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.

But If You Do – Things to Remember When Taking a Security Deposit in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. A new tenant is about to lease your house or apartment from you. You would like to take a security deposit from this person.

Allow me to talk you out of it. Read my companion article, “Don’t Do It – The Case Against Taking a Security Deposit in Massachusetts”.

Let’s say you still want to take a security deposit. The landlord should familiarize himself or herself with the statute, G. L. c. 186, § 15B, and the Attorney General’s Regulations, 940 Code Mass. Regs. § 3.17 (4).

If you read the statute and regulations and have a hard time understanding them, then you may be better off deciding not to take a security deposit. You should consider seeking the advice of counsel, in any event, especially if you are an inexperienced landlord. There are so many ways you can lose money when renting property. This article highlights certain things the landlord should or should not do, rather than emphasizing the penalties for noncompliance. A good lawyer can help you to understand the risks and take steps to reduce your exposure to them.

The amount of the security deposit cannot exceed the first month’s rent. See G. L. c. 186, § 15B (1) (b) (3).

The landlord must provide a receipt to the tenant at the time of receiving it. See G. L. c. 186, § 15B (2) (b). The receipt must indicate, “the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.” See id.

Additionally, the landlord must provide a statement of present condition to the tenant, upon receipt of the security deposit, or within ten days after commencement of the tenancy, whichever is later. See G. L. c. 186, § 15B (2) (c). The security deposit law specifies that the statement must contain a comprehensive listing of any damage then existing in the premises. The landlord or his agent must sign the statement. The statement of condition must also provide a certain notice to the tenant, that the tenant must either sign in agreement that the list is correct and complete, or attach a separate signed list of damage that the tenant believes exists in the premises. See id.

Additionally, the landlord must place the security deposit in a separate interest-bearing account in a bank located within Massachusetts. See G. L. c. 186, § 15B (3) (a). The account must place the deposit beyond the claims of the landlord’s creditors. See id. The account must also have the ability to be transferred to a subsequent owner of the property. See id.

The landlord must also give the tenant, within thirty days after receiving the deposit, a receipt that indicates, “the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit.” See id.

Additionally, the landlord must maintain a record of all security deposits received. See G. L. c. 186, § 15 (2) (d). The landlord must make the record available for inspection upon request of a tenant or prospective tenant. The record applies not just to the specific unit that the tenant is renting. The statute actually allows the tenant to inspect the record for each dwelling unit or premises for which the landlord has accepted a security deposit.

Let’s say that the landlord takes a security deposit from a tenant who has signed a multi-year lease. At the end of each year of a tenancy, the landlord shall pay to the tenant the interest that has been received from the bank where the security deposit has been held. See G. L. c. 186, § 15B (3) (b). Also, at the end of each year of tenancy, the landlord shall give the tenant a statement that indicates “the name and address of the bank in which the security deposit has been placed, the amount of the deposit, the account number, and the amount of interest payable by such lessor to the tenant.” See id. The landlord also shall notify the tenant that he or she may deduct the interest from the tenant’s next rental payment.

What happens when the tenancy ends? Within thirty days, the landlord must return the security deposit, or the balance thereof, to the tenant. The security deposit law specifies three types of deductions that the landlord may make. In a nutshell, deductions are permitted for unpaid rent or water charges; an unpaid increase in real estate taxes which the tenant is obligated to pay pursuant to a tax escalation clause; and a reasonable amount necessary to repair any damage, reasonable wear and tear excluded. See G. L. c. 186, § 15B (4).

Note that if the landlord wishes to deduct for damage, he must provide to the tenant within such thirty days, “an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.” See G. L. c. 186, § 15B (4) (iii).

The statute also details what must happen when a landlord who is holding a security deposit transfers the property. See G. L. c. 186, § 15B (5).

The statute also details that the landlord shall forfeit his right to retain the security deposit if he fails to deposit the funds as required; fails to furnish to the tenant an itemized list of damages within thirty days after the termination of the occupancy; uses in a lease any provision which conflicts with the security deposit law, or seeks to obtain a waiver from it; fails to transfer the security deposit to a new owner; or fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy. See G. L. c. 186, § 15B (6).

About the author: Robert Nislick is a Massachusetts real estate lawyer who handles residential and commercial landlord-tenant matters. For more information, call him at (508) 405-1238, or e-mail him at rob@nislick.com.

