Building Permits and Local Ordinances

We recently touched on the issue of obtaining building permits in home improvement work.  In addition to state requirements, most cities and towns have their own local ordinances that govern home construction.  You are likely aware that cities and towns dictate zoning and setback requirements, but did you also know that local ordinances can also put further conditions on the manner and means of pulling a building permit?

The City of Waltham is currently contemplating a new ordinance governing the issuance of their building permits.  The proposed ordinance would impose more onerous requirements on the applicant for building permits on construction projects that are estimated to exceed $500,000 – so the ordinance would not apply to minor home improvement projects, but could very well apply to new construction or significant additions.  Among the proposed requirements, the ordinance would disallow such permits to be issued to any firm that has “been debarred or suspended from performing construction work by any federal, state or local government agency or authority in the past three years.”  The proposed ordinance also places more stringent requirements in regards to workers compensation insurance and compliance with wage and hour laws.  

When hiring a home improvement contractor, talk with them about their experience in your city or town.  Contractors tend to focus most of their work in one or several towns, making them more experienced in dealing with the local building departments and inspectors.  The more work they do in your city or town, the more likely they will be familiar with local requirements – and the more likely it will be that the permitting process will go smoothly.

You may also want to speak with your local building department to ask about your potential contractor before hiring him or her.  The city officials might have some valuable insight about your contractor.

Another Trap for the Unwary - Building Permits

On this blog we previously discussed what to look for when hiring a home improvement contractor.  But what about after you hire that contractor?  Another trap for the unwary is during the process to obtain the building permit.  Under the Massachusetts Home Improvement Contractor statute, in order to avail yourself of some of the statutory benefits available to homeowners, the contractor must pull the building permit.  Resist any attempt by the contractor to convince you otherwise.  If a contractor insists on the homeowner pulling the permit, this may be a sign that something is not quite right with the contractor.  It may be that the contractor is not licensed, or is uninsured.  

If the homeowner, rather than the contractor, pulls the building permit the homeowner is no longer eligible to participate in the Home Improvement Arbitration Program or the guaranty fund.  Both of these programs were set up by the Commonwealth of Massachusetts specifically to assist aggrieved homeowners.  What’s more, by pulling the building permit, the homeowner takes on significant liability for the project and may take on liability for the workers performing the work.

If you’ve done your research you can reduce the risks of being caught off guard by a contractor trying to skirt the rules.

Requirements for a Home Improvement Contract

As we have posted before, when you undertake a home improvement project -- a renovation, an addition, finishing a basement -- the contract between the homeowner and the contractor is likely covered by Chapter 142A.  Chapter 142A has some specific requirements for contracts.  In this post, we are going to focus on the requirement that the contract include a detailed description of the work to be performed and the materials to be used.

What does that mean?  It means that the contractor must tell you exactly what materials he or she plans to use.  For example, the contract should specify the brand of paint and the specific product line - Benjamin Moore paint, Aura line or Sherwin Williams paint, ProMar 200 line (the listing of any product or brand is not an endorsement, merely exemplary).   The contract should not just specify the finishes, but also the materials that you won't see, like insulation. You should know the R value -- the higher the R value the better an insulator -- of the insulation, whether a water/vapor barrier, like Tyvek is being used on your project.  When a contract complies with this statutory requirement, the contractor can properly estimate the cost and the homeowner can understand exactly what they are getting.  If the contract specifies American Standard bathroom fixtures, then there will not be a misunderstanding about what type of faucet was installed. If the homeowner wants Kohler faucets, they must speak up and work out any price differential with the contractor.  At the same time, the contractor can provide an allowance based on that specification and kept its costs managed.  In short - the more detail the better.  It minimizes misunderstandings about what is being done and used on the project.

The detail required for the scope of the work is no different.  The requirement is for the benefit of both sides. The homeowner should know, for example, whether interior walls are being insulated. If they are, then the contractor must calculate that into its costs as it prices the job.  If the scope of work does not include such an entry, then the homeowner can ask about it and tell the contractor that they want the insulation to reduce noise.

The lack of details and hence, misunderstanding from the start of the job.  By complying with the law, both sides are protected and understand what is being provided.

Are Housemates the Solution to Lowering your Housing Costs?

Massachusetts housing costs are very expensive -- rent is expensive and the prospect of buying a home may seem completely out of bounds if you are single or on a limited income.  Lately, we've been working with people who have tried to manage their housing costs by purchasing a property and renting rooms in their home out to others.  While this can be a great way to offset some housing costs, there are some things you must consider.

• How many rooms are you renting out?  Many cities and towns have zoning rules which consider a residence who has 4 or more unrelated people living together (including the owner) to be a rooming house.  Rooming houses have zoning and other restrictions.  Check with your municipality to determine the rules.

• Have a written agreement.  Not only should the lease include typical terms like the duration of the lease and the amount of rent, but include lifestyle rules.  Are pets allowed?  What about quiet hours?  What are the rules regarding the kitchen?  Does everyone need to have their own ketchup or can food be shared?  When you are renting an apartment or a house, these things may not be as important (or may be completely irrelevant).  However, when you are sharing your house or condominium with someone, you need to consider what your day-to-day interactions are going to look like.  You should also consider how the relationship ends.  It might make sense that you or the other person can end the tenancy with 30 days' notice.  While it diminishes certainty of income, it gives you the freedom to terminate a lease with a housemate who just is not working out.

• Be up front with prospective housemates.  If you host a dinner every Wednesday with your friends and they stay until 11 pm each week, then say so. If you want only to rent to vegetarians, be clear in your advertisement.

