Attorney and Counselor at Law
What would you do if somebody accused you of discrimination? That’s a question landlords need to think about.
On Thursday, April 11, 2024, I will be presenting at a MassLandlords meeting on the subject of how to defend yourself at the Massachusetts Commission Against Discrimination (MCAD).
The venue: Twin Hills Country Club, 700 Wolf Swamp Rd, Longmeadow, MA 01106.
For tickets, click here.
January 29, 2024:- If you are a Massachusetts landlord, remember that under the State Sanitary Code you have to make tenants aware of a State government document called the Notice of Occupants’ Legal Rights and Responsibilities.
The notice informs tenants that if they think that the conditions in the property are unsafe or unsanitary and may violate the State Sanitary Code they should inform the landlord and, if that does not work, call the local board of health.
Landlords need to either provide tenants with the notice or post a copy of it “on durable material not less than 20 square inches in size and placed at the residence adjacent to the mailboxes or within the interior of the residence in a location visible to the occupants.” Some landlords choose to include a copy of the notice with the other documents that new tenants receive at the beginning of the tenancy, e.g. the receipt for first month’s rent and last month’s rent and the Lead Law Notification.
This is something that landlords need to do in order to comply with the Code. But bear in mind, the notice not only informs people about the law; it also promotes organizations that campaign for measures that hurt landlords, such as rent control.
The Notice of Occupants’ Rights has a link to masslrf.org, the site of a State program called the Massachusetts Legal Resource Finder. Here is the relevant paragraph:
According to the notice, the reason for the link to the Massachusetts Legal Resource Finder is so that tenants can “find available options for free legal advice.” Innocuous enough, perhaps.
But among the organizations to which Massachusetts Legal Resource Finder directs tenants is City Life/Vida Urbana. This particular organization is not exactly a source of “legal advice,” although its blurb on the Legal Resource Finder’s site says that it gives “legal information.”
Clicking the More Info button takes you here:
Clicking on the clvu.org link takes you to the City Life/Vida Urbana website, which includes this:
And this:
City Life/Vida Urbana is not a law firm, nor does it pretend to be. What this tax-exempt group does is engage in political organizing and lobbying, some of it geared toward rent control. Its avowed mission?
“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”
As for the vision, City Life/Vida Urbana “embraces” a vision that includes:
“a guarantee that each person has the right to food, housing, health care, education, meaningful employment, and the right to exist in freedom without fear of displacement or deportation.”
There is certainly nothing wrong with political organizing and lobbying (self-government depends on it), and people are perfectly free to “build collective power to effect systemic change and transform society” if that’s how they like to spend their time. And you can embrace any vision you want, so far as I’m concerned, if the vision is amenable to being embraced. But all this is not at all the same thing as free legal advice, which is the legal resource that the Massachusetts Legal Resource Finder is supposed to help tenants find. If the term “legal resource” encompasses City Life/Vida Urbana, what does it not encompass, I wonder.
To summarize: State law requires that landlords distribute a document that directs tenants to the Massachusetts Legal Resource Finder, an organization that promotes City Life/Vida Urbana, an advocacy group that campaigns for rent control. Failure to comply is a violation of the State Sanitary Code.
Landlords have a legal duty to provide tenants with a State-published document titled Notice of Occupants’ Rights and Responsibilities. This notice, albeit indirectly, helps advocate for rent control, a policy that runs directly counter to the interests of landlords. In this way, individuals who oppose rent control have to subsidize and amplify political speech that endorses it.
If you would like to help persuade State government to revise the notice, let me know.
August 17, 2023:- The Massachusetts Legislature has restored and made permanent a law that puts nonpayment eviction cases on hold if the tenant applies for rental assistance, e.g. RAFT. It adds a new section 15 to chapter 239 of the General Laws. To read the new law, click here.
How does the law work? When tenants stop paying rent, the landlord sends a notice to quit for nonpayment of rent together with a State government form called the Form to Accompany Residential Notice to Quit. This form informs the tenants (in all capitals) that the notice to quit is not an eviction and they do not need to leave.
Some people, when they receive a government document that declares
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT
conclude that the notice to quit is not an eviction, and they do not need to immediately leave.
If the tenants do not leave and do not pay the arrears, the landlord starts a summary process (eviction) case by having the sheriff serve a legal document called the summary process summons and complaint. A few weeks after the landlord files the case, the Housing Court will schedule an opportunity to mediate. This is called the First-Tier Event.
