Decision Could Have Wide Impact Upon Marijuana Use By Tenants
The law on marijuana and rental housing remains clouded to say the least. And that’s no pun. This week on April 8th, the Supreme Judicial Court will consider the first of probably many cases dealing with marijuana use in rental housing. In this particular case, Boston Housing Authority v. Figgs (SJC 11532), the high court will assess whether a state housing authority may evict a subsidized tenant and terminate her federal housing benefits for the alleged possession of less than one ounce of marijuana — which is no longer a criminal offense in Massachusetts, but still a crime under federal law. With the decriminalization of small amounts of marijuana, the rollout of the medical marijuana dispensaries and the conflict with federal drug laws, this case may have wide-ranging impacts upon the relationships of landlords, tenants, housing authorities and even condominium owners and trustees over the use of marijuana, both recreationally and medicinally.
Oral arguments are available via live stream here. Legal briefs and filings in the case can be found here. A final opinion and ruling is expected this summer.
This case should also put the new Medical Marijuana Law into re-focus. Landlords have been increasingly anxious about how to manage and regulate tenants’ use of medical and recreational marijuana, if at all. The law not only grants qualified patients the right to obtain medical marijuana but it also allows patients the right to grow a two-month supply of marijuana at home if they cannot get to a marijuana dispensary because they are too sick or too broke. There is a bill in the Legislature granting landlords the right to prohibit medical marijuana on rental property without fear of being sued for disability discrimination.
I’ll be monitoring this new and dynamic area of the law. It will surely be a hot topic in the next couple of years.
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Richard D. Vetstein, Esq. is an experience Massachusetts landlord tenant and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at[email protected].
The Massachusetts State Sanitary Code governs the minimal standards of fitness and conditions for human habitation of rental occupancy of property. Unfortunately, most landlords become familiar with the lengthy code only after tenants or the local Board of Health cites them for code violations. As a landlord-tenant attorney, I’ve created this comprehensive summary of the Massachusetts State Sanitary Code. Mind you, this does not cover every single provision, just the important ones, in my opinion. Keep this handy guide on your nightstands in case you have insomnia! Seriously, this is important information for all rental property owners in Massachusetts.
Scope
The Massachusetts State Sanitary Code is found at 105 Code of Massachusetts Regulations 410, which can be downloaded by clicking here. The Sanitary Code applies to all rental properties in Massachusetts including owner-occupied multi-families, rooming houses and temporary housing. The only exceptions are dwellings located on a campground and civil defense shelters.
Kitchen and Bathroom Requirements
The Code provides that every rental unit where common cooking facilities are provided shall contain a kitchen sink, a stove and oven and space and proper facilities for the installation of a refrigerator. Each unit must include at least one toilet, one washbasin (which cannot be the kitchen sink) and one bathtub or shower in a separate bathroom. Privies and chemical toilets are prohibited except with Board of Health permission.
Potable Water
Landlords must provide “a supply of potable water sufficient in quantity and pressure to meet the ordinary needs of the occupant” either connected to town/city water or private well with Board of Health approval. The landlord may charge tenants for actual water usage if separately assessed and metered. Hot water must also be provided of not less than 110°F and no more than 130°F.
Heating
Landlords must provide for adequate heating in every habitable room of a rental unit including bathrooms. Portable space heaters and similar equipment are prohibited. Heating must be provided to no less than 68°F between 7AM and 11PM and at least 64°F between 11PM and 7AM, except between June 15 and September 15.
Natural Light and Lighting Fixtures
The Code requires at least one window in all rooms except the kitchen if less than 70 s.f. Lighting fixtures must be provided in all bathrooms. Two outlets must be provided in every habitable room, and sufficient lighting provided in all hallways, foyers, laundry rooms and the like. Buildings over ten units must have auxiliary emergency lighting. Screens must be provided for all windows on the first floor.
Maintenance Obligations
An oft-litigated area, the Code provides for maintenance obligations for both landlord and tenant. Landlords must maintain and repair whatever appliances he has installed in the unit. If a tenant has paid for and installed an appliance himself, however, he is responsible for maintaining it. Tenants are also responsible for the general cleanliness of toilets, sinks, showers, bathtubs, and kitchen appliances. So when the tenant claims there is mold in the bathroom, the landlord can argue that the tenant’s lack of cleanliness is the cause. Landlords must also exterminate any pest, insect or rodent infestation.
Asbestos and Lead Paint Materials
If there is asbestos material in the unit, the landlord must keep it in good repair, free of all defects, cracks and tears which would allow for the release of asbestos dust. Due to the liability exposure, it’s a good idea for any landlord to remove all asbestos materials. Lead paint is absolutely prohibited where children under 6 are occupying. See my previous posts on the Lead Paint Law for more info on this complex area.
Utility Metering
Owners must provide electric and gas service to tenants unless they are separately metered and billed to the unit and the lease provides for same. Separate water metering is permissible so long as the landlord gets written approval from the local Board of Health and complies with the metering requirements of General Laws chapter 186, section 22. For homes heated with oil, the owner must provide the oil unless it is provided through a separate oil tank servicing only that dwelling unit.
Minimum Square Footage
* 150 s.f. for the first occupant, and no less than 100 s.f. for each additional occupant
* Bedrooms — 70 s.f. for first occupant, 50 s.f. for each additional occupant
All ceilings must be no less than 7 feet.
Egress/Snow and Ice Removal
Property owners must keep all means of egress free from obstruction. As for the removal of snow and ice, the Code provides that the owner shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice. A landlord may require the tenant be responsible for snow and ice remove only where a dwelling has an independent means of egress, not shared with other occupants, and a written lease provides for same. Otherwise, landlords are responsible for snow and ice removal. Even if the tenant is responsible, the landlord could still face liability for slip and falls on snow and ice under recent Massachusetts case law.
Locks
Owners must install locks for every door of a dwelling unit capable of being secured from unlawful entry. The main entry door of a three unit dwelling or more must be installed with a automatic locking mechanism.
Smoke/CO2 Detectors
Smoke and carbon monoxide detectors must be installed in accordance with the Mass. Fire Code.
Railings
Owners must provide safe handrails for every stairway, and a wall or guardrail on every open side of a stairway no less than 30 inches in height. For porches and balconies, a wall or guardrail at least 36 inches high must be provided. Between all guardrails and handrails, balusters at intervals of no more than 6 inches for pre-1997 construction, and at 4.5 inches for post 1997 construction must be provided.
Inspections and Code Violations
The Code provides that the local Board of Health or Inspector can inspect any unit upon the oral or written complaint of an occupant. Inspections are supposed to take place within 24 hours of the complaint, but that rarely happens. The inspector will prepare a code violation form. Serious violations such as failure to provide heat or water must be corrected within 12 hours. Less serious violations should be corrected within 5 – 30 days depending on the type of violation. Violators have a right to a hearing before the board of health to contest any code violations.
Code violations are criminal proceedings and should not be ignored. Penalties can result in $500/day fines and even condemnation of the premises.
