Problems & Resolutions

Repair and Deduct

A tenant may make repairs and deduct up to four months’ rent in any twelve-month period to pay for out-of-pocket repair costs only if the following conditions exist:34

  1. The Inspectional Services Department, the local Board of Health or a court of law certifies that the condition of the premises violates the State Sanitary Code or other applicable laws, and may endanger or materially impair the health, safety, or well-being of the tenant, or

  2. The owner or his agent has:
    a) been notified in writing of the violations,
    b) failed to begin all necessary repairs or to enter into a written contract for such repairs within five days of the written notice, and
    c) failed to substantially complete all such repairs within 14 days of such notice (unless an agency or court has ordered that the violations be corrected in a shorter period).

A tenant may utilize the repair and deduct remedy only if the conditions were not caused by either the tenant, a person in his household, or by a guest of the tenant. This assumes that the owner has not been denied reasonable access to the unit to make necessary repairs.

If repairs are not made in a timely manner, as an alternative, the tenant may treat the rental agreement as terminated and vacate the unit. This is called “constructive eviction”. Ultimately, only a judge can determine whether a tenant is justified in taking such a drastic step.

Implied Warranty of Habitability

A landlord is required to guarantee that the apartment he rents out is free of material defects. If an apartment has material defects that were not caused by the tenant, and such defects are not the result of ordinary wear and tear, a tenant may be entitled to an abatement (or reduction) of rent.

If the violation existed at the beginning of the tenancy, the amount of the abatement is calculated by determining the diminution in the value of the apartment during the period of time the violation existed. If it arose later, then it is calculated from the time that the landlord had knowledge of the defective condition (or should have known of the violation) until such time as the condition is corrected.35

Usually a judge needs to make this decision during the course of a lawsuit initiated by the tenant or as a defense to a non-payment eviction case.

It is advisable to get legal advice before deducting rent.

Consumer Protection Act

A landlord’s failure to correct code violations may also be a violation of the Consumer Protection Act, which forbids unfair or deceptive practices in the conduct of any trade or business. This act allows the recovery of double or triple damages as well as attorneys’ fees if the tenant can show that the landlord acted willfully or knowingly or refused to settle in good faith.36

Retaliation

If a landlord tries to evict a tenant for a reason other than non-payment of rent within six months after a tenant engaged in a “protected activity” such as reporting the landlord to a government agency for violation of the law (such as code violations) or joining a tenants’ organization, the court will presume that the eviction is being done “in retaliation”.

A tenant claiming retaliation can also sue a landlord for one to three months’ rent plus attorneys’ fees. The landlord has the right to try to prove to the court that the eviction is not retaliatory but is being done for some other legitimate purpose.38

Overcrowding

A landlord may refuse to establish a tenancy that violates the State Sanitary Code, which regulates the number of tenants allowed per square foot. A dwelling unit must contain at least 150 square feet for the first occupant and at least 100 square feet for each additional occupant. Each bedroom used by one occupant must contain 70 square feet of floor space and for more than one person each bedroom must contain at least 50 square feet for each occupant.39

Lead Paint

Lead is a toxic material that was used in most interior and exterior house paints until 1978. As the paint ages, it disintegrates into toxic chips or dust that can be breathed in as it mixes with the air. Children are at the greatest risk of poisoning although adults can be affected as well. Depending upon the amount ingested, lead poisoning can cause conditions that may vary from behavioral problems and learning deficiencies to mental retardation and death.

Lead was banned from being used in house paint on January 1st, 1978. Unfortunately, most of the local housing stock was built prior to this, so many residential properties have lead paint problems. State Law requires a landlord to remove lead paint or make it inaccessible in any residence where a child under six years of age resides.

