Every rental agreement in Massachusetts — whether written or unwritten — contains an important clause. It will remain as part of the agreement even if both parties, landlord and tenant alike, want to waive it. No matter how hard you try, you cannot erase it.
What is this ineradicable clause? It is the warranty of habitability. It is the landlord’s guarantee that the landlord will, at a minimum, keep the premises in compliance with the State Sanitary Code, more particularly Chapter II of the Code titled Minimum* Standards of Fitness for Human Habitation.
So one easy way for landlords to breach the warranty of habitability, and land themselves in expensive trouble, is to ignore the State Sanitary Code. Ignoring the Code could result in the landlord having to pay the tenant damages (possibly multiple damages) plus the tenant’s legal fees.
On the other hand, by paying attention to the State Sanitary Code, and making sure that each and every rental unit complies with it, landlords are more likely to live up to the warranty of habitability, stay out of trouble, and maintain a healthy business relationship with their tenants.
State government has posted a synopsis of the responsibilities of landlords in Massachusetts. It is well worth a look. In the meantime, here are some — just some — of the requirements of the State Sanitary Code. The following five items are just a starting point, not an exhaustive list. Landlords and aspiring landlords should familiarize themselves with the Code in its entirety.
1. The Code applies to every dwelling
The State Sanitary Code states:
No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000
That is a clear rule. If you provide rental accommodation, you must comply with the State Sanitary Code. There are three exceptions to the rule for landlords to know about: (1) dwellings on campgrounds that comply with the applicable State regulations for campgrounds, and (2) dwellings used exclusively as civil defense shelters. Those two exceptions are very narrow. The other exception? If the dwelling is covered by another part of the Code.
What if the would-be tenant says, “Don’t worry about the warranty of habitability. I’m happy to sign a contract waiving it. Or we can say that I’m using the apartment exclusively as a civil defense shelter. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is an ordinary rental unit, it not exclusively a civil defense shelter. A lease provision cannot transform an ordinary apartment into a civil defense shelter, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
2. Minimum living space
The State Sanitary Code establishes the minimum amount of living space that each dwelling unit must consist of:
Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.
This does not include: rooms containing toilets, bathtubs or showers; laundries; pantries; foyers; communicating corridors; closets; and storage spaces. These parts of the unit do not count toward the square footage of floor space.
There is a separate square-footage requirement for rooms used for sleeping. For one occupant, the sleeping room has to contain at least 70 square feet. For more than one occupant, the sleeping room must have at least 50 square feet for each person, e.g. for two occupants, 100 square feet; for three occupants, 150 square feet.
A unit that is less than 150 square feet, excluding closets and storage spaces, is not a Code-compliant unit. An owner who rents such a unit to a tenant is breaching the warranty of habitability.
What if the unit is 145 square feet, just 5 feet under the minimum, and the would-be tenant says, “I don’t mind. Just knock $50 off the rent?”
No, the landlord is not able to contract out of the warranty of habitability.
3. Kitchen facilities
The unit must contain a kitchen sink and space to store, prepare, and serve food in a sanitary manner, and there must be a stove in good repair. Unless the written agreement puts the obligation on the tenant to provide a stove, the landlord must provide one. In addition, there must be space and connections for a refrigerator.
The kitchen must have at least one lighting fixture and at least two electrical outlets (for the kettle, coffee-maker, toaster, etc.) in “convenient locations.” In practice, this means that the tenants should not have to plug in the toaster down at the skirting board or up by the picture rail!
The Code also requires a kitchen window:
For each kitchen over 70 square feet, transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that kitchen.
What if the would-be tenant says, “I don’t mind not having a kitchen. Just knock $50 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
What if the landlord says to the would-be tenant, “There is no light fixture in the kitchen. I could install one if you pay for it.”
“Sure, I’ll pay for it,” says the would-be tenant.
No, the Code says that the owner must provide the fixture and outlets and it defines the word “provide” as “supply and pay for.”
4. Maintaining facilities
Everything that the owner installs, the owner must maintain. For example, the owner has the duty to maintain the toilets, sinks, wash basins, water pipes, sewer lines, and gas lines free from leaks, obstructions, and defects. If the owner installed the stove and refrigerator, the owner must keep them in good repair. When the tenant tells the owner that the faucet is leaking, the owner has to repair it.
Does the Code say what standard the owner must live up to? Yes, the owner must install and maintain facilities “in accordance with accepted plumbing, gasfitting and electrical wiring standards.”
So who should do the plumbing? A licensed plumber. The wiring? A licensed electrician.
But let’s say the kitchen sink has always leaked. It leaked when the landlord bought the place, and it has leaked ever since. During the showing, the landlord says to the would-be tenant,
“The kitchen sink leaks. It’s leaked from the get-go. Somehow I never get around to fixing it.”
“That’s OK,” says the would-be tenant, “I don’t mind a leaky sink. Just knock $10 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
5. Windows must be secure
The Code states that in every habitable room other than the kitchen there must be:
transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that room
It also says:
The owner shall provide, install and maintain locks so that… Every openable exterior window shall be capable of being secured.
A habitable room needs a window of sufficient size. If the window is capable of being opened it needs to have a mechanism to keep it from simply sliding or falling open or from being opened from the outside (by an intruder, for example). It needs a lock.
What if the latch on the living-room window fell off?
“I see that the living room window doesn’t have a lock or even a latch that works. Could you knock $50 off the rent?”
“Sorry,” says the owner, “I can’t buy my way out of the warranty of habitability. I’ll install a lock tomorrow. And I’ll send you the bill.”
No, the owner is not allowed to charge the tenant for the cost of making the exterior window secure. The owner’s duty is to provide the lock, and the word “provide” means “supply and pay for.”
Conclusion
Anyone who intends to become a landlord in Massachusetts should become familiar with the State Sanitary Code, and consistently comply with it. Failing to comply with the Code and breaching the warranty of habitability could be a very expensive mistake.
*This is the word to focus on. The State Sanitary Code establishes the minimum standards of fitness for human habitation. Think of it as a floor, not a ceiling.
Peter Vickery, Esq., 