The court gives the landlord a notice of the First-Tier Event, which the landlord must pay the sheriff to serve on the tenants. The notice contains information about how to file an answer to the summary process complaint, including links to an online service that Greater Boston Legal Services created (with help from City Life/Vida Urbana and the court) that guides tenants through the process of preparing an answer, replete with defenses and counterclaims.
At the First-Tier Event, if one party does not want to mediate or if mediation happens but does not produce an agreement, the court schedules a trial. By the time of the mediation, the tenants are supposed to have filed an answer to the complaint.
On the day of trial, the tenants can put the brakes on the case by submitting an application for rental assistance. Unless and until the rental-assistance administrator approves or denies the application, the judge cannot enter judgment or issue execution. The case goes into suspended animation.
But as the people who passed this law know perfectly well, a large proportion of rental applications result in neither an approval nor a denial; they simply time out.
Administrators deem applications timed-out for a variety of reasons, e.g. the tenants did not submit a copy of the lease, or they did submit a copy but it got lost in the system, or the landlord did not submit a copy of the ledger showing the amount of the arrears, or the landlord did submit the ledger but by the time the administrator got round to processing the application the ledger was out of date. There is nothing rare about time-outs.
So how does section 15 provide for the time-out scenario? It doesn’t. This means that landlord lawyers will bring motions arguing that a timed-out application means that the case can go forward. The tenants’ lawyers will oppose those motions arguing that the word “denied” means denied, not timed-out. Judges will have to decide whether the time-out is the functional equivalent of a denial (so that the case can proceed) or not (meaning the case remains on ice). A patchwork of decisions emerges across the different divisions of the Housing Court — sometimes even between the judges within one division — and uncertainty and unpredictability ensue until an appellate-level court resolves the matter.
Section 15 is a law that the Legislature originally enacted to help prevent people losing their homes as a result of the governmental response to COVID-19. It was a policy response to three earlier policies (measures with perfectly foreseeable consequences) namely (1) Governor Charlie Baker’s decision to close “non-essential” businesses in 2020 thereby causing mass unemployment; (2) the partial eviction moratoria that President Trump and the Massachusetts Legislature imposed at the federal and State level, which prevented landlords from going to court to seek rent; and (3) the decision by Congress to print/borrow money at a hitherto unimaginable scale thereby reducing the value of the dollar.
Together these three policy choices ensured that the cost of rental housing would rise and that people whom policymakers had impoverished would be unable to afford their housing. Putting eviction cases on hold while tenants apply for rental assistance, which they could have applied for before the landlord started eviction proceedings, adds to the average cost of a nonpayment eviction case. Bear in mind, while the eviction case is on ice, the landlords’ costs continue to accrue; landlords still have to maintain the premises up to Code, pay their employees, and meet their other obligations. Landlords have to keep the premises up to Code and pay their other bills and taxes. They also need to pay their lawyers, and longer cases mean higher legal fees.
How do landlords manage cost increases of this kind? Like other businesses that provide a service, when costs go up they increase the price of the service. They raise the rent.
The previous incarnation of section 15 expired earlier this year. By then, in combination with the other measures that policymakers inflicted on us in 2020-23, it had worked its magic. Housing had become less affordable and many smaller landlords had left the rental-housing business by either taking their properties off the market or selling to larger entities with more capital and better political connections.
Now, having devoted much effort to driving smaller landlords out of business and pushing up the price of rental housing, Beacon Hill leaders want you to help solve the problem by becoming an amateur landlord. Yes, seriously.
Earlier this month, Governor Maura Healey declared a state of emergency to address the sudden influx of people who are arriving in Massachusetts in search of, inter alia, free housing. The shelters are full, and apparently there is a dearth of affordable housing in Massachusetts.
According to several media reports, including Boston 25, Lt. Governor Kim Driscoll said, “if you have an extra room or suite in your home, please consider hosting a family.”
When you invite someone else to come live in your home, and you obtain something of value in return (e.g. they help out around the house) you become a landlord. After they move in and you, for whatever reason, come to regret your decision and politely request that your tenants find somewhere else to live but they decline to do so, you will need to go to court.
This is the situation that the Governor and Lieutenant Governor, with their shameless appeal to altruism, are asking you to put yourself in.