Don’t Do It – The Case Against Taking a Security Deposit in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. A new tenant is about to lease your house or apartment from you. You would like to take a security deposit from this person.

In the event that the tenant damages the property or fails to pay rent, the idea of having a security deposit available to cover these costs may seem like a good idea. Most landlords probably don’t appreciate the irony that taking a security deposit, in reality, subjects them to a great deal of risk.

If you knew that you could make an honest mistake and still end up having to pay the tenant three times the security deposit, five percent interest, court costs, and the tenant’s attorney’s fees, would you still take one?

Let’s say you took a $2,000.00 security deposit. For whatever reason, you failed to place these funds in a separate bank account. Alternatively, you failed to return the security deposit to the tenant within thirty days after the end of the tenancy.

Under these scenarios, the security deposit law states that, “the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.” See G. L. c. 186, § 15B (7).

The landlord could easily have to pay the tenant more than $7,000.00. Additionally, once a judgment enters, it grows at 12% per year.

Let’s say the tenant sues the landlord to recover her security deposit. Suppose the tenant has damaged the premises. The statute sets forth five separate situations in which the landlord would be barred from filing a counterclaim for damage to the premises. See G. L. c. 186, § 15B (6). The landlord, however, would not be entirely without a remedy. He would have to file a separate civil suit against the tenant to recover for property damage. Nevertheless, the statute forces the landlord to take a more convoluted procedural route than a defendant, in most other kinds of cases, normally has to take.

Suppose the tenant files a small claim against the landlord to recover a security deposit and wins. The landlord wishes to appeal. Under G. L. c. 218, § 23, the landlord would have to provide a bond in an amount roughly equal to the amount of the judgment that entered against him, in order to appeal and have a new trial.

Let’s back up for a moment. Imagine that a tenant who just moved out has wrecked the place. The landlord wants to deduct from the security deposit to repair damage caused by the tenant beyond reasonable wear and tear. Even if the landlord follows the statute to the letter in making the deduction, the tenant may still disagree and choose to file suit. A landlord could easily find himself forced to expend time and resources defending against what appears to be a frivolous or meritless lawsuit.

Under all the circumstances, why would a landlord still want to take a security deposit? It is true that not every landlord gets burned. But if the decision to take a security deposit carries with it a substantial risk of suffering an expensive and unjust outcome, then wouldn’t the landlord simply be better off not taking one to begin with?

About the author: Robert Nislick is a Massachusetts real estate lawyer who handles residential and commercial landlord-tenant matters. For more information, call him at (508) 405-1238, or e-mail him at rob@nislick.com.

Contracts Law and Attorney’s Fees Provisions in Massachusetts

By Robert Nislick

Contracts. Everyone enters into them. Most people fulfill their contractual obligations. Some people do not. There may be a good explanation for why someone has not satisfied his or her contractual obligations. Most of the time, however, there is no good excuse to evade your duties under an agreement.

For the most part, the most prudent advice an attorney can give to a client is to live up to the agreements you have made. This may mean paying for services rendered, or frequently it may mean, doing something you agreed to do.

A large part of the attorney’s job is to bail people out of problems that arise, either when the other person breached a contract, or when the client has allegedly breached a contract and has been sued.

Another large part of the attorney’s job is to help prevent the client from getting into a bad deal to begin with. A client may tell her lawyer about a great business opportunity she is contemplating to undertake with someone else, only to have the lawyer throw a wet blanket over it.

The attorney should anticipate all of the worst-case scenarios that may arise and point them out to the client ahead of time. Maybe everything will work out great. However, business relationships fall off the rails all the time.

When I am drafting a contract for someone, I try to protect the client as best as possible, and I look for ways to get the client out as cleanly as possible if the business relationship goes sour. I have reviewed contracts drafted by other lawyers, including some which have placed one side at such a disadvantage that I cannot believe the lawyer would ever have let the client sign on the dotted line.

In thinking about what can happen when a business venture falls apart, the prospect of having to engage in long, uncertain, expensive, and torturous litigation should not come as a surprise.

Based on the language contained in some contracts, the prevailing party may be entitled to an award of his attorney’s fees. In other words, if there is an attorney’s fees provision in the contract, the loser in the case may have to pay the winner’s attorney’s fees.