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Richard D. Vetstein, Esq. is an experienced Massachusetts landlord-tenant attorney. If you have been cited for violations of the State Sanitary Code or have questions about it, please contact me at [email protected] or 508-620-5352.
Joint Committee on Housing Considering Tenant Abuse Reform
Yesterday I was honored to testify before the Massachusetts Legislature’s Joint Housing Committee in favor of House Bill 1131, the Rent Escrow Bill. The bill will level the playing field between landlords and tenants and make Massachusetts more hospitable to rental property owners.
The bill prevents tenants from being allowed to withhold rent for minor or cosmetic property condition issues through the entire pendency of an eviction case. Instead, tenants would have to pay the withheld rent into an escrow account administered by the court or the attorneys until such time as the judge rules on the property conditions. Both landlord and tenant would have “skin in the game,” and it would cut way down on the expense and length of evictions.
As a landlord tenant attorney who has handled over 5,000 evictions, I told legislators some horror stories about how “professional tenants” have victimized my landlord clients by creating minor code issues, withholding rent, then attempting to extort my clients out of thousands of dollars. It certainly appeared to resonate with the lawmakers and I even got a nice round of applause from the gallery after my testimony!
If you are a landlord, please contact your state rep and senator to support House Bill 1131. After many years trying to get this bill through, we may finally have the best environment to pass this much-needed reform to the eviction system.
Bill Would Curb Tenant Abuses of Eviction Process | State House Hearing Set For Feb. 25
For the last decade, Massachusetts landlords have been lobbying for a tenant rent escrow bill which would prevent tenants from using the infamous “free rent trick” in evictions. This may finally be the year that the Legislature passes this much needed reform to curb tenant abuses of the eviction process. Two bills, H.B. 1131 and H.B. 1110, have made their way to public hearing at the State House for a February 25th hearing before the Joint Committee on Housing. Landlords are urged to come and testify before the committee and otherwise support the bill by contacting their local representatives and senators.
The bills are designed to reform tenant abuses of the rent withholding law, including the infamous “free rent trick.” The free rent trick works like this: Tenant stops paying rent for various reasons, such as economic hardship or by design. After receiving a 14 day notice to quit for non-payment of rent, the tenant will immediately call the board of health to get the owner cited for minor or cosmetic code violations such as a hole in a window screen. Under current Massachusetts law, any code violation cited, however minor, allows the tenant to withhold rent until the eviction case is resolved. What usually happens is that the tenant skips out of town or agrees to a move out but never pays the months of accrued unpaid rent, leaving the landlord stuck with thousands of lost income to pay their mortgage and expenses.
Unlike most other states, there is no requirement in Massachusetts that the tenant post the withheld rent into some form of escrow account. There have been many instances where tenants have intentionally inflicted property damage to claim code violations or just made them up altogether.
A mandatory rent escrow law would require any tenant who exercises their right of rent withholding to pay the withheld rent into an escrow account until the unsafe conditions or code violations are repaired. After repairs are done, either the landlord and tenant agree on how the escrowed rent should be divided, or a judge orders a fair settlement. In most cases, the owner will get back most of the withheld escrowed rent. But the most important impact of a mandatory rent escrow law is that those nonpaying tenants who do not escrow can be promptly evicted for nonpayment of rent. Although nonpayment evictions will still take on average three months to resolve, much-longer-delayed evictions and the free rent trick will be stopped.
The bills will most benefit small landlords and owners-occupants of multi-family residences who rent out apartments. These property owners are typically on strict budgets, and any lost rent and attorneys’ fees will prevent them from paying their mortgages, real estate taxes and property expenses, potentially leading to default and foreclosure.
Innocent Small Talk Apparently Illegal, According to Boston Fair Housing Commission
The seemingly innocent question posed by a Boston rental agent to Gladys Linder when they were searching for an apartment was “Where are you from?”
“Venezuela,” she answered.
Gladys and her husband went on to find an apartment a month later without further incident. But she found the question about her national origin insulting and upsetting.
This is Massachusetts, and you know what came next.
Stokel filed a complaint with the Boston Fair Housing Commission, claiming that rental agent’s question was discriminatory and caused her to suffer fear, anxiety and sleeplessness over a three-year period.
Seriously?
Massachusetts General Laws Chapter 151B and the Boston Fair Housing Commission Regulations make it illegal for any licensed real estate broker “to cause to be made any written or oral inquiry or record concerning . . . national origin.”
Although this was the agent’s first discrimination complaint and there was no discriminatory impact on the tenants at all, the Commission found that the question itself was unlawful and issued one of the largest penalties I have seen in recent years — $10,000 in emotional distress damages, plus $44,000 in attorney’s fees and costs and a $7,500 civil penalty against the broker — a whopping $61,500 in total liability for this single question, not to mention the tens of thousands the agent had to pay for defense legal fees.
The case went up on appeal, and fortunately the Massachusetts Appeals Court exercised some common sense and slashed the award, likely by more than half pending further proceedings. But the court let stand the commission’s ruling that the one innocuous question did indeed violate the discrimination laws. So the broker will remain on the hook for a sizable liability.
Honestly, I’m having a lot of trouble with this ruling. It appears that the broker was simply engaging in some harmless small talk by asking the applicant where she was from. There was no evidence that the broker refused to rent to her or took any other discriminatory action against them. What if the applicant had a Southern accent and said she was from Alabama? That’s not illegal discrimination, but since she is from another county, it makes the question unlawful discrimination? Unbelievable! This is one of those cases where the anti-discrimination laws result in a totally absurd result.
So thank you to the Boston Fair Housing Commission for making small talk illegal. Unfortunately, the lesson to be learned from this case for rental agents and Realtors: Don’t ask a client where they are from. I kid you not. Only in Massachusetts…
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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who often consults with Realtors and rental agents on their legal and ethical duties. He can be reached at [email protected].
With an abysmal 20% compliance rate, the City of Boston Inspectional Services Department is giving Boston area landlords until August 31, 2013 to register their rental units under a new registration and inspection ordinance. Under the recently-approved ordinance, every private rental unit in Boston was supposed to have been registered by Aug. 1.
According to Boston.com, since the registration period began on May 1, only about 26,150 units have been registered with the city, said department spokeswoman Lisa Timberlake. That represents less than 20 percent of the estimated 140,000 total units that are required to register.
Under the new ordinance, rental units will be inspected by ISD every five years. Owner-occupied dwellings with 6 or less units are exempt from the inspection requirements (but still must register). Rented out condominium units must register as well.
Landlords who fail to register will be subject to fines and other action from the city, officials said. But, the city will likely use discretion in deciding whether to discipline landlords, according to Brian Swett, Boston’s Chief of Environment and Energy. “We’ll have to make an assessment as we get closer to Aug. 31,” he said. “If there are folks who are willfully not registering their properties that’s different from someone who hasn’t been informed about this yet by our outreach.”
Part independent living, part assisted living and part skilled nursing home, a Continuing Care Retirement Community (CCRC) offers a tiered approach to the aging process, accommodating residents’ changing needs. Upon entering, healthy adults can reside independently in single-family homes, apartments or condominiums. When assistance with everyday activities becomes necessary, they can move into assisted living or nursing care facilities within the same community. CCRCs give older adults the option to live in one location for the duration of their life, with much if not all of their future care already figured out.
