Framingham Landlords Must Obtain Inspection and Certification of Rental Units

1024px-Framingham_Memorial_-_Framingham,_MA_-DSC00228By Robert Nislick

Pursuant to the Framingham Health Department’s Rental Unit Certification Regulation, most landlords of residential properties in Framingham are required to apply for and obtain a certificate from the Board of Health before commencing any new tenancy or occupancy in a rental unit.

The regulation is, “intended to protect the public health and general welfare, and the health, safety and well-being of the occupants of rental housing.” (See Regulation, § A).

The landlord has to file an Application for a Dwelling Unit Certificate and pay a non-refundable $75.00 fee, at the Memorial Building, 150 Concord Street, Framingham. The Health Department will then inspect the “rental unit to assure compliance with Minimum Standards of Fitness for Human Habitation, as set forth in the State Sanitary Code, and Housing Standards and regulations, as adopted by the Framingham Board of Health.” (See Regulation, § D).

“The Director of Public Health . . . shall issue a Rental Unit Inspection Certificate for each unit found to be in compliance or, if a rental unit fails to meet the minimum standards . . . shall issue a Housing Inspection Report and an Order to Correct Deficiencies. Said order shall establish the date by which corrections must be completed and shall provide notice that proper permits must be obtained for any work done under the order.” (Regulation, § D).

If an Order to Correct Deficiencies has been issued, the owner may request a re-inspection, and pay a $25.00 re-inspection fee. (See Regulation, § D).

“Upon completion of the required corrections and verification that proper permits have been obtained, a Rental Unit Inspection Certificate shall be issued.” (Regulation, § D).

Landlords in Framingham would be well advised to go through the inspection and certification process before renting their units. The Health Department’s inspection criteria matches with the State Sanitary Code, with which every landlord is obligated to comply. One benefit to landlords is that if the inspector comes out and certifies that the premises are fine, the landlord will have a benchmark in the event that a tenant complains later about bad conditions.

The MetroWest Daily News wrote a good article titled, “New Rules Set for Framingham Landlords”, when this important program was first announced in 2014.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices regularly in the Framingham District Court, and also in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and Western Housing Court.

Love Your Neighbor, Et Cetera – A Holiday Wish

By Robert Nislick

“You shall love your neighbor as yourself.” Leviticus 19:18.

In the world of real estate litigation, however, not everyone abides by this commandment.

During this holiday season, as we celebrate miracles and pray for peace, I offer the following wish:

Love your neighbor, landlord, tenant, easement holder, servient estate owner, licensee, trespasser, adverse possessor, condominium trustee, homeowner’s association, planning board, zoning enforcement officer, health inspector, building department, conservation commission, architectural commission, assessor, public works department, home improvement contractor, real estate developer, surveyor, harbormaster, state agency, title examiner, insurance company, tree warden, fence viewer, judge, clerk’s office, court officer, and all persons engaged in trade or commerce.

And if your heart will allow, then love your lawyer too!

About the author: Robert Nislick is a Massachusetts real estate lawyer.  He can be reached at (508) 405-1238, or by e-mail.

Condominium Trustees and Property Managers, and Their Maintenance and Repair Obligations Under Massachusetts Law and the State Sanitary Code

By Robert Nislick

It is widely known that management and control of the common areas of a condominium is vested in the organization of unit owners, which acts by and through its trustees. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 578 (1995). The term “organization of unit owners” refers to the “corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium. See Berish v. Bornstein, 437 Mass. 252, 254 n.5 (2002); G. L. c. 183A, § 1.

Condominium trustees do their job well when they are actively attuned to ongoing maintenance and repair needs in the common areas. Additionally, trustees should anticipate future common area maintenance and replacement needs. It is apparent that under the Condominium Act, and under a condominium’s governing documents, the board of trustees is responsible for maintaining and repairing the common areas.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (a) The method of providing for the necessary work of maintenance, repair and replacement of the common areas and facilities . . . .” G. L. c. 183A, § 11 (a). “The necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws. G. L. c. 183A, § 5 (e). “The organization of unit owners shall designate a person or entity who shall oversee the maintenance and repair of the common areas of the condominium.” G. L. c. 183A, § 10 (k).