• Be prepared to be a good housemate yourself.  Think of housemates as permanent visitors. If you share your house with others, you must also be a considerate resident.  

• Make sure you handle any last month's rent and security deposit correctly.

What is cross-metering?

   In Massachusetts, in general, a landlord is required to pay for a tenant's electric and gas utilities unless, there is a separate meter which serves only the dwelling unit or other areas that a tenant uses exclusively and a written lease which states that the tenant is responsible for those utilities.  If a tenant is paying for electricity or gas other than the electricity he or she is using in the unit, then, often times, one uses the term cross-metering.

    Because of the way the Sanitary Code regulations are worded, if you are renting and paying for more than just your unit's electric or gas, you should not be paying any of it.  The remedy is not to figure out what percentage of the bill is from your electric use.  Rather, the remedy is that you are entitled to reimbursement from the landlord for the entirety of those utility bills.

     Further, the Consumer Protection Statute regulations, Section 3.17 that it is an unfair practice for an owner who is obligated by law to provide gas or electric service and fails to provide such service.  As we have noted previously, when a defendant engages knowingly or willfully in unfair or deceptive acts or practices, they can be subject to punitive damages.

     If you own a building, particularly a small building (2-3 family unit), take care to ensure that the units are each only paying for their own utilities.  If you cannot make the determination, then prior to renting the unit, adjust the rent to include utilities to avoid any issues with your tenants.

Chapter 142A -- the Home Improvement Contractor Act

     Massachusetts requires contractors who perform home renovation work not only to have a Construction Supervisor License, but also require him or her to have a Home Improvement Contractor Registration under Chapter 142A.  The Home Improvement Contractor registration is only required for contractors who do renovation work -- additions, renovations, demolitions -- changes to the existing structure.  It does not apply to new construction work.

     If you knock down your home and build a whole new one, you do not get the benefit of Chapter 142A.

    Why does this matter?  Chapter 142A provides for a guaranty fund that reimburses homeowners up to $10,000 when they succeed on a claim against their contractor.  Further, a violation of Chapter 142A is an automatic unfair or deceptive act or practice under our consumer protection statute, Chapter 93A.  If your construction work does not fall under Chapter 142A, you can still have a Chapter 93A claim, it is just not automatic.

     And why does Chapter 93A matter?  Chapter 93A is a fee shifting statute.  In other words, a plaintiff successful under Chapter 93A is entitled to an award of attorney's fees to be paid by the contractor.  If the contractor's unfair or deceptive acts or practices are knowing or willful, then the court can award double or treble damages.

     For example, a contractor who violates the building code, while doing renovation work has violated Chapter 142A and therefore the consumer protection act.  For new construction, this connection is not automatic.

     If you run into a problem while your doing construction work, be certain to look at Chapter 142A and see if it applies to your construction work.  

How to Evict Someone Who Pays no Rent

   When you read this title, it may make no sense -- who would rent to someone and not charge them rent?  Our office has run into this situation in a number of ways most of them involve family relationships or romantic relationships which have turned sour.  The individual usually has resided at the premises for some time.  They are unfortunate in almost every circumstance and most of the time, our office gets called after the owner of the home has tried, unsuccessfully, to get the other person to leave voluntarily.

     Under these circumstances, there are are only a few options to consider.  First, you could claim that the unwanted person is living at the premises as a gratuitous tenant. If you are staying somewhere and are not providing any consideration for your occupancy, then you are not a tenant and you are not entitled to a notice to quit.  Rather, if your host asks you in writing to leave and you refuse, your host can go to Court and immediately start a summary process action (an eviction action) and seek an order to remove you from the premises.

     So what is consideration?  Most often it is money.  But, keep in mind that consideration does not necessarily have to be in the form of rent.  If your guest is helping the household by paying for utilities, or food, those contributions could be considered consideration.  Those actions could be consideration which would make your guest a tenant.  Once someone is a tenant, they are entitled to either three months or one month notice before starting eviction proceedings, depending on how often the consideration is paid.

        Another option is to argue that your guest is a licensee.  A licensee is a “person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”  Restatement of Torts, Second § 330.  The key to this argument is that the owner of the Property retains legal possession, custody and care of the whole house and of every room.  In other words, this argument works best when a guest is using one particular room in the home, but does not have exclusive access to it.  For example, if someone comes and stays in your guest room, but you enter the room regularly to empty the trash, change the sheets, vacuum or even to get things out of the closet, then your guest does not have exclusive access to the room.  Further, the guest must not be making any financial or other contribution to the operation of the home.  As with a gratuitous tenant, a licensee is not entitled to a formal notice to quit, but rather just a letter asking him or her to leave. 

     Trying to evict without notice comes with risks.  If your guest is not a gratuitous tenant or a licensee, but is a tenant and you have not sent a proper notice to quit, then you will lose your eviction case and have to start all over by providing notice.  You should tread carefully and understand the risks of not providing a formal notice to quit.

     The most conservative, but most time consuming process is to send a formal notice to quit.  If your guest is providing some sort of consideration, like paying the utility bills every month, then you can provide a 30 day notice to quit.  However, if the consideration is not paid as regularly or if you want to argue gratuitous tenancy or licensee and don't want to concede that there is consideration, then you should serve a 3 month notice to quit.  Why you may ask?  The statute provides that you can serve a notice to quit in the interval in which rent is paid or 3 months.

     Whenever you are an owner and need someone to move out, its always best to consult with a lawyer who can help you figure out the proper process and ask you other questions about your possible risk for counterclaims before you start any proceedings.