President’s Message
Massachusetts landlords operate their businesses in one of the toughest states in which to run this type of business. We must all follow lead laws (the toughest in the country), “move and store” laws, security deposit laws, a widening array of anti-discrimination laws, just to name a few. This year we will begin dealing with two new laws that are bound to generate a lot of confusion.
The Domestic Violence Law states that a tenant can now break a lease and move if the issue is domestic violence. To most small landlords, this is something we would allow anyway. MRHA members who testified at the Statehouse were instrumental in getting legislators to listen to our concerns about the noise and damages that usually accompany domestic violence incidents and would disturb the “quiet enjoyment” of other tenants in the building. As a result, legislators removed the stipulations that landlords could not deny a prospective tenant with a history of domestic violence, in effect making them a protected class, and that a victim of domestic violence could not be evicted.
Because of these concerned MRHA members, we now have a law that extends necessary protections to victims of domestic abuse but is fair to landlords and other tenants in the building. If you are one of those members who testified or contacted your local legislators, we thank you, and for all others, please consider being more informed about upcoming legislation that could hurt you and your business. The new legislative session begins this year and we will soon write about the bills that landlords should be concerned about. One MRHA member is meeting with the Governor this month and will present our issues to him.
A second law that became effective January 1, 2013 is the “Medical Marijuana” law. How does this law affect “Smoke-Free Building” policies? Is it conceivable that tenants can smoke “pot” but can’t smoke cigarettes? Is it discrimination against the disabled if we do not rent to a “pot-smoker” who has a doctor’s prescription? What about growing plants inside rental units and mold issues? These are complex questions that the MRHA legislative team is reviewing. The good news is that we can look to several states like California and Colorado that have had medical marijuana on the books for ten years.
In this newsletter, read about the different landlord perspectives on Medical Marijuana and how one Massachusetts landlord ran afoul of the lead laws and got caught.
Krystine
**The next meeting is January 23 at 7 PM in the MetroWest area**
Information will be sent to MRHA board members to share with their groups.
All members are invited to attend.
Legislative: Update on Medical Marijuana
The Government has done it again. Actually, our fellow voters have done it this time. I am talking about the new medicinal marijuana law that passed last November. Whether you agree or disagree with the results of the vote, the fact remains that this law adds another level of complication for landlords to follow. The gist of the referendum question allows doctors to prescribe pot as a prescription drug. Users with a prescription will be able to either purchase or grow their own supply, up to six plants in pots inside. Thirty-five dispensaries, one in each county, will supply patients with weed. Most residents in Massachusetts agree with this, the vote was over sixty-seven percent to pass.
What’s the problem? There are a couple. The major problem is the federal government says Marijuana is illegal. Under federal law anyone found with marijuana, especially plants, can be arrested for cultivation and the Feds can take the property where the plants are found under asset forfeiture laws. Originally this was only done when the owner of the building was found to be involved in the illegal behavior. Now the current state laws are in conflict with Federal laws. Landlords should be used to this, laws in conflict with one another, leaving landlords in a position where they are forced to break a law to not break another law.
Some say don’t rent to people with a marijuana prescription; then the question becomes is the landlord discriminating against the disabled. If marijuana is legally prescribed in the state, then not renting to someone with a prescription is discrimination, which can brings huge fines and other sanctions through the Massachusetts Commission against Discrimination (MCAD). It is not clear how the Federal Government will react to Massachusetts new medicinal marijuana laws. In California, which has had a medicinal marijuana law for over a decade, they have had problems recently. Federal authorities have raided dispensaries and charged some owners with breaking federal laws. As of yet, there has been no attempt to arrest or harass patients, who are the end users, but who knows.
Some owners are trying to make a mountain out of a mole hill, saying that the new law puts all owners in danger. Theoretically that maybe true, but in reality it is unlikely to occur, especially for patients. Somewhere, a landlord may end up running afoul of either Federal or State law and have to protect themselves probably by refusing someone with a prescription. Landlords must be prepared to push back against government inconsistency. The question is will the federal government use their powers to stop the implementation of the law in Massachusetts. After the state implements the law and approves the locations for dispensaries, then we will find out how the Feds will react. For everyone’s sake let’s hope that common sense will prevail, and landlords will not be put into a no-win situation.
Landlord Pleads Guilty to Misleading Tenants about Lead Paint
This sad story illustrates how far a landlord will go to avoid the hassle of deleading a property. As a landlord, it is a business obligation to follow the lead laws. Although the laws are complicated and can be expensive, savvy landlords know that they can get their “Moderate Risk Deleaders” license which allows them to “cover” or “remove and replace” most lead componants after a lead inspector has conducted an inspection. Each deleaded unit can also claim a state tax credit of up to $1,500. This cuts down the cost of deleading drastically and landlords can sleep better knowing that they cannot be sued for lead.
A Worcester area landlord has pleaded guilty and been sentenced for fraudulently claiming that one of his properties had been de-leaded and endangering the children who lived in the property.
