By Robert S. Kutner, Esq. Partner, Casner & Edwards
REALTORS® and landlords advocated for more than 15 years to change the water usage regulations of the Department of Public Health (DPH). Finally successful, a law took effect in March of 2005 that permits owners of residential properties to install submeters to measure water usage by tenants and to require tenants to pay for their water and sewer usage. (General Laws Chapter 186, Section 22).
Real estate agents who manage residential rentals, agents who sell rental properties, and landlords of residential rentals are encouraged to become familiar with the law before charging tenants for water usage. Like other “watershed” events, the water metering law does not apply automatically to all residential properties and carries many conditions.
Minimum requirements for residential properties as described in the State Sanitary Code (105 CMR 410.180 and 410.750(E)) include that a property owner must “provide” water of sufficient quantity to meet the needs of each occupant. For years the DPH interpreted this regulation as not only requiring that owners make water available to tenants, but that the owner “pay” for the water, regardless whether separately metered. The DPH treated water as essential to human health. Property owners, on the other hand, argued that unless tenants were responsible to pay for their water usage, the tenants would lack an incentive to conserve. On occasion, disgruntled tenants would retaliate against their landlord by allowing water to run for days, generating a huge bill. The water metering law addresses each of these concerns.
Water Metering Law
The law, entitled, “An Act Authorizing Water Submetering In Residential Tenancies,” permits owners of residential properties to install submeters and charge tenants for water usage. It also applies to any dwelling where the water company directly meters a dwelling. Because sewer bills are generally a by-product of water usage, the new law allows property owners to pass along a comparable bill for sewer use. Although a tenant may be eligible to pay for metered usage, there are significant conditions that a property owner must satisfy before requiring a tenant to pay.
A dwelling shall become eligible for imposing water charges to the tenant 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, tenancies existing in March 2005 are not eligible to be modified to add water charges.
Submeter and Water Conservation Requirements
An owner may not charge the tenant for water usage measured by a meter or submeter unless the meter measures only water that is supplied for the exclusive use of the particular dwelling. In addition, there is a water conservation requirement that is imposed on the owner before charges for water may be passed along to the tenant. 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 Santitary 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.
Rental Agreements and Billing
An owner may not charge a tenant for water usage unless the tenant has signed a written rental agreement that conspicuously provides for that charge. Each bill for water usage must state the current and previous meter readings, the date of each such reading, the amount of water consumed since the last reading, the charge per unit of water, the total charge, and the payment due date. If a tenancy begins after the period for which the water company billed the owner, the owner must mail to the tenant the reading on the submeter for the dwelling unit as of the first day of the tenancy. The owner may bill the tenant only for water measured after that reading. The owner may not add a charge for meter reading or administration. Charges shall be billed to the tenant in at least as many periods as the water company bills the owner. If the owner bills the tenant on a monthly basis, payments shall be due 15 days after the date the bill is mailed to the tenant, but if the tenant is billed for a period longer than one month, payment shall be due 30 days after the date the bill is mailed. Nonpayment by the tenant is a breach of the written rental agreement. Violation may be cured by payment of the water charges in full prior to any court hearing.
When a tenancy ends during a billing period for which the owner has not been billed by the water company, the owner shall give the tenant the meter reading on the last day of the tenancy (or by mail the following day) and a final bill for water usage in the dwelling unit since the last reading, calculated at the rate charged by the water company in the last bill to the owner. The final bill to the tenant is due immediately. If the tenant does not pay, the owner may deduct the amount from any security deposit. If the water company charges the owner a lesser rate, the owner shall recalculate the bill and mail a rebate for any overpayment. If there is a leak that increases a meter reading, the owner shall determine the amount and adjust the bill.
While the water metering law provides important benefits to owners, substantial care must be taken, since any infraction could be a basis for a claim under the Consumer Protection Act, Chapter 93A, including the
return of water and sewer payments. Therefore, property owners are urged to review the law and regulations carefully before charging a tenant for water usage.