On the bright side, right now at least they’re just asking. As I write this, they have still not passed a Quartering Act, which means that your State government is not yet requiring you to open up your door and play host to strangers. But remember, by declaring a state of emergency Governor Healey arrogated to herself the same powers that her predecessor deployed with such care and foresight from March 2020 onward (forgive my sarcasm). So stay tuned.
Photo by Zulian Firmansyah on Unsplash
April 28, 2023:- As part of the applicant screening process, landlords are able to look at masscourts.org, a site that enables the public to search for civil lawsuits. There they can find out whether rental applicants have been involved in any court proceedings, including summary process (eviction) cases and cases where tenants have sued their landlords.
If an applicant has been the defendant in several eviction cases for nonpayment of rent, the landlord may worry that the person may not be a reliable tenant. May the landlord safely reject the applicant for that reason alone?
I would counsel caution. Although I have not seen any Housing Court rulings on this topic, let alone any appellate-level decisions, I think that rejecting an applicant on the basis of having been the defendant in a summary-process case could be unlawful. Why? Because it might constitute reprisal.
Reprisals against tenants are unlawful. The relevant Massachusetts statute, G.L. c. 186, § 18, prohibits “any person or agent thereof” from taking reprisals against tenants because of the tenants reporting or complaining about suspected violations or because of the tenants trying to enforce any law, regulation, or bylaw that regulates residential premises. For example, if the conditions in a dwelling fall below what the State Sanitary Code requires and the tenants complain to the board of health, any act of reprisal against the tenants will give the tenants the right to sue for damages.
The rationale is clear. If landlords can evict tenants who complain about sub-standard conditions, tenants will be more likely to put up with bad conditions out of fear of losing the house or apartment. This would cause quality of rental housing to deteriorate. The law’s goal is to protect tenants who complain and thereby encourage landlords to respond to complaints by repairing the bad conditions so that the quality of rental housing to improve.
This law usually comes up when a landlord has taken tenants to court for nonpayment of rent.
If a landlord starts a nonpayment case, the tenants will have a defense if they can show that the reason they were not paying rent was the bad conditions in the dwelling. This defense does not appear in c. 186, § 18, by the way, but in a different statute, namely G.L. c. 239, § 2A. Again, the rationale for this law is obvious: It encourages landlords to respond promptly to conditions complaints so that the tenants will resume paying rent. In the context of a nonpayment eviction, therefore, the law against reprisal operates as a shield.
But reprisal can also serve as a sword, enabling the tenants to go on offense and sue, even if nobody is trying to evict them.
Is it only the tenants’ current landlord who is vulnerable to a lawsuit for reprisal?
No, at least not if my reading of the statute is correct. By prohibiting “any person” from taking reprisals, section 18 encompasses not only the landlord who tries to evict the tenants but also anyone else who retaliates against the tenants, including (arguably) a person who decides not to rent to them because of their exercising those legally-protected rights vis-à-vis their previous landlord.
Let’s say I’m a landlord with a vacant unit and a couple responds to my advertisement by submitting an application. They have great credit and the ability to pay the rent. Before I invite them to a viewing, I check out masscourts.org and learn that one of their previous landlords filed an eviction case against them for nonpayment of rent. So I decline to take their application any further and wish them well with their housing search.
But if the applicants had been withholding rent because of bad conditions (as the law permits them to do) and their landlord — instead of bringing the place up to Code — tried to evict them anyway, I will be depriving this couple of housing solely because they exercised a legally-protected right. In rejecting their application, I am retaliating against them just as surely as their landlord did. If the couple figure out my reason for rejecting their application, could they sue me for reprisal?
I am not a landlord and this is a hypothetical situation. But it is not one that I would like any of my landlord clients to confront in real life.
Landlords can use information about previous civil cases without engaging in reprisals. Think about the Criminal Offender Registration (CORI) database, for example.
Some landlords ask applicants to authorize them to run CORI checks as the last step in the application process. The regulations that govern CORI checks (803 CMR 500) allow landlords to do that, so long as they abide by some basic, sensible rules. If the CORI check produces a result, the landlord has to let the applicant know and provide an opportunity to dispute it. A landlord is not allowed to assume that the CORI result is accurate and reject the application for that reason.
