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.

Landlord and Tenant Issues Related to The Regulation and Taxation of Marijuana Act

By Robert Nislick

On Election Day 2016, Massachusetts voters approved Question 4, and passed The Regulation and Taxation of Marijuana Act. One purpose of the act is to “make marijuana legal for adults 21 years of age or older”. See Act, § 1. The act will take effect on December 15, 2016. See Act, § 12.

The legalization of marijuana will affect Massachusetts landlords and tenants. The portion of the Act dealing with the regulation of the use of marijuana not medically prescribed, states in pertinent part:

“This chapter shall not be construed to:

(1) prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation;

(2) prevent the commonwealth, a subdivision thereof or local government agency from prohibiting or otherwise regulating the possession or consumption of marijuana or marijuana accessories within a building owned, leased or occupied by the commonwealth, a political subdivision of the commonwealth or an agency of the commonwealth or a political subdivision of the commonwealth; . . . .”

Act § 5, G. L. c. 94G, § 2 (d).

Essentially, a landlord can prohibit a tenant from smoking marijuana in the leased premises. The landlord may want to have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will prohibit the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit. For additional insight, please read my companion article, “Smoking and Evictions in Massachusetts”.

However, a landlord cannot prohibit a tenant from consuming marijuana by means other than smoking, unless failing to do so would cause the landlord to violate a federal law or regulation. One interesting feature of the new law, which many private landlords will consider unfair, is that it provides the commonwealth and local governments with the ability to prohibit tenants from possessing or consuming marijuana, outright and in all forms, in a building owned by the government, whereas the private landlord can essentially only prohibit smoking.

Additionally, the portion of the Act dealing with personal use of marijuana states in pertinent part:

“[A] person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: . . . (2) within the person’s primary residence, possessing up to 10 ounces of marijuana and any marijuana produced by marijuana plants cultivated on the premises and possessing, cultivating or processing not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once;”.

Act § 5, G. L. c. 94G, § 7 (a).

Essentially, a tenant can cultivate twelve marijuana plants in his primary residence. This requires water, electricity, and heat. It is easy to envision how a tenant may be growing his dime bag on the landlord’s dime.

Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. “[A] writing is required when the obligation to provide heat and hot water is transferred to the tenant.” Young v. Patakonis, 24 Mass. App. Ct. 907, 908-909 (1987). Concerning the cost of water, G. L. c. 186, § 22, allows a landlord, under certain circumstances, to bill the tenant for water for his water usage. However, the landlord must satisfy many onerous requirements before qualifying to bill the tenant for his water usage.

With approximately 11,000 summary process cases having been filed in the Boston Housing Court and Worcester Housing Court in 2015, with many thousands more filed in the other divisions of the housing court, and in the district court, it is safe to assume that the new marijuana law will become the subject of litigation between landlords and tenants.

Landlords, property managers, and tenants should seek legal counsel to help them navigate through the haze.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Trustees’ Responsibilities and Unit Owners’ Right of Access to Condominium Books and Records in Massachusetts

By Robert Nislick

When a dispute starts to arise between and a unit owner and a board of condominium trustees, the unit owner may ask to review the financial records of the condominium. The unit owner may suspect that the trustees are expending money wastefully or improperly.

What records must the condominium trustees maintain? What rights does the unit owner have to access the books and records of the condominium? How can the condominium trust satisfy its obligations to the unit owner?

Pursuant to G. L. c. 183A, § 10 (c), the organization of unit owners or the condominium’s managing agent shall keep a complete copy of: (1) the master deed, (2) the by-laws, (3) the minute book, to the extent such minutes are kept, and (4) financial records, including and relating to: (i) all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements, (ii) the replacement reserve fund or any other funds, (iii) audits, reviews, accounting statements, and financial reports relating to the condominium’s finances, (iv) contracts for work to be performed for or services to be provided, and (v) all current insurance policies, or policies which name the organization as insured or obligee. The statute requires that these records be kept in an up-to-date manner within the commonwealth.

Additionally, any unit owner and first mortgagee has a right of reasonable inspection of these records during regular business hours. Access to said records includes the right to photocopy said records at the expense of the person or entity making the request.

If a unit owner requests to inspect the books and records of the condominium, the trustees or the property manager should be willing to set up an appointment for the unit owner to view the records, or photocopy the records and provide them to the unit owner. The association risks getting sued by the unit owner if the trustees fail or refuse to provide reasonable access to these records. Even if it seems like an inconvenience, the condominium association should make every effort to comply with the unit owner’s request in a timely and efficient manner.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him 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.