Landlord's Obligations to Disclose Lead-Based Paint in Units

     It seems that in the Boston area, many if not most leases turn over between June 1 and September 1.  As landlords seeks to find new renters and tenants seek to find new places to live, keep in mind that federal law requires landlords who own a building constructed prior to 1978 must disclose to prospective tenants available information regarding the presence of lead-based paint and lead-based paint hazards in the housing.   The failure to do so can result in penalties from both the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD).

    Landlords should keep the following in mind:  The disclosure applies to nearly all housing constructed prior to 1978.  Exceptions apply where: (1) a certified inspector has found the property to be lead-based paint free; (2) the rental is for less than 100 days with no ability to extend the rental period; or (3) the lease is a renewal and the landlord has already complied with the disclosure and there is no new information.  There are also exceptions for housing for the elderly and disabled, but only if no children under six resides at the unit.  If you believe you are exempt from these regulations, check with an attorney before deciding that you don't have to provide the necessary paperwork. 

     The disclosures are not onerous.  Landlords or property managers must provide the prospective tenant with a copy of the EPA pamphlet entitled, “Protect Your Family from Lead in Your Home”  or provide an EPA-approved equivalent.  The landlord must disclose to the tenant the presence of any known lead based paint and/or lead based paint hazards in the unit and associated common areas, and disclose “any additional information available” about these conditions, such as the location of the paint and the condition of surfaces.  Landlords also must provide the tenant with “any records or reports available” concerning paint hazards applicable to the building, including other units and the common areas.

    The landlord will need to get the tenant to sign a Lead Warning Statement, such as the one in the preamble to the Lead Disclosure Rule.  Landlords must retain a copy of the signed document for three years; however, the statute of limitations for enforcement is five years,  so landlords are well advised to keep their paperwork for at least that time period.
 

Finding a Good Landlord

I've written and given talks about how a landlord can find a good tenant, but after reading Boston Magazine's article "Lord of the Sties" last week, I began to think about how a tenant can find good landlord.  It is more difficult for a tenant to research a landlord, because violations from Inspectional Services or the local Health Department are not generally available online.  Here are some questions to ask and some research to undertake.

First, when you look at the apartment, pay close attention to the condition of the common areas as well as the apartment.  Look up at the ceiling -- do you see water stains?  Look at the floor -- is it cracked?  Is there a lot of dirt and garbage accumulated in the corner?  If there is laundry in the building, what does the area look like?  Are there water stains in the basement?

Second, ask questions.  Ask whoever shows you the apartment.  If you see anyone in the hallway, ask whether they like living in the building.  Ask about the landlord.  Ask why the tenant moved out.  Maybe you will get a real answer, maybe not, but you certainly won't know if you don't ask.

Third, if you can go back to the building without the manager or real estate agent, do so.  Because of building security, this may not be possible, but if you are looking in the spring or summer maybe you can find some people leaving the building and, without stalking them, ask some questions.

Fourth, research your landlord.  Find out his or her name and Google that person.  If you have time, go to the Inspectional Services Department or Health Department for the city or town in which the apartment is located and ask to see records for that building.  Anytime there is a violation of the Sanitary Code, the inspectors are supposed to write up the violation.  These records are public record, they just are not online. Further, a town inspector probably knows which landlords are better and which are worse, particularly if you are dealing with a smaller city or town.  Court records may not be as helpful because there are generally claims and counterclaims between landlord and tenant and unless you review the entire file, it may be difficult to determine whether there really are condition issues.

Finally, go with your gut.  If you have a bad feeling about the apartment, then don't rent it, no matter how good a deal it might be.

The Most Common Question - Landlords

Recently, a dear friend of mine asked me what the most common substantive legal question is that I am asked as a lawyer? Since I practice in several different areas, I'd have to answer that question, by category of practice area.

In the landlord/tenant realm, the most common question I am asked by landlords is "How do I evict that tenant?  The actual process of evicting a tenant is set out in Chapter 186.  In short, you have to deliver a Notice to Quit, give the tenant a certain amount of notice -- generally either 14 or 30 days -- depending on the reason -- and then, if the tenant does not move out, you commence a summary process action.  However, in that relatively simple scheme lie many pitfalls for landlords.  A tenant may assert counterclaims against the landlord, even if the tenant is behind on the rent.  The timing of each of the steps is particular and documents must be filed with the Court on certain days.  A misstep can result in dismissal of your summary process and then you have to start all over again.

Before commencing the process to evict a tenant, I ask my landlord clients a series of questions to make an initial assessment as to how easy or difficult it will be to evict the tenant.  For example, if the landlord took a security deposit, but failed to handle it properly, the tenant can counterclaim and may receive three times the security deposit, plus attorney's fees.  If the tenant was withholding rent because of problems with conditions at the unit, that issue needs to be explored.  If the landlord was aware of bad conditions at the unit and did not correct them, the Court could find the landlord in breach of the warranty of habitability or the covenant of quiet enjoyment.  If the landlord started to evict the tenant after the landlord was aware of the tenant's complaints, then the landlord may have engaged in retaliatory behavior which also subjects the landlord to damages.

Ultimately, if you end up owing the tenant more money than what the tenant owes you, not only do you have to pay the tenant, but the tenant keeps possession of the apartment.  Before taking any steps to evict a tenant, every landlord should seek professional advice.

93A and Building Code Violations

Last week, the SJC ruled on the Klairmont v. Gainsboro Restaurant case and decided for the first time that a violation of the building code can, in some circumstances, constitute a violation of Chapter 93A.