With the Baby Boomer generation hitting retirement age, CCRC’s are now a multibillion-dollar industry, particularly among the upper-middle class and affluent. At least 745,000 older adults now live in such communities, according to the American Association of Homes and Services for the Aging. And those numbers are expected to rise as baby boomers hit their 70s.
This Isn’t Your Grandparents’ Nursing Home
Building styles of CCRCs run the gamut from urban high-rises to mid-rise suburban campuses to garden apartments, cottages cluster homes, or single-family homes. Some are as luxurious as five star hotels. Some CCRCs provide units that are designed for people with special medical conditions, such as Alzheimer’s disease. Because of the substantial up front Entry Fee, CCRCs are targeted toward a middle and upper middle class demographic. All CCRCs have large staffs, necessary to provide the diverse and elaborate services and amenities which are provided as part of the CCRC model and are demanded by those seniors interested in this type of housing and lifestyle.
CCRC residents typically pay a hefty entry fee and a monthly fee in return for the “promise” of care for the rest of the residents’ lives. Of course, this “promise” sets CCRCs apart from over-55 and assisted living facilities and nursing homes. And CCRCs are very distinct from the ‘aging in place’ model which may require extensive adaptation of a residence for the physical needs of an aging senior and the delivery of services through various community and other means. CCRCs are designed from the ground up to provide increasingly intensive services under the ‘continuum of care’ model to accommodate the needs of their residents.
The continuum of facilities and services available to CCRC residents typically includes:
An independent residential unit with one or more meals, housekeeping, social and recreational activities, and some transportation.
A separate assisted living area on the same campus, where additional support services are provided. Some of these are secure for people with memory loss.
A separate health care and skilled nursing facility on the premises, with nursing and/or physical rehabilitation, either short-term or long-term.
The on-site community, services, healthcare and activities are factors that attract many people to CCRCs. In addition entry into a CCRC requires only one major transition to a new “home” for those resident for whom stability is appealing or necessary. The facilities and options will vary widely so residents and their families considering this housing option are cautioned to thoroughly review each project on an individual and intensive basis.
It is also important to recognize that entry into the skilled nursing facility that is a part of the CCRC cannot in all cases by guaranteed. In the event that the nursing units are filled or otherwise unavailable, typical CCRC agreements permit placement of an ailing resident in an alternate nursing facility. This reality should be carefully reviewed with the CCRC and with a potential resident and information gathered with regard to the likelihood of such an event.
CCRCs generally maintain a diverse suite of on-site medical and social services and facilities. Residents may enter a CCRC while still relatively healthy and then move on to more intensive care as it becomes necessary. CCRCs offer various options for lively communal living not available in many age-limited (over-55) properties and available only with more effort for seniors who may choose to remain in their own homes.
CCRC Fee Structures: Costly, Confusing And Not Without Risk
The downside of a CCRC is the substantial cost of the Entry Fee and the confusing structure of the contracts and agreements between the CCRC and the resident. Prices depend on the amount of care provided, the type of contract, and the unit’s size and geographic location. Entry fees may range from $100,000 to more than $500,000 depending on the CCRC project, real estate market and factors such as whether or not the Entry Fee will be refunded in full or in part at such time as the resident leaves the CCRC or passes away. Monthly Service Charges and Fees range widely based, not only on the real estate market and prevailing regional costs but also the type of contract between the CCRC and the resident. Unlike other types of senior housing, the costs of CCRCs is highly variable and has been difficult to quantify in national surveys. For more info, here are links to a recent cost surveys by Metlife Mature Market Institute and Genworth Financial.
Seniors often use the proceeds from the sale of their home to pay the Entry Fee of the CCRC. However, the resident should be cautioned than in most CCRCs, the payment of the Entry Fee is not the same as the purchase of an apartment or real estate of any kind. The agreements in many cases are akin to a lease. Moreover, to the extent that the current federal and state tax law (also highly changeable) results in a taxable gain upon the sale of the residence – no “roll over” to defer a gain of potentially highly appreciated real estate will be available upon entry into a CCRC.
Nationally, CCRCs typically provide for three basic fee schedules:
Extensive contracts, which include unlimited long-term nursing care at little or no increase in the monthly fee. This arrangement requires residents to pay a higher fee initially.
Modified contracts, which include a specified duration of long-term nursing care, beyond which fees rise as care increases.
Fee-for-service contracts, in which residents pay a reduced monthly fee but pay full daily rates for long-term nursing care.
CCRC contracts have evolved over time with new and confused variations within each fee schedule. For example, a CCRC might offer two different extensive contracts and one modified contract, with different levels of refundability for each. CCrcdata.org provides a national directory of CCRCs and general information regarding the amenities provided by a CCRC and the contract terms. Many facilities now provide samples of the their contract and related documents on-line in PDF format. Care should be taken, however, to review not only the CCRC contracts but also the financial information and individual project data to determine whether or not the particular CCRC being reviewed is financially stable and likely to remain so over time.
CCRC Entry Requirements
Most CCRCs require that a resident be in good health, be able to live independently when entering the facility, and be within minimum and maximum age limits. As a prerequisite to admission, facilities may also require both Medicare Part A and Part B, and perhaps Medigap coverage as well. A few are now even requiring long-term care coverage as a way of keeping fees down. Some CCRCs are affiliated with a specific religious, ethnic or fraternal order and membership in these groups may be a requirement. Of course, applicants will have to demonstrate that they have the means to meet the required fees. The applicant may be placed on a waiting list, since CCRCs have, until relatively recently been highly sought after.
CCRC residents usually self-fund their residency and care out of their own pockets. As noted above, CCRCs are generally targeted toward seniors with middle to upper class means. However, Medicare, and at times Medicaid, can be used to pay for certain services, and most CCRCs accept either Medicare or Medicaid. Although Medicare does not generally cover long-term nursing care, it often covers specific services that a CCRC resident might receive, such as physician services and hospitalization. Because the financial requirements for residence are fairly strict and the costs are relatively high, very few CCRC residents are eligible for Medicaid.
Recent Financial Challenges
According to a recent survey prepared by underwriter of financing for non-profit senior living providers, there were approximately 1850 CCRCs in the United States as of the end of 2009. Approximately 30% of CCRCs currently under development are for-profit status according to the survey. This represents a shift from the current norm of non-profit ownership of CCRCs. Profit and non profit projects alike, are developed utilizing complex financial instruments including municipal bonds, tiered financings, and oftimes complex management contracts between ongoing non-profit management companies controlled by the project developer. Moreover the CCRC “model” relies on the up front provision of large sums of money from each resident raising issues of financial management, disclosure and security of such deposits.
Due, in part, to the recent financial crises, the Erickson Retirement Communities, Inc. (the developer of the various ‘Erickson’ communities) was forced to reorganize in Chapter 11 Bankruptcy and its real estate and financial assets under management were acquired by in an auction. New capital was injected into the operations of all of the individual CCRCs by the successful bidder. Notwithstanding the financial concerns, occupancy rates and confidence in the individual Erickson communities (as well as other CCRCs nationally) has remained high.