Even if a landlord knows that his building has lead paint, it is illegal for him to refuse to rent to a tenant who has young children.40 For address-specific information about lead hazards in housing located in Boston, see the HUD website.
www.leadsafehomes.info

Testing for Lead

Children who reside in older apartments where the presence of lead is suspected should be tested by a health care professional for possible levels of lead in the blood. The Boston Childhood Lead Poisoning Prevention Program can supply free lead testing of Boston apartments, if they are occupied by children under six years of age. They also provide medical follow-up of children with elevated blood lead levels as well as information about lead poisoning and lead paint removal.
Boston Childhood Lead Poisoning Prevention Program

Programs for Lead Paint Removal

There are governmental programs for making privately owned residential units and homes lead safe:

  1. The Boston Home Center’s Lead Safe Boston program offers forgivable loans for single, multi-family, and investor-owned properties. Eligibility is based on income and household size and can provide up to $8,500 in funds per unit de-leaded. For more information or to obtain an application for assistance, contact the City of Boston Department of Neighborhood Development’s Lead Safe Boston program at 617-635-0190.

  2. There is also a Lead Safe program available through MHFA (“Get the Lead Out”) that offers low-interest loans for investor-owned properties, assistance for 1-4 unit properties, and 0%-interest deferred payment loans for owner-occupied properties. Eligibility is also based on income and household size. It is recommended that funding be obtained through the City of Boston’s program and the MHFA financing be tapped for project costs that extend beyond program limits. For more information, inquire with a Lead Safe Boston Project Manager.
    Get the Lead Out Information

  3. The Commonwealth of Massachusetts allows a $1,500 income tax credit per unit to tenants or property owners who pay to have lead paint removed. Information on this program can be obtained by calling the Massachusetts Department of Revenue at 617-887-6367.
    Lead Paint Removal Credit

  4. De-leading training is being offered to Boston property owners by the Boston Childhood Lead Poisoning Prevention Program. Moderate risk de-leading is a new method of safely reducing lead hazards in your home. Learn how to bring your home into compliance with the Massachusetts lead law by calling 617-530-5966
    Childhood Lead Poisoning Prevention Information

Lockouts

It is illegal for a landlord to lock out the tenant, move possessions out of the unit, shut off utilities or otherwise interfere with the tenant’s use of the unit without a court order. Illegal utility shut-off and lockouts are crimes punishable by imprisonment up to six months or fines of $25-$300.47

If the landlord has taken any of these actions the tenant should inform the police of the situation. Often, police involvement will settle the dispute. If not, the tenant should go to Housing Court and get a “temporary restraining order” (TRO). A TRO will order the landlord to refrain from these illegal activities and re-admit the tenant to the unit.

The Nuisance Statute

Under the Nuisance Statute, also known as the Drug Law, a tenancy agreement can be rendered null and void if a tenant uses or allows his unit to be used for the following illegal acts:

  1. Prostitution,

  2. Lewdness,

  3. Illegal gambling,

  4. The keeping or sale of alcoholic beverages,

  5. Habitually serving alcoholic beverages to persons who are intoxicated or who the tenant knows will drive while intoxicated,

  6. The keeping, sale or manufacture of controlled substances,

  7. Illegal possession or keeping of a weapon, and

  8. Use of an explosive or incendiary device.

The Nuisance Law can also be invoked if a tenant or household member of a housing authority, federal or state-assisted housing unit uses force or violence against agents who are legally on the premises of such property.

If a landlord knowingly allows any of the above activities to take place and fails to take all reasonable measures to evict the tenants at fault, he can be subject to a fine of up to $1000 or a jail term of up to one year or both.

Under the Nuisance Law, a landlord can go directly to district, superior or housing court to seek an immediate eviction by summary judgment. The landlord would have to provide a copy of the police report alleging the illegal activity or a letter stating that the property could be subject to forfeiture due to illegal activity. A statement attesting that a drug analysis is being taken or that a positive test was performed is necessary in cases involving an allegation of illegal drug activity.48

35. BHA v. Hemingway 363 Mass.184, 293 N.E. 2d 831 (1973)
36. G.L. c. 93A

38. G.L. c. 239, §2A
39. 105 C.M.R. 410.400
40. G.L. c. 151B, §4
47. G.L. c. 186, §14
48. G.L. c.139, §19