The case involved the death of a Northeastern University college student in 2007.  He had left the defendant bar to take a call on his cell phone and ducked into the stairwell of the basement of the bar. There, with no door to the basement and no landing, he tumbled backwards down the stairs and later died from his injuries.  The decedent's parents brought suit against the bar on claims of wrongful death and violations of Chapter 93A.  The bar had never obtained a  building permit for the work it performed on the basement stairs.

Affirming the superior court decision, the SJC found that the building code violations did, in this instance constitute a violation of 940 CMR 3:16.  Had the bar obtained a building permit, the bar would have been required to install a door at the top of the stairs, rather than using the vinyl strips it had in place, a landing would have been required and handrails and lighting would also have been installed.  In short, had a permit been obtained the building code followed, it is likely the decedent would not have been been able to access the basement, let alone fall down a flight of stairs.

What makes this case important in the realm of home improvement contractor law is that to date, neither the SJC, nor the Appeals Court has found that a violation of the building code, by itself constitutes a 93A violation.  Those Courts have upheld numerous decisions under Chapter 142A, the home improvement contractor statute.  However, Chapter 142A only applies to home renovation projects and does not apply to new construction.

There is still a disconnect between Chapter 142A for renovations and new construction.  For renovations, a violation of the building code is a per se unfair or deceptive act or practice.  For new construction, even after this case, 93A liability is not automatic.

Are you violating the law with short term rentals?

In my last post, I discussed the benefits and worries of a short term rental from a private owner.  I've been following the story about a New Yorker who participated in AirBnB's program of short term rental and found himself on the wrong side of the law.  Now, AirBnB says it will fight the New York law that got Nigel Warren into hot water.  If you are a someone who does vacation rentals, you need to pay attention to the local ordinances in your town or city, as well as condominium regulations or homeowner association rules.  I recently litigated a case where the landlord was renting to guests on a short term basis until the condominium association informed him that the practice was in violation of the condominium rules.  Some cities and towns require that the owner register the property as one which will be rented out.  For example, Falmouth, Massachusetts requires homeowners to obtain a permit from the health department before renting out their dwelling.  You do not want to run afoul of a local law and find yourself fined or worse, criminally charged simply because you were trying to cover the cost of that second mortgage.

The Dangers of Not Doing Your Homework When Hiring a Home Improvement Contractor

Kyle Buckminster of South Grafton was recently ordered to pay $111,000 in restitution, along with $35,000 in civil penalties, and $12,600 in fees based upon four consumer complaints to the Office of Consumer Affairs and Business Regulations ("OCABR") by consumers who complained that Buckminster failed to comply with home improvement contracts and failed to finish the work contracted.  Buckminster's home improvement contractor license was revoked nearly 13 years ago, according to Attorney General Martha Coakley.  Buckminster allegedly operated under numerous business names throughout the last several years.

When hiring a home improvement contractor a homeowner should be sure to do his or her homework regarding the qualifications and reputation of the contractor, including checking that the contractor holds the necessary licenses in Massachusetts.  In Massachusetts, home improvement contractors are required to register with OCABR.  A searchable database of all registered home improvement contractors is located here and gives valuable information on whether any complaints have ever been filed against the contractor.

The fate of the homeowners damaged by Buckminster may have been different if they had done a simple search on OCABR's database.  We recommend that if you are checking out a contractor, don't just search on the registration number the contractor gives you.  Unfortunately, we are aware of instances where contractors have had judgments against them and been able to obtain a new number.  Make sure you search on both the name and number.  The database can be searched by the home improvement contractor number or the name of the contractor.  When searching on a contractor, the owner's name should also be searchable with the OCABR.  If your contractor is missing from this database or has a license listed as revoked or lapsed, then proceed with caution.  Quick, easy homework can save you a long, arduous journey later.

Short Term Rentals

When going on vacation this summer, some of us will rent houses, condominiums or apartments for a short period of time -- perhaps a week or two -- instead of a hotel room.  Personally, I love renting a place with a kitchen.  It gives my family the opportunity to eat breakfast without wasting time or money on a restaurant.  At night, if we are too tired to go out or the kids are cranky, we just order a pizza or find the local supermarket and pick up a roasted chicken.

However. if something goes wrong while you are renting, you can't just call the font desk.  So here are some things to consider.  First and foremost -- do your homework.  Check a variety of home rental websites for reviews and comments, like www.homeaway.com  and www.vrbo.com  If you can get the owner's name before committing, google them.  If you are going to an unfamiliar area, learn what you can about the neighborhood.  Unfortunately, in some cities, one city block is safe and the next is not.  Next, be clear on what is being provided and what is not.  Find out if you have to bring your own towels or sheets and whether the kitchen comes stocked with any condiments.  Make sure you know the procedure to deal with any problems that might arise be it minor -- a clogged drain -- to major -- the power goes out.  If possible, pay on a credit card, so you have some possible remedy to complain about the charge if you really feel like you did not get what you bargained for.  On that front, if you arrive and the place is not as portrayed, complain immediately and follow up in writing (email is fine).  If ultimately, you end up going to court, the judge is not going to think highly of your complaints if you stayed somewhere for two weeks, without raising a single issue and then you go home and decide to complain.  Be respectful of the property at which you are staying.  Turn off lights when not in use and if you break something, let the owner know.  I think that most of the owners that rent their homes to cover their expenses and may earn a little extra cash.  They want you to be pleased because today more than ever, word of mouth if key. 

Finally, rentals of less than 100 days are not covered by the landlord tenant laws in Massachusetts, so don't expect protection of your security deposit and the like.