This seems like a practical model for how landlords should to treat civil cases. If a landlord learns that the applicants were defendants in a nonpayment case, the landlord could review the court filings. What did the applicants file in response to the previous landlord’s complaint for nonpayment? If the tenants did not file an answer with counterclaims, it might seem reasonable to believe, for the time being, that the tenants had not been withholding rent because of bad conditions. Think of that as a working assumption, and nothing more.
The landlord should still ask the applicants for their side of the story. Perhaps the case settled even before the applicants needed to file an answer, because the Housing Court Specialist examined the Health Inspector’s report (yes, the applicants had called the board of health, which you would not necessarily know just by looking at the list of court filings) and explained how the judge would probably rule. At that point, the plaintiff landlord agreed to waive the arrears and dismiss the nonpayment case, and the tenants agreed to move out and move on.
On the other hand, perhaps the applicants were elective nonpayers, the polite term for tenants who choose not to pay rent and opt instead to game the system by forcing the landlord to file an eviction case, drag out the proceedings as long as they can, then — with the landlord having reached the end of a very long tether — agree to leave so long as the landlord pays them off. Such cases are real, and not as rare as one would wish.
But it would be a mistake to presume that all summary-process defendants are elective nonpayers until proven otherwise. Merely seeing that applicants have been defendants in a summary-process case tells you nothing about why. A presumption of guilt is not only unfair, but also legally hazardous as a potential act of reprisal, in my opinion.
Landlords are free to use masscourts.org as one tool in the applicant-screening toolkit but should bear in mind the risk of being sued for unlawful reprisal. If applicants show up in the court records, landlords should not treat the fact as conclusive evidence that the applicants would be bad tenants and automatically reject the application. Instead, landlords should find out more about the case, both from the court filings and from the applicants.
April 27, 2023:- Landlords in Massachusetts have been preparing to adapt to the new State Sanitary Code, which was supposed to go into effect this month. But today the Department of Public Health announced that the promulgation of the amendments to the Housing Code, 105 CMR 410.000, Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter II), has been delayed. The email did not give a reason.
For the time being, therefore, the old Sanitary Code remains in effect.
Photo by Levi Meir Clancy on Unsplash
Today (April 28, 2023) the Department stated that it expects to publish the new code on May 12, 2023, which will be the day it goes into effect.
April 21, 2023:- Massachusetts now requires landlords who are serving notices to quit for nonpayment of rent to also serve a document called the Form to Accompany Residential Notice to Quit.
Like the old Attestation Form, which landlords no longer have to serve, the new form states in all caps:
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT.
YOU ARE ENTITLED TO A LEGAL PROCEEDING IN WHICH YOU CAN DEFEND AGAINST THE EVICTION.
ONLY A COURT ORDER CAN FORCE YOU TO LEAVE YOUR UNIT.
That’s the important part, I think, from the Legislature’s point of view, and, to be fair, it is an accurate statement of the law. Of course, it would also be an accurate statement of the law to say “landlords are entitled to receive rent,” but the form does not include anything to that effect.
The new form differs somewhat from the Attestation Form, which required the landlord to tell the tenants whether the property was a “covered dwelling” under the federal CARES Act. The new version does not have a checkbox for that, although it does include the following paragraph that advises the tenants:
If you live in a building with five or more units, or if you receive a HUD tenant-based voucher, you may have more federal protections. If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then your Landlord may be required to give you written notice at least 30 days before filing an eviction claim.
The document titled “Instructions for Landlords” offers landlords who are completing the form the following helpful advice:
If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then you may be required to give your tenant written notice at least 30 days before filing an eviction claim. You should use diligent efforts to determine whether your housing unit is a “covered dwelling” under the CARES Act, and whether the notice to quit complies with the CARES Act notice requirements.
Using diligent efforts to find out whether it is necessary to give 30 days’ notice as opposed to 14 days’ notice is a very good idea, because failing to give sufficient notice could result in the judge dismissing the summary process case and the landlord having to start all over again with a new notice to quit. This could happen some months after the landlord served the notice to quit, during which time the tenants will probably not have been paying rent.
Instead of a checkbox requiring the landlord to tell the tenants whether they are entitled to a 30-day notice to quit, the new form has a checkbox by which the landlord tells the tenants whether they (the landlord and the tenants) have entered into any agreements about paying the overdue rent. In my experience, people who enter into agreements tend to know about it, but the drafters of this form may have had completely different experiences. In their experience, perhaps, people enter into agreements by accident all the time and never even notice.