The risk in the CCRC industry has led the U.S. Senate Special Committee on Aging to seek a Government Accountability Office investigation into CCRC operations and finances. Although the prospects for the industry remain positive, given importance to seniors of maintaining stability in their housing accommodations, a thorough review of a particular CCRCs financial position is an important component of counsel’s overall review of a CCRC project.
Despite their risks, CCRCs still hold widespread appeal. They promise to alleviate one of the biggest worries facing families with aging loved ones: how to secure, and in many cases pay for, future long-term care.
How To Evaluate A Facility And CCRC Contract
Deciding on a CCRC may be an once-in-a-lifetime choice, and it is a decision that should be made carefully and with the benefit of expert counsel. CCRC contracts are extremely complex and variable. An experienced elder law attorney’s assistance is, in my opinion, invaluable in selecting a community and reviewing its contract. Assistance from a certified financial planner may also be beneficial.
Philip Posner, Esq. is a Massachusetts attorney with offices in Wakefield, Massachusetts. Phil practices primarily in land-use law. Phil can be reached at [email protected] or 781-224-1900.
Landlords Could Be Held Responsible for Tenant Paralyzed Jumping from Trampoline into Kiddie Pool
I don’t write a lot about premises liability in this blog, but this tragic case out of my hometown of Framingham may be a classic example of the saying that “hard cases make bad law.” The Supreme Judicial Court has granted a new trial to a man paralyzed by jumping off a trampoline into a kiddie pool while playing with his small son. The case is Dos Santos v. Coleta(SJC – 11188). This is a case which will get all the tort-reformers screaming in protest, but it is evident that premises liability law in Massachusetts keeps on evolving and not in a good way for property owners.
The moral of this case for landlords and all homeowners is to not leave potentially dangerous contraptions in yards for tenants and kids to get injured on. Also, make sure you have liability insurance coverage for at least $1 Million, and look into getting an excess umbrella policy for up to $5 Million.
Summer Fun Goes Terribly Wrong
In the summer of 2005, Cleber Dos Santos lived with his wife and son in one unit of a two-family home in Framingham that he rented from the Coleta family. The landlords, who lived in the other unit, set up a trampoline immediately adjacent to an inflatable kiddie pool in the backyard. The landlord disregarded warnings printed on the side of the pool cautioning against jumping or diving into the pool. He knew that setting up the trampoline next to the pool might be dangerous but thought it would be “fun.”
The landlords moved to South Carolina on July 31, but they maintained ownership of the home and continued to rent the other unit to Dos Santos and his family. The landlords left the pool and trampoline in the backyard and understood that both items would continue to be used by their friends and family.
On the evening of August 2, 2005, Dos Santos, who had never before used the trampoline, came home from work and decided to play with his son on the trampoline while his wife recorded a video of them to send to their extended family in Brazil. He decided to entertain his son by flipping into the pool. He severely underrotated the flip, entered the water headfirst, and struck his head on the bottom of the pool. As a result of the impact, Dos Santos sustained a burst fracture of his C-5 vertebrae, and is permanently paralyzed from the upper chest down. He has been hospitalized ever since with medical bills exceeding $700,000.
SJC Clarifies Open and Obvious Danger Rule
Perhaps not surprisingly, the jury rendered a defense verdict on the basis that Dos Santos’ backflip from a trampoline into a kiddie pool was an “open and obvious” danger. But the SJC found the trial judge’s jury instructions lacking, holding that even if the jury believed that the danger present was open and obvious, the jury should have considered whether the absentee landlord should have removed or remedied the dangerous trampoline/pool setup from the backyard.
Having established that the existence of an open and obvious danger will not necessarily relieve a landowner of all duties to lawful entrants with regard to that danger, we set out to answer the following principal question: where the duty to warn has been negated, in what circumstances will the duty to remedy nevertheless exist–or, in other words, in what circumstances “can and should a landowner anticipate that the dangerous condition will cause physical harm to the lawful entrant notwithstanding its known or obvious danger”?
In plain English, Judge Cordy is basically saying that performing a backflip from a trampoline into a kiddie pool may be stupid and dangerous, but it’s also just as stupid and dangerous for a landlord to leave the deadly contraption out in the backyard for anyone to get injured on.
The justices ordered a new trial in the case, so this tragic 8 year legal saga will continue on. (Also remember that it appears that the landlords are covered by a liability insurance policy, the amount of which is unknown).
In sum, the SJC has now shown that Massachusetts premises liability law continues to shift towards even greater responsibility and liability for rental property owners.
Ruling Calls Into Question Boston Ordinance Prohibiting 5 or More Students In One Unit
Those screams you are hearing now on Comm. Ave. aren’t the students. They are the landlords who are undoubtedly rejoicing upon news that the Supreme Judicial Court just issued a major ruling in how student rentals occupancy limits — indeed all rentals — will be treated by housing inspectors and licensing authorities. This is an important decision which may have far-ranging implications across the state and not just to student housing.
The closely watched case is City of Worcester v. College Hill Properties (download link to case here) where the SJC has held that renting to 4 or more students in one apartment unit of a two and three family home is not a “lodging house” requiring a special license under the Massachusetts lodging housing law, provided that the apartment meets all other sanitary and building code square footage occupancy thresholds. The state code requires 150 s.f. of living space for the first occupancy and 100 s.f. for each additional person (3 occupants = 350 s.f. of living space), and 70 s.f. of bedroom space for the 1st person, plus 50 s.f. for additional person (120 s.f. for 2 persons in one bedroom). This decision applies state-wide and to every type of rental housing, including multi-families, buildings and townhouses.
For history buffs, the opinion is fun to read as it traces the Lodging House Law back to the days of brothels, houses of ill-repute and tenements. Using a common-sense analysis, Justice Lenk reasoned that lodging houses, which are essentially temporary rentals of rooms without such amenities as a separate kitchens and bathrooms, are quite different from the modern day apartment units with its more expensive amenities. The court ruled that if an apartment satisfies the state sanitary and building code provisions for the amount of living/sleeping space, utilities, egress, etc., then it would be not be deemed a lodging house despite the number of unrelated occupants.
City of Boston Undergrad Student Rule On the Chopping Block?
In the City of Boston, a new zoning ordinance went into effect in 2008 prohibiting 5 or more undergraduate students from living in one apartment unit. There is certainly a question as to whether the College Hill ruling effectively overrules this ordinance. We will have to see whether the ordinance is challenged in court.
The other impact of this ruling is we should see an push for even more increased density in apartment rental housing which is exactly what Mayor Menino and the City of Boston doesn’t want.
New Online System Enables Landlords To Screen Tenants for Prior Evictions/Problems
After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types. Case information can be accessed via the Trial Court’s eAccess internet site at www.masscourts.org.
The site allows users to conduct searches by case type, case number or case name. Users can find detailed instructions on the Housing Court page of the Trial Court’s website. Electronic access to all publicly available case types also continues to be available at public access computers at the five Housing Court divisions and at courthouses throughout the state.