Most of the time, condominium boards and the property managers they retain do a great job in caring for the condominium. Unfortunately, however, this is not always the case. Whether through shortsightedness, limited resources, hiring bad contractors, or a lack of responsiveness, defects that may occur in common areas sometimes go unaddressed or are inadequately taken care of for too long.

A board’s inattentiveness can cause even greater problems. For example, in one case, leaks developed in a common roof just above a unit owner’s ceiling. The leak led to ceiling cracks and loosening plaster in the plaintiff’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. The threshold of the door leading from the unit owner’s unit to her deck began rotting and mushrooms started growing. The board and its contractors failed to complete a repair of the problem. Later, hazardous mold in unsafe levels was found in the unit, caused by water infiltration and chronic dampness. The unit owner’s doctor ordered her to vacate due to the presence of mold. The unit owner continued to request repairs of the leaks and chronic dampness, as well as a full remediation of the mold, but no further action had been taken.

After dealing with these problems for around five years, the owner eventually filed suit. Although the Superior Court ruled that the statute of limitations had run, the Appeals Court found that the plaintiff stated claims against the condominium trust for negligence, nuisance, and trespass, and remanded the case to the Superior Court for further proceedings.

No unit owner should have to deal with these problems for such an extended period of time. Unfortunately, if a board refuses to take care of a problem, and it gets to the point where the owner files suit, several more years of expensive and uncertain litigation for both sides may pass, and the unit owner may still see no relief.

If this had been a tenant versus landlord situation, as opposed to a condominium unit owner versus condominium trustees situation, common knowledge suggests that the tenant would have contacted the local board of health to complain that they were living in uninhabitable premises in violation of the State Sanitary Code.

A local board of health, such as Boston Inspectional Services Department, could inspect the common areas of the building and the dwelling unit itself, and issue a correction order to the owner. See 105 Code Mass. Regs. 410.830. The board of health can order that certain problems, depending on their severity, be substantially corrected within 24 hours or up to a period not exceeding 30 days. See 105 Code Mass. Regs. 410.830. One purpose of the State Sanitary Code is to “facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention.” See 105 Code Mass. Regs. 400.001.

Moreover, “nothing prevents the courts from using the possibility of criminal sanctions as a means to seek compliance with the Sanitary Code.” Inspectional Services Department v. Hernandez, Boston Housing Court No. 04-CR-00724 (Nasif, J.) (Nov. 1, 2005).

Can a condominium unit owner avail him or herself of the same remedies to enforce the State Sanitary Code that are widely available to a tenant who resides in premises which do not conform with standards of fitness for human habitation? While this may come as a surprise, the answer is yes.

“The remedies set forth herein shall be available to condominium unit owners and tenants in condominium units. Whenever used in this section, the term ‘petitioner’ shall include a condominium unit owner or tenant, the term ‘owner’ shall include a condominium association, . . . and the term “rents” shall include condominium fees.” G. L. c. 111, § 127I, eighth par.

Under the State Sanitary Code: “Dwelling unit shall also mean a condominium unit.” 105 Code Mass. Regs. 410.020.Owner means every person who alone or severally with others: . . . (2) has care, charge or control of any dwelling, dwelling unit, . . . or parcel of land, vacant or otherwise . . . ; or (5) is an officer or trustee of the association of unit owners of a condominium. Each such person is bound to comply with the provisions of these minimum standards as if he were the owner.” 105 Code Mass. Regs. 410.020. “(D) Common Areas. In any dwelling, the owner shall be responsible for maintaining in a clean and sanitary condition free of garbage, rubbish, other filth or causes of sickness that part of the dwelling which is used in common by the occupants and which is not occupied or controlled by one occupant exclusively.” 105 Code Mass. Regs. 410.602.

