed a duty of care to tenants under two Maryland statutes: the Lead Paint Act and the Consumer Protection Act.  The lower court ruled that the Broker had no duty to protect tenants from lead paint exposure and dismissed the case.  Erielle appealed to the Court of Special Appeals.

On appeal, Erielle Wallace argued that the Lead Paint Act places a statutory duty of care upon real estate brokers involved in renting properties.  The Lead Paint Act, Md. Code, Environment Article, §6-801, et. seq. (the “Act”) imposes various duties upon the owner of real property to reduce the risk of lead paint exposure.  Among the duties are taking protective measures such as removing flaking paint, repainting, and repairing structural defects causing flaking paint, and the giving of required notices to tenants every 2 years.  The Act defines “owner” in §6-801(o) broadly:

(1)  “Owner” means a person. . . who, alone or jointly or severally with others, owns, holds, or controls. . . any property, with or without actual possession.”

(2) “Owner” includes:

* * *

(ii)  Any authorized agent of the owner, including a property manager or leasing agent.

Erielle Wallace argued that since the Broker was a leasing agent, and a leasing agent is expressly included in the definition of “owner,” the Act applies to the Broker and creates a duty of care. 

However, the Court held that the entire definition must be read as a whole and that only a leasing agent who “owns, holds, or controls” the property is covered by the Act.    The typical listing agent does not have the power or control over the property that would enable him to make repairs and perform the other duties of an owner.  While a listing agent who also managed property and was responsible for making repairs to the property might meet the definition of “owner,” the court stated that “the Lead Paint Act does not impose a duty of care on real estate agents or brokers acting. . . merely as listing agents.”

The Court also held that reliance on the Consumer Protection Act to create a duty of care was misplaced because the act specifically exempts the activities of real estate salespersons and brokers.  The lower court’s decision was affirmed.

Dyer v. Crieger,Court of Special Appeals of Maryland, No. 2856, September Term, 2000, decided January 3, 2002.

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