This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case. Obviously, a rental applicant with a lengthy eviction history would not be a good candidate for rental housing.
I would caution landlords that despite whatever information may be gleaned from the new system, the fair housing and discrimination laws still remain in place. Under Massachusetts law, a landlord cannot refuse to rent to a tenant on the basis of the tenant’s race, color, national origin, ancestry, gender, sexual orientation, age, marital status, religion, military/veteran status, disability, receipt of public assistance, and children (except for an owner occupied two family dwelling).
Denial of rental applications must be based on non-discriminatory reasons, and a lengthy eviction history where the tenant was found liable for nonpayment or other serious violations of a lease would arguably qualify as such.
The Boston City Council and Mayor Menino’s Office have passed a sweeping new rental property registration and inspection ordinance which is now effective for the year 2013. The new ordinance requires, among other things, that all rental property owners register with the Inspectional Services Department (ISD), and are subject to inspections every 5 years. Details of the new ordinance are summarized below.
Who is covered?
All rental property owners, regardless of state residence, must register their rental properties with ISD. This also includes condominium units which are rented out. Excluded from the inspection requirements (but not the registration requirements) are owner-occupied buildings containing no more than 6 units, licensed lodging houses, government owned or operated housing.
What are my registration obligations?
Landlords are required to register with ISD no later than July 1 of each year. A fee of $25/unit will be charged. All non-resident owners must designate a Boston-based resident agent to accept service of process on the owner’s behalf. You can now register online at Cityofboston.gov or download an application from the same site. The City has also posted a Frequently Asked Questions Page here.
When will my rental property get inspected?
ISD will inspect rental properties at least once every 5 years. ISD intends to first inspect the “problem” properties which have a history of code violations. Landlords will receive a notice from ISD about the inspection. Landlords have the option of having an outside “authorized inspector” perform the inspection at the owner’s expense. Annual inspections conducted by the Boston Housing Authority (BHA) and similar government programs will be accepted by ISD. For most buildings, the inspection fee is $75 for the first two units, and $50/unit thereafter.
Are there any new signage requirements?
Yes. A sign of not less than 20 square inches must be posted adjacent to the building’s mailboxes or other conspicuous location. The sign must contain the contact information of the landlord and property manager, if any.
My property has been cited for violations in the past. Will this be a problem?
It could be. The new ordinance has a new classification for “Problem Property” if:
the police have been called to the property at least 4 times in one year; or
4 or more noise complaints; or
4 or more ISD complaints for unsanitary conditions/code violations
Problem Properties must be inspected every year and the owner must submit a management plan to address the issues.
How do I coordinate the inspection with my tenants?
A tenant is entitled to “reasonable advance notice” before an inspection. If access is denied, the landlord must notify ISD within 7 days, and if ISD verifies same, the landlord will be exempted from inspection for 1 year. Tenants are entitled to a copy of all inspection reports.
I am buying a rental property. By when does the new owner need to register?
ISD must be notified of the sale of any rental property 30 days after the closing, and the new owner must register with ISD within this 30 day window. Within 90 days of closing, the new owner must complete any pending inspection or submit an application for approval of an alternative inspection plan.
Under the new Massachusetts Domestic Violence Act recently signed into law, victims of sexual assault and stalking have the right to break their leases without significant financial penalty, have the landlord change their locks, and other important protections. The important provisions of the new law are as follows:
In order to break a lease, victims are required to provide notice to landlords that they were subject to a sexual assault or rape or under imminent threat of same within three (3) months of the incident
Landlords may request supporting documentation such as a police report or restraining order (which they must keep confidential).
Provided the tenant victim provides the proper notice, she will be relieve of financial liability for 30 days or one full rental period of rent, plus a return of any last month’s rent and security deposit.
The new law applies to anyone in the renter’s household.
Victims of sexual assault or stalking may require that the landlord change the unit’s locks within 48 hours at the tenant’s expense. If the landlord fails to act, the tenant may change the locks herself.
If the perpetrator of the sex crime or threat is a household member (i.e., spouse/boyfriend), the landlord may authorize the lock-out the perpetrator by changing the locks and withholding the new key.
Landlord’s who comply with the new law are generally absolved from liability to the perpetrator.
Noncompliance with the new law can result in damages equal to 3x the rental amount, plus payment of the tenant’s legal fees, which may be set off against any unpaid rent.
Richard D. Vetstein, Esq. is a Massachusetts real estate attorney who frequently advises landlords on their legal obligations under Massachusetts landlord and tenant law.
This post will provide you with frequently asked questions concerning Massachusetts snow and ice removal law.
I am a homeowner and rental property owner. Am I legally required to clear snow and ice after a storm?
The law now in Massachusetts is that all Massachusetts property owners and landlords are legally responsible for the removal of snow and ice from their property. In 2010, the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent which protected property owners from “natural accumulations of ice and snow,” and announced this new rule. My prior post on the case can be read here. The rule applies across the board, to homeowners, landlords, commercial business owners, restaurants, everyone.
I am a landlord. How long do I have to shovel snow and ice on my rental property?
There is no clear cut answer to this question, and juries and courts will ultimately decide what is reasonable. The City of Boston’s policy is to give businesses 3 hours to clean snow, and 6 hours to residents. My advice is to shovel and treat snow and ice early and often. Even a thin coating of black ice can cause someone to slip and fall and seriously hurt themselves. (Admit it if you’ve dumped on your rear end like I have!). If you are an out-of-town landlord, you must hire someone to shovel your snow.
My lease states that the tenant is responsible for snow shoveling. Will that protect me from liability?
Probably not. A person who is injured due to untreated snow or ice will likely sue both the property owner and the tenant. The property owner must ultimately ensure that the property is safe for visitors. The landlord may bring a claim for contribution/indemnification against the tenant.
I live in Boston, and I heard I have to shovel the public sidewalk in front of my house after a storm. Is that true?
Yes. On top of their added responsibilities, property owners in several Massachusetts communities, including Boston, Cambridge, Newton, Lynn, and Worcester, are required by local ordinances to clear municipal sidewalks in front of their residences or businesses. The City of Boston mandates clean sidewalks within 6 hours of a storm; Worcester is 12 hours.
Will my homeowner’s or CGL insurance policy cover any injuries from slip and fall on snow/ice?
Yes, usually. The standard Massachusetts homeowners insurance policy and commercial general liability insurance policy (CGL) will have liability coverage for slip and falls on property. Make sure you have ample liability coverage of at least $500,000 to 1 Million. (You can never have enough insurance!). As with any insurance question, it’s best to contact your personal insurance agent.
If you have additional questions, please ask them in the comment forms below!
Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who advises property owners and landlords as to liability issues. Please contact him at 508-620-5352 or at [email protected].
Does Lodging House Law Apply to Student Apartments?
The Massachusetts Supreme Judicial Court has agreed to hear the City of Worcester v. College Hill Propertiescase which may significantly impact renting apartments to students and in other multi-family situations. The justices will decide whether renting to 4 or more unrelated persons in one apartment unit requires a special license under the Massachusetts lodging housing law, which would require fire sprinklers and other expensive upgrades. The SJC will hear oral arguments in the case on January 7, 2013.