Additionally, condominium property managers should also recognize their responsibility for complying with the State Sanitary Code. In one case, the Housing Court found that a property manager for a condominium which had substantial violations affecting the common areas was personally responsible for Code compliance. The Court stated:

“[T]he contemporary statutory and regulatory scheme leaves it crystal clear that property managers . . . are responsible for Code compliance in their own right, regardless of [an] agency analysis. This principle is so well understood in housing law that in thousands upon thousands of cases handled by the undersigned judge over twenty years, I have never had it argued to me that a property manager does not bear this responsibility because he is the agent for the owner (or in this case, the Trust) rather than the owner himself.” Concerned Citizens for Springfield, Inc. v. Orgel, Western Housing Court No. 06-CV-0318, slip op. at 4 (Abrashkin, J.) (Dec. 6, 2007).

Accordingly, and consistent with the purpose of the State Sanitary Code, condominium trustees and property managers should fulfill their role with a view towards protecting the health, safety and well-being of the occupants of housing.

About the author: Robert Nislick is a Massachusetts real estate attorney who represents condominium associations and unit owners. Contact him today for more information.

Condominium Unit Owners Cannot Alter Common Areas Without Consent

By Robert Nislick

You own a unit in a Massachusetts condominium and serve on your association’s board of trustees. Your board takes seriously its responsibilities to maintain, repair, and protect the condominium property. One day, the board of trustees learns that a unit owner has altered, or will imminently alter, the common areas and facilities of the condominium.

The unit owner has decided to renovate his unit. In so doing, he makes changes to the common areas and facilities. Perhaps he wants a larger living room window. In order to install the new window, he cuts a hole in the building envelope. Perhaps your condominium building is a converted loft. It occurs to the unit owner that maybe he could have higher ceilings. He decides to remove the finished ceiling and joists in order to expose the space above. Perhaps he wants to make renovations within his unit. He applies to Boston Inspectional Services Department Building and Structures Division for a permit. In order to receive the permit, he needs to add fire sprinkler heads and tap into the building’s fire alarm system. Perhaps your condominium consists of townhouses. The unit owner decides that he needs more storage and erects a shed on the condominium grounds.

These are just a few examples of how condominium common elements can be altered or encroached upon by a unit owner. The unit owner’s motivation may be innocent, nefarious, or somewhere in between. His bottom line is that he feels that he can do whatever he wants with his property. He never asked for and never received approval from the condominium trust before taking these actions.

It is well established under Massachusetts law that management and control of the common areas is vested in the organization of unit owners, i.e. the condominium trustees. When a person purchases a condominium unit, although he owns the fee interest in his individual unit, he does not get the right to change, take away from, or encroach upon the common elements.

Under certain circumstances, the trustees may choose to grant a unit owner the right to alter or use common areas, and if that is the case, the trustees may grant an easement, or designate an exclusive-use limited common area. If that is the case, then both the board and the unit owner should make sure to carefully follow the requirements of G. L. c. 183A and the governing documents for the condominium when formalizing such an arrangement. Both the board and the unit owner would be well advised to seek their own counsel to negotiate and draft such any instruments that might be needed.

What should the condominium trustees do when they believe that a unit owner has altered, or may imminently alter, the common areas and facilities without board approval?

It is important for the board to inspect the unit as soon as possible. The master deed should provide the trustees with the right to inspect the unit on reasonable notice. The trustees and the condominium’s property manager will want to take photographs. If the unit owner refuses access, the board may view such a refusal as a failure by the owner to abide by the condominium documents. It may be appropriate to levy a fine against the unit owner until he provides access. If the trustees still cannot access the unit, then the board should probably file a complaint in Superior Court and seek a preliminary injunction which orders the unit owner to provide access to the trustees.

If the trustees discover that the unit owner has altered the common areas, then the trustees should take action to compel the unit owner to restore the premises to their original condition. The trustees are likely justified in taking a firm stance against the unit owner. The board cannot tolerate action by the unit owner which may jeopardize the soundness or safety of the condominium building and its residents. If a unit owner’s construction project places public safety at risk, then the board really has no choice but to act to abate this problem immediately.

Attorney Robert Nislick is a Massachusetts condominium attorney who represents condominium trustees and unit owners. Contact him today for more information.