The landlord pleaded guilty during his trial in Worcester Superior Court to charges of Child Endangerment, Larceny by False Pretenses, and Uttering (2 counts). He was sentenced to three years of probation, with the condition that he disclose all properties he owns to the Department of Public Health and de-lead the properties as directed by them. He must also complete 300 hours of community service. (The Commonwealth had recommended that he be sentenced to 18 months in the House of Correction, 59 days to serve, with the balance suspended for three years, and to pay $9,825 in restitution to the victims.)
The landlord failed to comply with lead laws by failing to disclose what he knew about lead paint in the properties, failing to inspect the properties for lead paint, and then submitting fraudulent certificates of lead compliance instead of having the properties properly de-leaded.
According to the evidence presented at trial, a family with two children under the age of six rented one of the properties in February 2007 based upon his verbal representation that the property had been de-leaded. Massachusetts Law requires owners of properties containing dangerous levels of lead to abate or contain lead whenever a child under six years of age resides in the property. Two years later, the family performed a home lead test which revealed lead in the property, and contacted the Board of Health to request a lead determination.
Lead was found lead in the children’s bedroom and a bathroom and, on March 31, 2009, the Board of Health issued an order to the landlord to correct the lead in the property. The landlord provided the family with a document purporting to be a letter of full de-leading compliance for the property and the Massachusetts Tenant Lead Law Notification and Certification Form, which is required by law to be provided by landlords to tenants prior to renting properties built before 1978. He also filed the purported letter of full de-leading compliance with the Board of Health. A subsequent review of the letter conducted by the Massachusetts Department of Public Health’s Child Lead Poisoning Prevention Program (CLPPP) determined the documentation to be fraudulent due to the fact that it claimed to be prepared by a person who was never a licensed lead inspector in Massachusetts, it bore a license number that had never been issued by the Department, and contained fictional phone numbers.
Discriminate against dog breeds?
The State Legislature and Governor Deval Patrick have overturned Boston’s pit bull ordinance that required pit bulls to be registered with the city and to wear muzzles while out in public. The ordinance also barred residents from housing more than two pit bulls. Similar ordinances in Lowell, Canton, Winthrop and other cities and towns were struck down by the same new legislation.
The new legislation might affect property owners if tenants with pit bulls or other dog breeds considered dangerous are denied housing because of the dog(s). It could be considered discrimination, which is exactly what animal activists are saying it is.
The new legislation is designed to be breed-neutral and to require people to work on a case-by-case basis so that “good owners and good dogs are not punished unfairly.”
That may be a clue as to how owners might handle the issue of potentially dangerous dogs. In fact, any dog poorly treated can become vicious.
We have yet to hear how the insurance industry is responding to this legislation. The insurance companies initially refused to cover buildings with certain breeds of dogs that were considered dangerous as a result of many lawsuitsallegingvicious attacks by dogs. Landlords followed the advice of their insurance companies and banned these dogs from their buildings.
IT’S THE LAW
by Mark Burrell, Esq.
Q. What is the law regarding snow removal at my property?
A. The Code of Massachusetts Regulations (CMR) governs landlord snow removal. Specifically, it’s 105 CMR 410.451 and 452. To quote from those two sections: “The owner is responsible for maintaining free from obstruction every exit used or intended for use by occupants of more than one dwelling unit or rooming unit.” Further “The owner shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice, provided, however, in those instances where a dwelling has an independent means of egress, not shared with other occupants, and a written letting agreement so states, the occupant is responsible for maintaining free of snow and ice, the means of egress under his or her use and control.”
Along those lines, section 451 states: ”The occupant shall be responsible for maintaining free from obstruction all means of exit leading from his unit and not common to the exit of any other unit.” In other words, landlords are required to remove snow and ice from exterior stairways and fire escapes which are used in common by all the different tenants at the property. In cases of single family houses or where just one tenant has exclusive use of a stairway or fire escape, the landlord does not have to clear snow and ice away as long as there is a written lease with that tenant that states that those specifics areas are the tenants’ responsibility. And remember, if you have made it the tenants’ responsibility, do not provide the tenant with a snow shovel, salt, sand or any other assistance. It could make you liable for any problems stemming from the snow removal.
More Spotters on Fair Housing
The Greater Boston Association of REALTORS®, a Division of the Greater Boston Real Estate Board has issued this Legal Advisory. We pass this on to MRHA members, many of whom are Realtors.
Please be advised that the U.S. Department of Housing and Urban Development and Suffolk University Law School have partnered to commence a program directed at identifying fair housing issues and violations within Boston and Massachusetts to eliminate discrimination and ensure fair and equal access to housing, public services, accommodations and participation in activities.
The partnership will pair up the Boston Fair Housing Commission with Suffolk University Law School's clinical program to conduct systemic and complaint-based fair housing testing. The testing will focus on LGBT, disability, and familial status issues, while the complaint-based testing will support state and local Fair Housing Assistance Programs.
As such, it is our understanding that the City of Boston’s Office of Civil Rights will commence fair housing testing very soon. So, this may be a good time to refresh your understanding of the Federal and Massachusetts Fair Housing Law [brief Overview below with FAQ], reviewing and establishing Uniform Office Policies
Massachusetts Commission Against Discrimination (MCAD) (617) 727-3990
TheGreater Boston Association of REALTORS®, a Division of the Greater Boston Real Estate Board has issued this Legal Advisory. We pass this on to MRHA members, many of whom are Realtors.