The case arose at The College of the Holy Cross in Worcester where several landlords rented out apartments to groups of unrelated students. The Housing Court and Appeals Court had previously ruled that the landlords ran afoul of the lodging house law by renting to more than 3 unrelated persons in one rental unit without the special lodging house license.
Impact Outside College Towns?
Prior to the Appeal Court’s decision, housing authorities typically allowed 4 or more unrelated adults to occupy single apartments as roommates without a lodging license provided that minimum space requirements were met: 150 s.f. of living space for the first person, 100 s.f. for each additional person (3 occupants = 350 s.f. of living space); 70 s.f. of bedroom space for 1st person, plus 50 s.f. for additional person (120 s.f. for 2 persons in one bedroom).
In the City of Boston, a new zoning ordinance went into effect in 2008 prohibiting 5 or more undergraduate students from living in one apartment unit. We will see how the Boston Inspectional Services Dept. interprets the College Hill ruling.
The SJC’s decision will hopefully clarify this grey area of Massachusetts rental property law.
Concern Over 60 Day Supply Provision & Federal Ban On Pot
Burned up Massachusetts landlords are fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a marijuana dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws.
Skip Schloming, executive director of the state’s Small Property Owners Association, expressed deep concern about the 60-day supply provision:
“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”
The SPOA called for a 6 month delay in implementing the law.
I hate to be a “buzz kill” for medical marijuana users, but I believe the landlords have a legitimate gripe. In the landlord-tenant context, landlords own the property and remain primarily responsible for what goes on in their apartment buildings. I’m no weed expert, but imagine a small studio apartment loaded with a veritable jungle of pot plants — a prospect which would frighten any residential landlord for a number of reasons.
First, a medical marijuana grower could be targeted for burglarization. If they are truly sick and broke enough to qualify as home growers, then they would be equally vulnerable to pot bandits stealing their stash.
Second, maintaining marijuana cultivation requires specialized equipment not necessarily compatible with close-knit apartment living. I did some research, and found this website dedicated to hydroponic growing equipment. Growing marijuana plants is fairly sophisticated. Growers need to monitor pH and moisture levels, carbon dioxide outputs and germination of seeds. Failure of this equipment could conceivably cause mold, mildew and other damage to interior units.
Bay State landlords are also concerned about running afoul of federal drug laws as marijuana remains a federally prohibited controlled substance. Landlords are begging Beacon Hill lawmakers to give them the right to refuse to rent to tenants who grow pot for medical use over fears their property could be seized. As reported in the Boston Herald, commercial and residential landlords are right to worry, drug forfeiture attorneys say, because landlords can be charged as conspirators if their tenants are targeted by the feds.
No matter landlords’ concerns, medical marijuana is here to stay in Massachusetts. It will be up to the state Department of Public Health — the same agency rocked by the highly publicized state crime lab fiasco — to enact sensible rules and regulations governing medical marijuana. Let’s hope that the DPH considers the practicalities and logistics for marijuana growing in tight-knit apartment buildings. Strict rules on home growing eligibility are a must. Same for the approval of safe, tested growing equipment. Immunizing landlords from liability for medical marijuana growing or use by tenants would be another good idea.
All Politics Aside, It’s Time To Bring Housing & Real Estate Back To the Forefront
In the most tweeted, Facebook-ed and instant polled Presidential Campaign ever, there is one topic which has been met with surprisingly deafening silence: the U.S. Housing and Real Estate Market. During last week’s debate, we heard a lot about tax plans and cuts, energy, health care and jobs, but nothing on the real estate market. Nothing…This year’s presidential candidates have mostly avoided discussing an industry that’s largely responsible for the last five years of economic pain. But why?
For sure, the subject of housing remains an extremely sensitive one. President Obama might prefer that the real estate market, whose imbalances sparked the financial crisis, to remain a ghost issue because of a lackluster record at combating the foreclosure epidemic. He is also blamed for not doing enough on the loan modification front with the dismal HAMP and HARP programs. Mitt Romney, meanwhile, might like to steer clear of the topic because a hard stance on housing could alienate voters whom he needs to win. I’m not here to debate one particular side or candidate, but rather to simply pose the question of why no talk on real estate?
Obama Falls Short of Expectations?
“Obama’s major housing initiatives have fallen short of expectations, and so Obama doesn’t have big victories to point to,” said Jed Kolko, chief economist for listing service Trulia. “The housing market is still struggling in many parts of the country, so this is not a problem that’s been solved.” The administration’s flagship relief program, the Home Affordable Modification Program (HAMP), has helped 1 million homeowners obtain lower interest rates, principal reductions, more time to pay their mortgages or any combination of the three. But that pales in comparison to the 3 to 4 million homeowners whom the program was supposed to help. Meanwhile, the Home Affordable Refinance Program (HARP), designed to help 5 million homeowners refinance their mortgages into lower interest rates, has benefited only about 1.5 million homeowners.
Romney Gun-Shy On Housing?
Romney’s housing platform includes the potential elimination of Fannie Mae and Freddie Mac, and that prospect may be just too scary and radical to everyday voters and homeowners who have relied on the government giants to stabilized the formerly free-falling real estate market. “To stake out what you think Fannie and Freddie’s future is is to alienate somebody,” commented Mark Calabria, director of financial regulation studies at the Cato Institute. “Realtors and home builders tend to be politically active — and Republicans,” noted Mr. Calabria. Indeed, Romney’s free-market stance on housing, if articulated bluntly, could unsettle many distressed homeowners as well. He has said that he believes that the housing market should naturally “hit bottom,” and has harshly criticized Obama’s relief programs.
Let’s Get The Housing Dialogue Going!
Over the past several months, I’ve enjoyed healthy (and even civil) political discussion on the issues on my Facebook feed. (Please join in!). The real estate market and housing alwayscomes up, whether it’s in the context of folks not able to refinance their underwater mortgages, the loss of their equity, or the impact of unemployment on the general real estate sector. Granted, the real estate market has made significant gains since the bottom fell out in 2008, but folks are still hurting out there and it’s really been the Fed and its low interest rates which have largely kept the market from imploding. So, we shouldbe talking about all the issues. And that means federally assisted refinancing for underwater mortgages, Fed policy on interest rates, and the future of the GSE’s. Oh and by the way, where did all that foreclosure crisis settlement money go? I have yet to hear about anyone who has received any assistance from that fund.
Well, if Obama and Romney aren’t going to talk housing and real estate, we can do it here on this blog. Feel free to post your comments, diatribes or soapbox speeches in the comment section below. You can use the Facebook comments too. Keep the debate civil please!
School is back and summer is over. September 1 and the start of the new rental cycle is right around the corner. It’s time to review my best practices to get trouble-free, paying tenants in your Massachusetts rental property.
