Patricia Whiting Harvard Legal Aid Bureau Getting Repairs Made Patricia Whiting Harvard Legal Aid Bureau Mass. Law Reform Institute Mass Continuing Legal Education Basic Benefits Training

TENANTS HAVE A RIGHT TO A DECENT PLACE TO LIVE In MA, there are 4 sources of this right: 1) State Sanitary Code; 2) City/Town health ordinances; 3) The warranty of habitability; and 4) The law of quiet enjoyment.

STATE SANITARY CODE Massachusetts regulations whose purpose is to protect the health, safety and well-being of the occupants of residential housing. Sanitary Code (SSC) sets minimum legal standards that landlords must meet, and applies whether you have a lease or not. For example, all rental housing must have heat, hot water and electricity. Kitchens and bathrooms must have sinks with running water.

STATE SANITARY CODE The SSC is enforced by local health departments. In Boston, it is enforced by the Inspectional Services Department (ISD). If ISD or the local board of health find a violation, the LL is ordered to make repairs within a certain number of days after being cited for the violation. The Housing Code Checklist (Booklet 2) outlines the main parts of the SSC and tells you how long a LL has to make repairs after being cited by ISD.

LOCAL HEALTH ORDINANCES In addition to the SSC, landlords must comply with any local ordnances regulating rental housing. These ordinances may impose stricter requirements on landlords than the SSC. For example, some cities have a local health ordinance requiring landlords to obtain a certificate of occupancy from the local board of health before renting. Ordinances apply whether or not a tenant has a written lease.

WARRANTY OF HABITABILITY In renting property, landlords are promising that the apartments that they rent are safe and habitable. A LL is in violation of the warranty of habitability (WOH) from when he has notice of conditions that may endanger or impair health and safety under the SSC. Tenants have this right whether or not there is a written lease. The LL cannot disclaim this duty by including a lease term that makes the tenant responsible for all repairs. The LL cannot claim that he lowered the rent the tenant was charged because of the bad conditions.

THE LAW OF QUIET ENJOYMENT If conditions are very serious such that they impact the tenant’s ability to use and enjoy her home, the LL has interfered with the tenant’s right to quiet enjoyment. A tenant has a right to be free from unreasonable interference with the use of her home. Such conditions that might interfere with the tenant’s quiet enjoyment include, but are not limited to: No heat No water Rodent infestation

HOW TO GET REPAIRS MADE Notify the LL about the problem and ask her to make repairs – best to do it in a way you can document (letter, text, email) in case the LL later decides to deny receiving notice. Keep copies of all communications to help document your efforts to get repairs made. Take pictures. LL should give you “reasonable” notice of when he’s coming to make repairs (at least 24 hours). Ask the LL to reschedule if you cannot be available at the time he suggests.

HOW TO GET REPAIRS MADE Call ISD or the local board of health – if the LL has not made repairs after you’ve notified him and given him a reasonable chance to make repairs, you can request an inspection of the apartment from the board of health. The inspector will cite any violations of the SSC and order the LL to make repairs within a certain period of time. It is illegal for a LL to retaliate against a tenant for calling the board of health.

BOARD OF HEALTH INSPECTION Try to schedule a definite appointment for the inspection. An inspection should be done within 5 days of your request (24 hours if an emergency). If you have difficulty getting an inspection scheduled, you should write a letter to the board of health requesting an inspection (and keep a copy for yourself).

BOARD OF HEALTH INSPECTION Be prepared for an inspection – inspectors can cite the tenant for violations of the SSC including not taking out trash, unsanitary kitchens, excessive clutter or blocking hallways or doorways. So clean up if necessary. but not mouse and roach droppings! Request a “comprehensive” inspection, which includes the unit, the exterior of the building and all common areas. Otherwise, the inspector is only required to check for serious violations and the conditions you specifically asked to be checked.

BOARD OF HEALTH INSPECTION Don’t rely on the inspector to find everything, even if you request a comprehensive inspection. Point out all violations you know about and make sure the inspector writes them down. The inspector should give you a copy of her report at the end of the inspection. If she doesn’t do so, ask for one. The inspector must send a signed copy of her report to the LL within 7 days.

BOARD OF HEALTH INSPECTION If the inspector finds a condition that is so serious that it “may endanger or materially impair” the safety or well-being of the occupants, she must send your LL a copy of the report within 12 hours and the LL is required to make a “good faith effort” to correct these violations within 24 hours of receiving the notice. For less serious violations, the inspector should send the report within 7 days of the inspection and include an order that the LL must begin making repairs within 5 days and complete them within 30 days of receiving the order.

OPTIONS IF THE LL REFUSES TO MAKE REPAIRS If the LL does not make repairs after you have either notified him in writing or he has been ordered by the BOH to make repairs, a tenant has several options: 1) Withhold rent 2) Repair and Deduct 3) Go to Court 4) Organize 5) Break your lease

Withhold Rent Withholding rent can help get repairs done, but there are risks as well. A tenant can withhold rent if: Conditions that violation the SSC exist; They “endanger or materially impair” the health and safety of the occupants; The LL has knowledge of the conditions before you start withholding or otherwise fall behind in rent. Conditions not caused by the tenant, household member or guest.

Withhold Rent If a tenant legally withholds rent, the LL cannot evict the tenant for nonpayment of rent, although he may try to do so. Withholding can give the tenant power to negotiate about what repairs are made and when, and how much of the withheld rent the LL will receive when they have been completed. Tenant should hold onto the withheld rent so it’s available to pay the LL after repairs.

Withholding Rent Be prepared for how the LL may react – he may try to evict you. Before you withhold make sure you: Document the bad conditions; Meet all the requirements of withholding rent; Hold onto the withheld rent; Use the sample Rent Withholding Letter (Form 12) Do not withhold rent lightly!!

Repair and Deduct If certain conditions are met, tenants have the right to make repairs and then deduct up to 4 months rent to cover the cost. Doing this right is tricky, so make sure you meet all the requirements before you do so. This method is not widely used, in part because it is difficult to comply with the requirements of the statute.

Go to Court If the LL refuses to make repairs you can take him to court. The court has the power to order the LL to make repairs or restore utilities (heat, electricity, water etc.). You can also sue the LL for damages, but that won’t get the repairs made.

Organize If there are conditions in multiple units of the building, you can try to get other tenants to agree that you will all withhold rent until the LL makes repairs. You can also have multiple tenants bring a case in court seeking an order that the conditions be fixed. If conditions are really bad, the tenants together can request the appointment of a receiver to take over management of the building.

Break your Lease Where there are very serious violations of the SSC in your apartment, a tenant may be able to break her lease. Before doing this you should make sure to give the LL written notice of the conditions and an opportunity to repair. Also best to get a BOH inspection. The LL may try to sue you for the balance of the rent due under the lease. So make sure you have documentation of conditions and efforts to get repairs.

When Can a Landlord Enter A landlord must have permission to enter a tenant’s apartment A lease may allow landlord to enter to: Inspect the apartment Make repairs Show apartment to prospective tenants or buyers Where a tenant has a lease or not, tenants required to provide reasonable access to make repairs.