Does it always work this way? No.

“The usual rule in Massachusetts is to prohibit successful litigants from recovering their attorney’s fees and expenses except in a very limited class of cases. This rule is known as the ‘American Rule.’ See Waldman v. American Honda Motor Co., 413 Mass. 320, 321-323 (1992). Our traditional approach has been to prohibit recovery of attorney’s fees and expenses in a civil case in the absence of either an agreement between the parties, or a statute or rule to the contrary, and this principle has been applied to deny recovery of attorney’s fees and expenses in declaratory judgment actions.” Preferred Mut. Ins. Co. v. Gamache, 426 Mass. 93, 95 (1997).

“As a general rule in Massachusetts, a litigant must bear his own expenses including attorney’s fees, except where a statute permits the award of costs, a valid contract of stipulation provides for costs, or rules concerning damages permits recovery.” Judge Rotenberg Educational Ctr., Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 468 (1997).

When drafting a contract, is it a good idea to include an attorney’s fees provision? It is hard to give a definitive answer because every situation is different. I have had clients benefit from contractual attorney’s fees provisions.

But I am not always a fan of attorney’s fees provisions in contracts. One reason is that the specter of having to pay the other side’s lawyer may deter a party from pressing what may actually be a meritorious claim. Another reason is that a party with greater resources may feel emboldened to litigate over a small dollar amount against a weaker opponent, when it might not otherwise be worthwhile to expend resources on such a claim.

Similarly, the expectation of winning an attorney’s fee award may deter the parties from negotiating in good faith to solve their problems. Such a situation may also occur where statutes, like the Consumer Protection Act, G. L. c. 93A, or the Condominium Act, G. L. c. 183A, or Massachusetts’s anti-discrimination law, G. L. c. 151B, may obligate one party to pay the other’s attorney’s fees. The issue of attorney’s fees may end up dominating the litigants’ decision making, and actually prevent the resolution of a dispute.

Assuming a party prevails in a case where an attorney’s fees provision is at play. How does the court determine what constitutes a reasonable award of attorney’s fees? “While the amount of a reasonable attorney’s fee is largely discretionary, the judge . . . should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979).

The prevailing party should not expect that the court will require the other side to compensate him every last cent in attorney’s fees that he expended. The court has a lot of discretion to make substantial cuts to the amount of attorney’s fees sought by a party, and often does.

About the author: Robert Nislick is a Massachusetts business and contracts attorney. He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Responding to a Chapter 93A Demand Letter

By Robert Nislick

You are a Massachusetts businessperson. Perhaps you are a landlord, a contractor, a builder, a real estate broker, or a storeowner. Someone you have done business with is upset with you. One day you receive a letter from an attorney, or from the person directly.

The letter may state that is a “Written Demand for Relief”. It may allege that you violated the Consumer Protection Act, G. L. c. 93A. It may accuse you of having committed a host of unfair and deceptive acts and practices. A well-written Chapter 93A demand letter will explain in great detail all the things you are alleged to have done wrong. It may demand that you pay the person a lot of money. It may demand that you take some action or cease and desist from certain conduct. The letter may also claim that you will responsible for paying the plaintiff multiple damages, and the plaintiff’s attorney’s fees and costs.

If you receive a Chapter 93A demand letter, contact Robert Nislick, a Massachusetts business attorney, today.

How you respond to a Chapter 93A demand letter can have a profound impact on the eventual outcome of your dispute. You need experienced counsel to develop the best strategy for dealing with this problem. You will want to analyze whether there are any defects in the letter itself. The letter may not satisfy the minimum criteria required for Chapter 93A demand letters.

It is also possible that the letter was not properly served. This situation may arise when a consumer is seeking to make a demand on a corporation, and fails to serve the registered agent.

It is also possible that you are not engaged in trade or commerce, and consequently, you are not subject to liability under Massachusetts General Laws Chapter 93A. This may be the case, for example, if you are the landlord of a “dwelling unit in an owner-occupied two-family house, where the landlord owns no other rental real property”.[1]

It is also possible that the demand letter was sent to the wrong person. Even though someone may have done someone wrong to the plaintiff, it was someone else, not you.

