On the surface, renting a house or an apartment seems like a simple transaction. Just place an ad; locate a tenant; show the property; and get a lease signed. Unfortunately, what appears to be straightforward is often not the case. Massachusetts law contains numerous traps that create risks for the uninformed landlord or rental agent. Among the laws and regulations most frequently violated are those governing security deposits, agent’s fee notices, lead paint, and charging for water. Not only may failure to obey all requirements jeopardize an agent’s right to be paid, it can also lead to a liability for personal injuries and other damages, punitive damages, and attorneys’ fees.
Security Deposit Law - Chapter 186, Section 15B
This statute merits reading multiple times, since it contains numerous technical requirements. The case, Ciociola v. Clark, illustrates one type of violation. In this case, a landlord agreed with his tenant, an attorney, to place the security deposit in escrow in a Vermont bank in order to earn a higher interest rate. After pipes burst, the tenant vacated the apartment and a dispute arose. The tenant sued to get back the entire security deposit, claiming that the landlord had violated the law by failing to place all funds in a Massachusetts bank. The Appellate Division of the District Court ruled that, even though the tenant had knowingly agreed to have funds held in Vermont, the law required all funds to be held in a Massachusetts bank. The Court ruled that a tenant cannot waive the protection provided of the law and awarded damages of three times the deposit. The Court reasoned that the legislative purpose for requiring the deposit to be kept within Massachusetts was to provide easy access to the funds in the event of a dispute. The law states that any attempt to waive a protection given tenants is void as against public policy. See significant aspects of the Security Deposit Law at BayStateRealtor.com.
Rental Fee Notice 254 CMR 7.00
This licensing regulation requires that rental agents must provide prospective tenants with a notice that states whether the tenant will owe a fee for the agent’s services, the amount of the fee, when and how the fee is to be paid, and whether or not any fee will be due if no rental occurs. This notice must be given at the first personal meeting with a prospective tenant. It must be signed by the real estate agent and must contain the date and agent’s license number. If the tenant declines to sign, that refusal should be noted. Failure to provide the notice can jeopardize the agent’s right to be paid by the tenant and can expose the agent to a claim for violation of the Consumer Protection Act, Chapter 93A. If a violation is found, the tenant may be awarded treble any actual damagesplus attorneys’ fees.
Lead Paint Law - Chapter 111, Section 197A
This law requires that prospective tenants be given a pamphlet prepared by the Department of Public Health (DPH) that describes the hazards of lead paint. A disclosure form that is part of the pamphlet must be completed by the landlord. The landlord must disclose whether or not lead paint is present and must provide copies of the results from testing for the presence of lead paint. Failure to comply with these regulations is likely to lead to an award of treble damages as well as attorneys’ fees. There is an exemption for vacation and recreational rentals of up to 31 days, a period shorter than that for the security deposit exemption.
For years landlords fought DPH regulations that required that they pay for water used by tenants. They argued that the regulation gave tenants no incentive for conservation. The water metering law, Chapter 186, Section 22, allows landlords to pass the cost of water to tenants, but it contains many requirements that are often difficult and expensive to meet. A dwelling shall become eligible for water charges only when a new tenancy begins and only if: (1) the dwelling is being occupied for the first time; or (2) the previous tenant vacated the dwelling voluntarily or was evicted from the dwelling unit for nonpayment of rent or for breach of lease or rental agreement. In other words, existing tenancies are not eligible.
An owner may not charge the tenant for water usage measured by a meter or submeter unless the meter measures water supplied for the exclusive use of that dwelling. In addition, before the tenant may be charged for water usage, the owner must install “fully functional water conservation devices for all faucets, showerheads, and water closets [toilets],” and must send a certificate of compliance to the local board of health or other department that enforces the State Sanitary Code. Certification must include a statement that: (1) the dwelling is eligible for the imposition on the tenant of a charge for water usage;(2) all required devices in the dwelling have had water conservation devices installed by a licensed plumber; and (3) the water submeter was installed by a licensed plumber and is in compliance with standards of accuracy and testing of the American Water Works Association or a similar association. The owner has an obligation to maintain the water supply system in good working order, including any water conservation device. There are many technical requirements regarding billing outlined in detailed regulations. For example, on the first day of a tenancy, the landlord must provide the tenant with the current meter reading. The landlord may not add charges for meter reading or administration. The total of all water charges to all tenants may not exceed the amount paid by the landlord. There are other requirements noted in the regulations.
Landlord-Tenant Regulations Under Chapter 93A and 940 CMR 3.17
Among the multitude of requirements in these regulations is the requirement that every tenant be given a copy of the rental agreement within 30 days of signing. Failure to comply with any statute intended to protect a consumer is a 93A violation and may give rise to treble damages.