Screening Prospective Massachusetts Renters: What You Can and Cannot Ask
Landlords canlegally ask prospective renters about the following:
income and current employment
prior landlord references
credit history
criminal history
Your rental application should include a full release of all credit history and CORI (Criminal Offender Registry Information). Use CORI information with caution, however, and offer the tenant an opportunity to explain any issues. Landlords should also check the Sex Offender Registry as they can be held liable for renting to a known offender. Use the rental application and other forms from the Greater Boston Real Estate Board.
Landlords cannotask about the following:
race, color, national origin, ancestry, or gender
sexual orientation
age
marital status
religion
military/veteran status
disability, receipt of public assistance
children.
If you deny a renter’s application, it should be based on financial reasons, such as questionable credit, income or rental history. Stay away from reasons related to children, public assistance and the like. Be aware that this time of year the Massachusetts Commission Against Discrimination and Attorney General’s Office send out dummy rental applicants in an attempt to catch unwary landlords who deny housing for discriminatory reasons.
Students, especially undergraduates, often create problems for landlords. It’s important to meet with students personally before signing the lease and firmly explain a “no tolerance” policy against excessive noise, parties and misbehavior. Remember, under a two year old Boston zoning ordinance, no more than four (4) full time undergraduate students may live together in a single apartment.
Careful screening of tenants is far less expensive than the cost of evicting a problem tenant.
My Property Has Lead Paint. Can I Refuse To Rent to Tenants With Small Kids?
Under the Massachusetts Lead Paint Law, whenever a child under six years of age comes to live in a rental property, the property owner has a responsibility to discover whether there is any lead paint on the property and to de-lead to protect the young children living there. A property owner or real estate agent cannot get around the legal requirements to disclose information about known lead hazards simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. Landlords cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.
For more information about Massachusetts rental screening, landlord-tenant law and evictions, please read these articles or contact me below. I would be happy to help you get good tenants.
Why Would Anyone Want To Be A Landlord In Massachusetts?
I just settled a very troubling landlord-tenant case which demonstrates everything which is wrong and unfair with Massachusetts landlord-tenant and eviction law from the landlord perspective. This horror story is played out every Thursday in the summary process sessions of District and Housing Courts across the state. The laws which favor tenants so dramatically were passed decades ago in the 1970’s when tenements and slumlords still existed. Those days are long gone, but the outdated laws remain on the books, giving Massachusetts the well-deserved reputation of being one of the most unfriendly places to own investment property. The time has come to restore some semblance of legal balance between small property owners and tenants.
A Familiar Horror Story
The landlord is a 70 year old woman who rented out her family’s old farm house. The tenants lived there under a month-to-month tenancy at will agreement for 6 years without incident. The owner wanted to move back into the home for financial reasons, so she informed the tenants who immediately started threatening to call the board of health. Mind you, the owner had the right to ask the tenants to leave for any reason at all under a 30 day tenancy at will. The owner was forced to serve a 30 day notice to quit which resulted in the tenants’ immediate report to the local board of health and withholding of rent. The owners were cited for several minor code violations which they addressed promptly, but every time the health inspector came out, the tenant “reported” new alleged problems (likely caused intentionally by the tenants), and often did not allow the inspector to gain access. When the owner started an eviction action, and the tenants predictably shot back with a slew of counterclaims. Because the law is so favorable to the tenants, as I will discuss below, the owner was forced to pay the tenants money to get them to move out. Even though the owner felt she addressed all the issues promptly and competently, the existence of any code violation, however minor, rendered her case “dead on arrival” in Housing Court. To get rid of the headaches and potential liability, the landlord had to pay ransom money and waive the unpaid rent.
Unfortunately, this story is all too common in Massachusetts eviction courts, and something has to be done.
A Legal Minefield For Landlords
For landlords, navigating Massachusetts landlord-tenant law is like walking barefoot through a IED-filled field in Afghanistan. At some point, you’ll likely blow off a leg. Allow me to outline just a sampling of these laws and the penalties for landlords’ non-compliance:
Breach of implied warranty of habitability: The first thing a savvy tenant will do after receiving an eviction notice is call the board of health to get the owner cited for code violations. Any violation, however minor, effectively enables the tenant to live rent-free during the case by withholding rent, and the owner will be compelled to make the necessary repairs while the eviction is pending. There have been many instances where tenants have intentionally inflicted property damage to claim code violations. Other penalties: reduction or elimination of rent owed; tenant cannot be evicted; triple damages; payment of tenant’s attorneys’ fees.
Breach of quiet enjoyment: This is another tenant favorite claim. It used to be for when slumlords would shut off utilities to tenants, but that rarely happens anymore. I’ve seen this used when tenants are “inconvenienced” by landlords’ repeated attempts to access the premises to make repairs. Penalties: tenant gets to stay in possession; up to 3 months’ rent or actual damages, whichever is more; payment of tenant attorneys’ fees.
Retaliation: Even if the landlord can evict a tenant at will for any reason, the landlord cannot “retaliate” against them if they make any complaints about property conditions. This is why tenants will immediately start squawking about property issues when faced with eviction, because the retaliation law will protect them even though they are not entitled to lifetime occupancy. Penalties: tenant gets possession; up to 3 month’s rent in damages; payment of tenants’ attorneys’ fees.
Security deposit/last month’s rent violations: Oh, where do I start on this one. As I’ve written about extensively here, Massachusetts landlords need a Master’s degree in Accounting to comply with the Security Deposit law and all of its procedural traps. From giving a special receipt and statement of condition, to putting the money in a special separate account, to paying interest every year, even one minor slip up will subject the landlord to mandatory triple damages and payment of tenants’ attorneys’ fees. This can torpedo an eviction case from the get-go.
Consumer Protection/Chapter 93A: If all these minefields weren’t bad enough, at the end of the day, tenants are allowed to claim that any of the above warrants an award of triple damages and attorneys’ fees under the Mass. Consumer Protection Act.
Time for Meaningful Legal Reform
As I mentioned earlier, the vast majority of the laws protecting tenants were passed in the 1970’s when rental housing was far more problematic than it is now in 2012. Due to political pressure from tenant activists and liberal groups, lawmakers have been reluctant to level the playing field. Unfortunately, these draconian laws disproportionately hurt the small property owners who own 80% of the rental stock in Massachusetts. Laws which make investing and managing rental property hurt the economy and result in higher rents. There are several bills pending at the State House which will provide landlords with more incentive to own rental property in Massachusetts. The most sensible proposal is the much-awaited rent escrow law.
A. Rent Escrow
Massachusetts is one of the minority of states which does not have some form of rent escrow law. The need for one is absolutely critical because without it landlords incur large losses when the tenant’s defensive claims of “bad conditions” turn out to be minor, nonexistent or, worse yet, the result of intentionally inflicted damage to the property by the tenant in order to live rent-free.
A mandatory rent escrow law would require any tenant who is claiming rent withholding to pay the withheld rent to a local court month by month until code violations are repaired. After repairs are done, either the landlord and tenant agree on how the escrowed rent should be divided, or a judge orders a fair settlement. In most cases, the owner will get back most of the withheld escrowed rent. But the most important impact of a mandatory rent escrow law is that those nonpaying tenants who do not escrow can be promptly evicted for nonpayment of rent. Although nonpayment evictions will still take about three months, and owners will lose about three months of rent, much-longer-delayed evictions and the free rent trick will be stopped.