The State seems to base this requirement — that the landlord inform the tenants whether they have entered into any agreements with the landlord — on the assumption that the tenants would not already know whether they had entered into any agreements with the landlord. Why the State would assume such a degree of ignorance on the part of people who are tenants is beyond me. As I said, perhaps the life experience of the State employees who drafted the form is completely different from my own. On the other hand, they may just be condescending.
Anyway, that is what the new checkbox is for, so that landlords can tell tenants something they already know. Gone is the old checkbox that required landlords to tell tenants something that they might not already know, i.e. whether the property is a “covered dwelling” within the meaning of the federal CARES Act.
Requiring landlords to check a box stating whether the building was a “covered dwelling” tended to encourage landlords to find out ahead of time, or to err on the side of caution and give 30 days’ notice even if the tenants were only legally entitled to 14 days’ notice.
Dispensing with the “covered dwelling” checkbox removes that incentive and thereby increases the likelihood that some landlords who should give 30 days’ notice will give only 14 days’ notice. Those landlords are more likely to have their eviction cases dismissed.
Readers disposed towards suspiciousness may sense a familiar tingle.
In addition to the new form, there is one more document worth noting. After the notice to quit has expired and the tenants have still not paid the arrears, the landlord will need to commence summary process (eviction) proceedings. When filing the case, the landlord has to include an affidavit confirming that the landlord did indeed serve the Form to Accompany Residential Notices to Quit.
Landlords serving notices to quit for nonpayment of rent need to remember to: (1) determine whether the property is a “covered dwelling” and how much notice is necessary; (2) complete the form; and (3) include the completed form with the notice to quit. When filing the case in court, landlords need to file the affidavit along with the summons and complaint and the notice to quit.
April 2, 2023:- This month the revised version of the State Sanitary Code goes into effect. One of the changes that landlords should note is the duty to provide alternative housing for tenants if the local board of health has condemned a unit as unfit for human habitation.
The owner needs to provide “comparable, suitable housing” for the shortest of the following time periods:
Housing Court judges already have the authority to tell landlords to provide alternative housing (e.g. a motel) when the board of health has condemned a unit. Now that it is a Code requirement, the board itself will be able to issue these orders.
With tenancies at will, i.e. month-to-month, the remaining rental period could be a couple of weeks, depending on when the board condemns the property. But landlords should bear in mind that a judge could still order them to pay to house the tenants for longer, even after the board’s alternative-housing order has expired.
Would that be lawful? Does landlord-tenant law allow judges to order the owners of condemned dwellings to pay to put up tenants in a motel for longer than the remaining weeks of their month-to-month tenancy? Taking that question to the Appeals Court in order to find out would probably cost more than the alternative housing. More cost-effective by far to keep the unit up to Code and avoid the condemnation.
Photo by benjamin lehman on Unsplash
February 24, 2023:- Mayor Michelle Wu’s proposal to control the price of rental housing in Boston will not, in real life, control the price of rental housing in Boston. Why? Because, as Catherine Ruth Pakaluk explains in this article, politicians can control only something’s money price, not its real price.
Altering the number on a product’s price tag, without changing either supply or demand, does not make the product cost any less. The price of something is a signal of its value, not the value itself. Pakaluk likens price controls to trying to change reality by simply printing falsehoods about it; if you don’t like what you read in the news, just change the words on the page (a common phenomenon, you may have noticed).
Life would certainly be easier if you could alter what really happened just by hitting the Delete button and rewriting the story. But facts are not that flexible. Nor are the true values of products and services in a market consisting of millions of people making millions of decisions about millions of items.
That is one of the basic reasons that rent control will not work in Boston, just as it has not worked anywhere else.
Photo by Ujesh Krishnan on Unsplash
On Saturday, October 22, 2022, in Springfield, Massachusetts, I will be teaching part of the MassLandlords Crash Course.
This fast-paced course is strictly limited to 16 participants to allow for detailed discussion and Q&A. Course tuition includes:
You will receive a box packed with your personalized signed certificate, your choice of two books, course notes, pen, and half a dozen other pieces of literature.
To register click here.
The Crash Course is a program of MassLandlords, Inc., the statewide membership organization of housing providers that I am proud to serve as Legislative Affairs Counsel.
September 21, 2022:- Another volume of the Western Division Housing Court Law Reporter is available online.
