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.

Help us, help you

We get many calls a week at our office from potential clients.  We want to help you, either by representing you, or at least by pointing you in the correct direction.  Here are some suggestions to make the most out of your call with us.

• If your claim involves a contract or a lease, please read the lease before you call and understand what it says about your issue.  For example, if you want to terminate a lease or a contract, read it.  What does it say about ending the contract?

• Please tell us what, if anything, you have received from the other side.  We encourage you to call as soon as you receive something from the other party -- a letter, a lawsuit, a notice or whatever else it is.  Most of the time, there are deadlines associated with whatever was sent to you.  The more time we have to respond, the more likely we are to be able to take your case.

• Please be prepared to send us your contract, lease, notice, letter or lawsuit by fax or email or at least have the docket number available for us.

• As soon as you realize there might be an issue, document everything.  Confirm telephone calls in writing and make notes of your interactions with the other side.  You must build your case.  He said - she said cases are difficult, so amass your proof while the problem is going on, rather than having to go backwards.

• If you are a tenant and you have a problem with a condition in your unit, please call your city or town Health Department or Inspection Services Department to visit your unit.  We generally require that your problems have been documented by a city or town official before we will take your case.

• We are not a pro bono legal services agency.  We do charge for our services.  We take some cases on an hourly basis (we charge hourly for our work) and some cases on a contingent fee basis (we take a percentage of what we win).  How we take any given cases depends on a number of factors and the type of engagement is determined on a case-by-case basis.  

• If your claim is less than $7,000 in value, do consider taking your case to small claims court, particularly when you cannot recover your attorney's fees.  Even if your claim is slightly more than the small claims limit, it may be worth considering small claims if you have no ability to recover attorney's fees.

• The website Mass. Legal Help  has many resources available for pro bono parties.

Help, my heat is not working!

     It has been bitterly cold in Massachusetts this week.  If your heat is not working properly and you are a tenant or a landlord, here are some things you need to know.

• Unless the tenant is providing the fuel for heat, the landlord is required to provide heat between September 15 and June 15 each year.  During that time, the temperature between 7:00 am and 11:00 pm must be between 68 and 78 degrees Fahrenheit.  From 11:01 pm until 6:59 am, the temperature must be at least 64 degrees Fahrenheit (and still cannot exceed 78 degrees).

• You dont have to be completely without heat to call the town or city about it.  If your unit never gets above 66, you should call and document the issue..

• A landlord is responsible for maintaining the heating system in good operating condition.  This is not something that can be shifted to the tenant.

• If a tenant does not have heat, let the landlord know immediately.  It is fine to notify by phone, but follow up with an email or hand written note and keep a copy.  

• If you are a landlord, keep your tenant apprised of the timeline and events.  Treat the tenant as you would want to be treated if it was your house with no heat.

• If the landlord is not responsive, call your town or city board of health or inspectional services who will conduct an inspection and document the issue.  If it is after hours, you can try and call the non-emergency line of your local police.  They might be able to help.  If your heat was out previously, call again and ask for a reinspection.  Lack of heat is considered a condition that endangers or impairs safety.  Ask the city or town about emergency relief.

• Particularly where the weather is so cold, it is not inappropriate to ask the landlord for space heaters until the heat is fixed.  If the heat is going to be out for sometime, you may ask the landlord pay for a hotel or alternative housing.

• Ultimately, if your heat is not working properly, but your landlord will not pay for you to stay in a hotel, and bunking with friends or family is not an option, you have few choices.  My recommendation is to make the decision to stay or go that you need to make for you and your family's health, safety and welfare.  There may be legal implications and you may have a case, but be safe first and foremost.

Stay warm and safe out there.