All tenants have a right to a decent, safe, and sanitary place to live. In Massachusetts, there are primarily four sources of law that give tenants this right:
- The state Sanitary Code,
- Local health ordinances,
warranty of habitability, and
- The law of
1. State Sanitary Code
In Massachusetts, the state Sanitary Code is the primary source of law that gives tenants a right to decent housing.1 The purpose of the state Sanitary Code is to protect people's health, safety, and well-being.2 It sets the minimum legal standards that all landlords must meet, and it applies to you whether you have a lease or not. For example, all rental housing must have heat, hot water, and electricity. Kitchens and bathrooms must have sinks with running water. Doors and windows must have locks.
The Housing Code Checklist (Booklet 2) outlines the main parts of the state Sanitary Code. It will tell you which violations a landlord must repair within 24 hours of being notified by the Board of Health, which violations must be repaired by the landlord within 5 days of being notified, and which violations must be repaired by the landlord within 30 days of being notified by the Board.
If you need to know exactly what the state Sanitary Code says, key portions of it are reprinted in the Laws section at the end of this book.
- The minimum standards for housing are online.
- Regulations for lead poisoning prevention and control are online.
- The entire state Sanitary Code is online. See Public Health Regulations.
The Sanitary Code can also be purchased in person by going to:
- State House Bookstore, State House
Room 116, Boston, MA 02133
- Western Office of the Secretary of the Commonwealth
436 Dwight St., Springfield, MA 01103
- Southeastern Office of the Secretary of the Commonwealth
218 South Main St., Suite 206
Fall River, MA 02721
While most problems that tenants face are covered in the state Sanitary Code, there are a number of other state codes in Massachusetts that affect residential property.3 These codes are more complex and detailed than the state Sanitary Code, and in many cases cover the same material.
2. Local Health Ordinances
Cities and towns have the right to pass local health ordinances that are stricter than the state Sanitary Code.4 For example, in some cities and towns, local health ordinances require landlords to obtain a certificate of occupancy from a local Board of Health before renting. The reason for this requirement is to make sure that rental housing is safe. If a city or town requires a certificate of occupancy and a landlord has not obtained one, the landlord is in violation of both the local health ordinance and the state Sanitary Code. If a landlord rents an apartment without getting a certificate of occupancy where it is required, she may be prohibited by a court from collecting rent that a tenant withholds for conditions that violate the state Sanitary Code.5
Local health ordinances apply to tenants with leases and tenants without leases.
3. Warranty of Habitability
Like businesses which must guarantee the safety of products they sell, landlords in the business of renting property must guarantee that the apartments they rent are safe and habitable. This is called a warranty of habitability.6 Basically, this warranty recognizes that in return for your promise to pay rent, your landlord promises to keep your apartment in good condition.
The warranty of habitability applies whether you have a written lease or not. It is a right your landlord cannot ignore or take away from you.7 For example, it is illegal for a landlord to put a clause in your lease that denies you a warranty of habitability or that states that you are responsible for making all repairs.8 Also, a landlord cannot claim that she lowered the rent you were charged because of the bad conditions.9
A landlord violates the warranty of habitability from the time she has knowledge of conditions that may endanger or impair your health, safety, or well-being.10 When a landlord breaches the warranty of habitability, you have several options. You may be able to withhold your rent or deduct the cost of repairs from your rent. You can go to court and ask a judge to order your landlord to make repairs and reduce your rent until repairs are made. You can choose to cancel your lease or rental agreement and move out. You can go to court and ask a judge to cancel your lease or rental agreement and give you a full or partial refund of the rent money you have already paid.11 For more about your options, see the section in this chapter called Options If Your Landlord Refuses to Make Repairs.
Where a tenant claims that a landlord has breached the warranty of habitability, the courts have established a formula to calculate the damages. This amount is called the fair rental value. It is the value of your apartment with all its problems and code violations.12 Not every violation of the state Sanitary Code, however, violates the warranty of habitability.