Perhaps the letter is complaining about something you did a long time ago. You may be able to avoid liability under Chapter 93A based on the statute of limitations. “Actions arising on account of violations of any law intended for the protection of consumers, including . . . chapter ninety-three A . . . whether for damages, penalties or other relief and brought by any person . . . shall be commenced only within four years next after the cause of action accrues.”[2]

It is possible that the person simply made up all or some the allegations in the letter. In this situation, especially if an attorney wrote the letter, you will want to show that the facts asserted are simply not credible. A good response to a demand letter exposes the weaknesses in the plaintiff’s case to the plaintiff’s attorney.

Many Chapter 93A demand letters are designed to intimidate the recipient. The tone of the letter may be harsh or even insulting. A letter like this may make you angry. I will probably tell you to try to take the emotion out of the equation. I want to help my client analyze the strength of the plaintiff’s claim, and the strength of the client’s defenses, based on the facts and the law.

Upon receiving a Chapter 93A demand letter, a defendant is required to investigate the facts.[3] The plaintiff has a reciprocal duty to be straightforward and forthcoming in providing the information necessary to the defendant’s evaluation of the case.[4]

A potential defendant may receive a written demand for relief, but may not be able to fully evaluate the plaintiff’s claim. This may happen where the demand letter is not sufficiently detailed in its allegations. It may also happen where a potential defendant may be liable for someone else’s actions, but legitimately does not know the facts which give rise to the claim. Under these circumstances, the defendant would be justified in telling the plaintiff to provide him with more information, so that he can properly evaluate the plaintiff’s claim.

You may receive a demand letter where the plaintiff makes true allegations, and where you will likely have some liability. Many types of conduct can constitute a violation of G. L. c. 93A.[5] The problem may arise, however, where the amount of damages demanded is ludicrous, or at least, not truly reflective of the plaintiff’s actual damages.

When I analyze a demand, especially one with some merit, I want to gain a clear picture of what the plaintiff’s actual damages are. Similarly, when I am making a demand, I draft my letters so that they reflect my client’s actual damages, and I typically try to itemize those damages as best as I can.

A demand letter that is puffed up with a lot of hot air is much easier to deflate. In the landlord-tenant context, for example, a tenant’s 93A demand letter may assert several different causes of action or theories against a landlord, any of which may potentially subject the landlord to the prospect of having to pay the tenant multiple damages, attorney’s fees, and costs. It would be important to point out in the response that cumulative damages under G. L. c. 93A, and other statutes, for the same wrong, may not be awarded.[6]

The timing and content of the recipient’s response to a Chapter 93A demand letter is vitally important because it provides the recipient with an opportunity to limit his exposure to having to pay only the plaintiff’s actual damages, as opposed to the prospect of having to pay double or treble damages to the plaintiff, plus his attorney’s fees and costs.[7]

The recipient of a demand letter will want to make a written tender of settlement within thirty days of receiving the demand letter. The recipient should make a reasonable settlement offer. The plaintiff may reject the written tender of settlement and file suit anyway. If this happens, the defendant can file the written tender of settlement and an affidavit concerning its rejection with the court. If the court finds that the written tender of settlement was reasonable in relation to the injury actually suffered, the defendant can limit the plaintiff’s recovery to the relief tendered.

By contrast, if the court finds for the plaintiff, it will order the defendant to pay actual damages. Additionally, if the defendant willfully or knowingly committed an unfair and deceptive act and practice in violation of G. L. c. 93A, the court will order the defendant to pay the plaintiff between two and three times the actual damages. Additionally, the court will order the defendant to pay the plaintiff reasonable attorney’s fees and costs.

The court, however, “shall deny recovery of attorney’s fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for relief required by this section.”[8]

Businesspeople must take a Chapter 93A demand seriously. Attorney Robert Nislick is an experienced litigator who has drafted and responded to these letters. If you are having a dispute with a Massachusetts consumer, contact Robert Nislick today.


[1] See Billings v. Wilson, 397 Mass. 614, 616 (1986).

[2] G. L. c. 260, § 5A.

[3] See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 628 (1978).

[4] Parker v. D’Avolio, 40 Mass. App. Ct. 394, 402 n.9 (1996).

[5] See 940 Code Mass. Regs 3.00.

[6] See McGrath v. Mishara, 386 Mass. 74, 84-85 (1982).

[7] See G. L. c. 93A, § 9(3), (4).

[8] See G. L. c. 93A, § 9(4).