The reporter is an unofficial compilation of decisions and orders issued by the Western Division Housing Court. It is a collaborative effort by and among several individuals representative of the Court, the local landlord bar, the local tenant bar, and government practice.
For Volume 16, just click here.
May 31, 2022:- The latest volume (number 14) of the Western Division Housing Court Reports is available online. It is the unofficial compilation of decisions and orders issued by the Western Division Housing Court, published for the benefit of lawyers, landlords, tenants, and the public at large.
To peruse the reports, click here.
Would you like to know about alternatives to eviction and ways to settle disputes before they end up in Housing Court?
At 6:00pm, Wednesday, June 1, 2022, I will be giving a Zoom presentation to MassLandlords members — and potential members — on the subject of relocation assistance agreements (cash-for-keys in the vernacular).
If the prospect of Housing Court litigation has you reaching for the TUMS®, a cash-for-keys agreement offers a healthy alternative, but it is not to everybody’s taste. I will discuss some of the essential ingredients, and why this item on the menu proves appetizing to some but unpalatable to others.
The event is free and open to the public.
For the event link click here.
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.
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 a few exceptions, e.g. hospitals and federal military bases.
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 the apartment is on a federal military base. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is not on a federal military base a lease provision cannot make it so, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
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.
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.”
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.
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.”
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.
April 12, 2022:- Rent control has a new moniker: It now identifies as “rent stabilization.” You know when a policy is unpopular when its advocates give it a new name. Even today, when face-masking, mind-closing, and line-toeing are all the rage among the bien pensant, a policy with the word “control” right there in the title just doesn’t sit well, I guess.
But the reason for the policy’s unpopularity is not the name but the aim. And what is the aim of rent stabilization (née rent control)? An article in Jacobin explains. It has the headline “New York Needs Universal Rent Control Now,” and a sub-headline that tells you why: “Rent control can build tenant power and undermine the logic of speculative neighborhood investments.”
The phrase “undermine the logic of speculative neighborhood investments” is a reasonably to-the-point way of expressing the idea “abolish private property.” You can count on a forthright explanation from a magazine named after the movement that was responsible for the Reign of Terror during the French Revolution.
Lest readers doubt that the editor responsible for writing the headlines and sub-headlines at Jacobin got it wrong, here is a quote from the article itself:
By discouraging speculation and lowering the value of investment properties, it lays the groundwork for an expansion of alternative housing models, like social housing and community land trusts.
Discouraging speculation? That speaks for itself, as does “lowering the value of investment properties.” Similarly, the expansion of social housing (in plain English, government housing) and community land trusts (in plain English, government housing) means the contraction of something else, i.e. privately owned housing.
Why is this expressly Statist, anti-market policy of rent stabilization (née rent control) back on the political agenda in Massachusetts and elsewhere? In short, because the politics of the people who write for Jacobin are the politics of the people who are setting the agenda for the Democratic Party in Massachusetts, namely the supporters of Democratic Socialists of America (DSA).
DSA stalwart State Representative Mike Connolly of Cambridge has a bill, H. 1378, that includes an option for towns and cities to enact rent control. The Joint Committee on Housing is scheduled to vote on it next month.
Myself, I believe that affordable good-quality housing is more likely to emerge through markets than through policies such as rent control. That is a belief that some committed socialists share, and it is exactly why they want rent control. From the perspective of a dedicated revolutionary, if rent control reduces the amount of affordable housing, thereby exacerbating the situation, fomenting discontent, and stimulating revolutionary conditions, so much the better.
From the standpoint of the true socialist, in the long run no housing reforms are safe without a wholesale socialist transformation of society.
But reasonable people who wish to address the need for more affordable housing (and are not revolutionary socialists or even gradualist socialists) may find the arguments for and against rent control evenly poised. They may be on the fence about it.
There are plenty of reasons to oppose rent control (click here for a few) but here’s one that the fence-sitters might — just might — think about:
Rent control artificially reduces housing units’ value, forcing housing providers to offer their properties at below-market rates. This dramatically reduces developers’ incentive to construct new units, as the artificially deflated rental market offers a lower return on investment. In cities that implement rent control, new construction decreases dramatically, producing substantial declines in the availability of rental housing.