4. The Law of Quiet Enjoyment
Some conditions are so serious, such as no water or heat, that they may violate a state law that gives tenants a right to quiet enjoyment—the right to be free from unreasonable interference with the use of your home.13
Under the right to quiet enjoyment law, if a landlord is in violation, you may sue her for money damages, which is your actual damages or 3 times your rent, whichever is more.14 A judge may also fine the landlord between $25-$300 per violation and put the landlord in jail for up to 6 months. For more information about your rights under this law, see When to Take Your Landlord to Court - Breach of Quiet Enjoyment.
1 . The state Sanitary Code is a regulation that applies to the whole state. It has two chapters: Chapter I: General Administrative Procedures, and Chapter II: Minimum Standards of Fitness for Human Habitation. The Massachusetts Department of Public Health, the state agency which is responsible for enforcing the state Sanitary Code, may from time to time change or amend these regulations. Chapter I is printed in 105 C.M.R. §400.000; Chapter II is printed in 105 C.M.R. §410.000.
3 . See Building Code (780 C.M.R.), Mass. Comprehensive Fire Safety Code (527 C.M.R. §1.00), Electrical Code (527 C.M.R. §12.00), Plumbing Code (248 C.M.R.), Lead Poisoning Prevention and Control (105 C.M.R. §460.000), and cross metering of utilities (220 C.M.R. 29.00). All of these codes are available from the State House Bookstore and online at: //www.mass.gov/courts/case-legal-res/law-lib/laws-by-source/cmr.
4 . 105 C.M.R. §400.015. Some cities/towns with local laws are: Boston, Chelsea, Malden, Scituate, and Weymouth. To find out if your city or town has a local law you can (1) call the Board of Health or (2) check the city/town's website (under the clerk's office or the board of health).
5 . See Coder v. Lauer, Gloucester District Court, 870236 (D'Avolio, J.)(1987), where court found that a rental agreement made without the benefit of a certificate of occupancy was illegal. The landlord was precluded from recovering rent which had been withheld by the tenant.
10 . 105 C.M.R. §410.750 sets out the conditions that may endanger or impair the health, safety, or well-being of tenants. Any violation not included in this list has the potential to fall within this category, given the specific conditions.
11 . Boston Housing Auth. v. Hemingway, 363 Mass. 184, 200-01 (1973). If a tenant goes to court, a judge will use several factors to decide whether the lease should be rescinded. These factors include: (1) the seriousness of the defective conditions and the effect on the habitability of the residence; (2) how long a tenant has had to live with the defective conditions; (3) whether or not the defects could be fixed within a reasonable amount of time; and (4) whether or not the tenant is responsible for the defective conditions.
12 . Cruz Mgmt. Co. v. Wideman, 417 Mass. 771, 775 (1994); Darmetko v. Boston Housing Auth., 378 Mass. 758 (1979); McKenna v. Begin, 5 Mass. App. Ct. 304 (1977). Specifically, a judge computes damages by determining what major code violations there are in your apartment, the time period each violation existed, and the percentage by which your use and enjoyment of the apartment has been diminished by the existence of these violations; and then totaling those numbers to reach the amount of money the landlord owes you. See McKenna v. Begin, 5 Mass. App. Ct. 304 (1977). Tenants with subsidies are entitled to damages calculated on the basis of the full contract rent, not just the tenant's portion of the rent. Cruz Mgmt. Co. v. Wideman, 417 Mass. 771, 774-775 (1994).
14 . G.L. c. 186, §14; Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124 (1959); Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453 (2007) (providing that actual and consequential damages can include emotional distress). In order for you to recover under G.L. c. 186, §14, the landlord does not have to intentionally try to disturb you; it is her conduct and not her intentions that is controlling. Blackett v. Olanoff, 371 Mass. 714 (1977). For example, the fact that an owner failed to provide heat because she could not afford to buy heating oil does not diminish the tenant's right to recover for the loss of "quiet enjoyment" that occurred during the time the apartment was unheated. Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982).