B. Security Deposit Reform
Presently, the security deposit law provides mandatory triple damages and payment of tenants’ attorneys’ fees for a violation however minor. The law should be reformed to provide a safe-harbor and discretionary penalties for when landlords make a good faith effort to comply but get caught up in the procedural mess, like for example if they put the deposit in a savings account instead of a special deposit account.
C. Remove Automatic Possession For Tenants
Presently, the law is drafted so that if a tenant prevails on any number of claims for property conditions, etc., they most likely cannot be evicted. This is especially unfair in the tenancy at will context where the landlord does not need any reason to evict a tenant. The result is that tenants get free passes and occupancy for life as long as they can dig up a counterclaim or two. This needs to be changed.
What Property Owners Can Do: Lobby and Speak Out
The tenant community, backed by well-funded public interest legal services groups, have a strong lobby at the Legislature and love to portray these issues as a form of “class warfare.” In the end, however, everyone gets hurt, because if it’s more expensive to own rental property in Massachusetts, those costs will be passed on to tenants.
Visit your local legislator’s office during office hours and speak to them (or their aids) about your concerns on the issues. In many cases, they won’t know about the bills and you will have to educate them. Send letters and emails to your legislators identifying the bill numbers and explaining why you support or do not support these bills. Go to fund raisers for your Representatives and Senators. Let them know that you vote and that you want your vote to count!
I’ve recently become aware that some Massachusetts landlords are requiring that tenants procure their own policy of renter’s insurance as a condition of leasing. In fact, MSN Real Estate did a nice write up about the practice here. But I am also hearing about a dark side to this practice where some landlords have a kickback arrangement with the insurance provider where the landlord receives compensation for any policy taken out by a tenant.
Renter’s insurance is almost always a good idea, but under Massachusetts law, can a landlord require that a tenant get a policy (if the tenant doesn’t want one) and must it disclose a referral relationship with the insurance provider?
Landlords Should Be Careful About Renter’s Insurance Requirement
In light of recent court decisions, landlords should re-examine the legality of a mandatory renter’s insurance policy requirement. In the recent Hermida v. Archstone class action ruling, which considered amenity fees under the Massachusetts security deposit statute, the court held that landlords can only charge first and last month’s rent, a security deposit, and a lost key fee at the beginning of a tenancy, and no other types of fees. Any other type of fee or financial obligation required to be paid by the tenant at the beginning of the lease could be deemed illegal under the Mass. Security Deposit law, Mass. Gen. Laws ch. 186, sec. 15B. Accordingly, landlord must be very careful about what and how much they charge tenants at the inception of leases, over and above the standard rent deposits and new key fee. At the very least, renter’s insurance should be optional, and any affiliate or kickback arrangement should be fully disclosed to the tenant. This still may not prevent a landlord from getting sued over a mandatory renter’s insurance requirement.
Renter’s Insurance Still Smart Choice
That said, I always recommend that tenants get their own renter’s insurance policy. It’s fairly inexpensive and provides protection to your personal belongings. Massachusetts law does provide for a minimum of $750 per unit for tenant relocation assistance due to fire displacement. However, that is not nearly enough for the average renter.
Has your landlord required that you purchase renter’s insurance? Have they disclosed any referral relationship? I’d like to hear from you. The practice may well be illegal.
Another Expansion Of Massachusetts Landlord Liability
In yet another case demonstrating Massachusetts’ inhospitable legal environment towards residential landlords, Northeast Housing Court Judge David Kerman has ruled that an owner of a mixed used residential – commercial building is “strictly liable” for a drunk tenant’s fall through a defective porch guardrail. The 17-page ruling is Sheehan v. Weaver, and is embedded below. The imposition of strict liability, sometimes called absolute or no-fault liability, makes landlords 100% liable for the injuries of tenants where there is a building code violation, regardless of whether the tenant was equally at fault for the accident. This is a troubling ruling and another reason supporting the notion that Massachusetts is landlord unfriendly!
Faulty Porch Guardrail
The landlord, David Weaver, owned a building with three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. One of Weaver’s residential tenants, William Sheehan, fell through a porch guardrail, several stories onto the asphalt pavement below, suffering serious injuries. There was evidence that Sheehan was intoxicated, however, the connection of the guardrail to its post gave way because it was defective and in violation of the Building Code.
After a four-day trial in the Housing Court, a jury found for the tenant on the negligence claim, awarding approximately $145,000 after a 40% reduction for the plaintiff’s own negligence. The jury also found the landlord strictly liable, assessing $242,000 in damages.
Building Code Violation At Issue
The Massachusetts State Building Code provides for strict (100%) liability for any personal injuries caused by any building code violation at any “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” The landlord argued that the primarily residential structure was not sufficiently commercial to be considered a “building” within the meaning of the Building Code’s strict liability provision. But Judge David D. Kerman disagreed:
“[T]he structure in this case may well be at the outer margin of the class of structures that fall within the ambit of the term ‘building’ in the strict liability law,” wrote Kerman. “However, it is my opinion that the mixed residential-commercial four-unit non-owner-occupied structure in this case is ‘commercial’ and ‘public’ enough to fit within the term ‘building’ in section 51.”
The imposition of strict liability resulted in the landlord being hit with the full amount of the $242,000 judgment with no reduction for the tenant’s comparative negligence due to his intoxication. Ouch.
Commentary: Bad Decision
As I stated to Massachusetts Lawyers Weekly, this is a troubling ruling. The Building Code provision, passed in the late 1800’s, was clearly intended to cover structures with a distinctively commercial nature, i.e., “public hall, factory, workshop, manufacturing establishing or building.” The law was not intended to cover a predominantly residential apartment building with commercial/retail on the ground floor, in my opinion.
This ruling will now expand liability for residential developers who have built quite a number of mixed-use residential projects in the last few years. This decision can be read as providing strict liability for anyone injured due to any type of building code violation, however minor. Property managers and commercial insurers should be aware of this ruling, and ensure that there are no building code issues which could cause harm to tenants.
Given the concerning expansion of liability in this case, look for this ruling to get appealed. Judge Kerman is a well-respected judge, and this decision is a close call, but I think he went a bit too far outside the legislative intent behind the law.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With 25 years in practice, he was voted a "Super Lawyer," a "Top Lawyer" by Boston Magazine and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
Decision Could Have Wide Impact Upon Marijuana Use By Tenants
Richard D. Vetstein, Esq. is an experience Massachusetts landlord tenant and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at[email protected].
With an abysmal 20% compliance rate, the City of Boston Inspectional Services Department is giving Boston area landlords until August 31, 2013 to register their rental units under a new registration and inspection ordinance. Under the recently-approved ordinance, every private rental unit in Boston was supposed to have been registered by Aug. 1.
New Online System Enables Landlords To Screen Tenants for Prior Evictions/Problems
School is back and summer is over. September 1 and the start of the new rental cycle is right around the corner. It’s time to review my best practices to get trouble-free, paying tenants in your Massachusetts rental property.