That’s a quote from an op-ed by Drew Hamrick, senior vice president of government affairs and general counsel for the Colorado Apartment Association, writing in Colorado Politics. The bill Mr. Hamrick opposes would impose rent control on Colorado’s mobile-home parks.
Yes, it’s not just Massachusetts. Even in Colorado — longtime home of Hunter S. Thompson, birthplace of Duane “Dog the Bounty Hunter” Chapman, and where it is illegal to lend your vacuum cleaner to your neighbor — questionable ideas sometimes find their way onto the agenda.
To be fair, the socialists have a response to people like Drew Hamrick. To the claim that rent control reduces the amount of new rental housing, they say “oh no it doesn’t.” For an article in Jacobin countering the pro-private property argument with data, click here. For arguments from the libertarian-leaning Cato Institute in favor of private ownership and against rent control, also with data, click here.
Please do me a favor and read the arguments for and against rent control.
As a former socialist whose mind changed after much experience, reading, and reflection, I am grateful for the liberty to read works that express ideas that differ from my own. Of course, that very liberty depends entirely on another liberty: the liberty to own and sell property. If one entity (the State) controls your ability to make the money with which you can buy food, shelter, and whatever else you need and desire, your ability to criticize that entity will be very constrained. Without that liberty to criticize through writing and speech, dissent sounds like this. And that, fundamentally, is why rent control is a bad policy.
September 7, 2021:- Massachusetts legislators are considering H. 1434, which would establish a moratorium on non-payment evictions. It would not ban all evictions, only a subset of evictions “where the plaintiff’s complaint is based upon or includes any claim for rent or use and occupancy.” The bill has an emergency preamble, and it’s supposedly related in some way to COVID-19.
Nothing can justify another ban on people regaining possession of their property from those who are occupying said property without paying rent. The article in this week’s Massachusetts Lawyers Weekly on that subject quotes me, accurately:
“In January, the pandemic was killing about 3,000 people a day, notes Amherst attorney Peter Vickery. But as vaccines have been distributed, the death rate has declined dramatically, down to about 150 people a day.
Vickery references the New Jersey law that prohibits motorists from pumping their own gasoline. There may be some very real concerns that led to the passage of that law, but there is an ‘extraordinary mismatch between the threat and the policy.'”
I mis-stated the current daily death toll, which is now around 400-500, up from about 200 per day in July but still a far cry from the January 2021 average of 3,000. Yesterday (September 6, 2021) in the United States there were 246 deaths from COVID-19, according to the CDC. For the CDC’s tracker of daily deaths from CIVID-19, click here.
But what does the New Jersey law against pumping your own gas have to do with eviction moratoria? For readers who are curious, please consider the findings that NJ legislators included in the statute so as to justify the self-pumping ban (NJSA 34:3A-4), which findings include:
“(d)… [R]isks of crime and fall-related personal injury, which are a special burden to drivers with physical infirmities, such as the handicapped and some senior citizens;(e) Exposure to toxic gasoline fumes represents a health hazard when customers dispense their own gasoline, particularly in the case of pregnant women;
(f) The significantly higher prices usually charged for full-service gasoline in States where self-service is permitted results in discrimination against low income individuals, who are under greater economic pressure to undergo the inconvenience and hazards of dispensing their own gasoline.”
These are all plausible risks. But do they really justify banning amateurs from filling our own gas tanks and leaving the job to trained pump attendants? No. In the rest of the United States, people manage to pump their own gas without triggering the Apocalypse. Similarly, nor does the potential for spreading COVID19 justify a ban on people regaining possession of their own property from those who are not paying rent.
As the Supreme Court of the United States held recently regarding the Biden administration’ unconstitutional non-payment eviction moratorium:
“The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021).
Massachusetts legislators should read this decision and, before criticizing it, think about the Court’s reasoning.
Our right to own property is one of the many rights that the State and federal Constitutions guarantee. It is not untrammeled, but it is is not something that legislators can violate on a whim. Here in Massachusetts, the Supreme Judicial Court has held:
“[S]ubstantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests.”
Sharris v. Commonwealth, 480 Mass. 586, 593, 106 N.E.3d 661, 668 (2018). Is the right to exclude non-paying tenants from your property a fundamental right? If it is, the court should apply strict scrutiny and require the Commonwealth to show that the law is narrowly tailored to further a compelling government interest.
Even if the court were to apply the weaker intermediate-scrutiny test, the non-payment eviction moratorium should fail. To pass this test, the Commonwealth would have to show a reasonable, proportional fit between the law and an important governmental interest. Here, what connection could there be between a ban on non-payment evictions and the governmental interest, i.e. slowing the spread of COVID19?
The reason that the CDC gave for its non-payment eviction moratorium — and that moratorium advocates continue to echo — was that “evicted renters must move.” They may move into “shared housing or other congregate settings” (of course, they may be moving from shared housing or other congregate settings, but no matter). And their relocation may even entail “crossing State borders.”
Surely, if people moving from one place to another is such a risk enhancer, the Legislature should put a stop to it altogether.
But does the Legislature wish to ban all of us, renters and homeowners alike, from moving house? No, it is not trying to prevent people who own their own homes from selling them and going to live somewhere else.
Does the Legislature wish to ban tenants from relocating of their own accord? No.
Does the Legislature wish to ban all evictions? No.
Does the Legislature wish to ban judges from evicting tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment? No.
For this bill to be a good fit, there would have to be some evidence that tenants who do not pay rent are more likely to contract and transmit COVID-19 than the tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment. And that is just silly.
Yes, deaths from COVID-19 are higher than they were in July, but nowhere near the high of January-February 2021. Most adults in the United States — and about 90% of those aged 70 and over — have been vaccinated against COVID-19, and those vaccinations work (click here for a recent article in the Atlantic magazine on that subject). Even if there had been a good reason for H. 1434 in early 2021 (and there was not) that reason has gone.
The only kinds of evictions that the Legislature wishes to ban with H. 1434 are evictions where the landlord is trying to get paid. That might make the bill’s proponents feel good, but it would not reduce the transmission of COVI-19.
August 27, 2021:- HUD Secretary Marcia L. Fudge issued a statement criticizing the Supreme Court of the United States for holding the CDC eviction moratorium unconstitutional. Here is the opening paragraph of the statement:
“I am deeply disappointed by the Supreme Court’s ruling on the CDC’s eviction moratorium. With this decision, the Court has put millions of Americans at risk of losing their homes—even as the Delta variant heightens their risk of exposure to COVID-19. Many of these Americans are among our most vulnerable—including senior citizens, people with chronic illnesses, young children, and families with the lowest incomes.”
The statement is inaccurate. As the Supreme Court’s decision points out, it is Congress, not the CDC, that has the power to enact an eviction moratorium. Congress has done so before, and it could do so again. If Congress had wanted to enact a new eviction moratorium, it could have. But it did not. That choice on the part of Congress did not magically empower another branch of the federal government to legislate in its place.
Many political actors have put people at risk of losing their homes, e.g. the governors who closed down businesses and the legislators who enabled them. The culprits do not include the justices of the Supreme Court.
August 6, 2021:- President Biden, like President Trump before him, has issued an eviction moratorium, via the CDC, without authorization from Congress. For an overview from Reason magazine, click here.
A security deposit slip up can spoil a seemingly straightforward summary process case. So MassLandlords is holding a virtual lunch-and-learn session for housing providers (12 noon on Tuesday, July 20, 2021) where I will provide an overview of this slippery subject and answer questions.
To register visit masslandlords.net/events
Banana photo by Milo Bunnik on Unsplash
On Wednesday, February 3 at 5:00 p.m. I will be offering a presentation for MassLandlords on the subject of bills for the next sessions of the Massachusetts Legislature.
One of the bills has to do with civil asset forfeiture, by the way. What does that have to do with housing law? Tune in and fine out!
To learn more and to register click here.
October 6, 2020:- The Housing Court has issued a new standing order (SO 6-2) that will govern pending and newly-filed summary process cases if the eviction moratorium expires on October 17 (and if the Legislature does not impose a new one).
I will provide a synopsis in a future post. In the meantime, housing providers should note that:
(1) for default judgments entered after March 1, the Housing Court is allowing all motions to remove the default;
(2) for already-filed cases summary process cases the Clerks will be sending out scheduling notices for conferences with Housing Specialists;
(3) for new summary process cases, the owner/attorney who completes the summons and complaint should not insert a trial date (write TBD instead); and
(4) because the CDC moratorium order is in effect, the Housing Court will provide an affidavit for housing providers to use in order to tell the Court whether the renters gave them the declaration that the CDC order requires.
Peter Vickery, Esq., 