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Enforcing Your Rights Under the Lead Law

Produced by Jeffrey Feuer and Benjamin Hiller
Reviewed May 2017

1. Retaliation Is Illegal

A property owner may not evict you, or increase your rent, or refuse to renew your lease in retaliation for your reporting a suspected lead paint violation to your landlord or to an agency such as CLPPP or your local Board of Health.

If the landlord tries to evict you or get back at you in any way within 6 months after you have complained in writing about lead paint, a court can automatically find that your landlord has acted in retaliation against you—unless the landlord can show clear evidence that she had other reasons for taking the action in question that were not related to the lead paint violations. A court will generally rule that it is not retaliation if a landlord is evicting you for failing to pay your rent (unless you are claiming that you have withheld your rent because of Sanitary Code violations).

Landlords who threaten or attempt to take retaliatory actions against tenants for exercising their rights under the Lead Law can be held liable for damages of up to 3 months' rent.45 For more information about retaliation, see Chapter 12: Evictions - Retaliatory Evictions and Chapter 13: When to Take Your Landlord to Court - Retaliation. If you believe that the landlord has retaliated against you because you have complained about Lead Law violations, you may also file a complaint for discrimination. For more information, see Chapter 7: Discrimination.

2. Rent Withholding

Tenants have a basic obligation to pay rent to the landlord for their home or apartment. But, if your landlord is not taking the proper steps to delead your home after she has been notified in writing that there are illegal lead hazards, you may have a right to hold back your rent payments under certain circumstances.46 You may take this step only if you are up to date with your rent payments at the time you notified the property owner in writing about the lead paint violations.

Because landlords have the right to go to court to evict tenants for not paying rent, you should not withhold rent without first talking with a lawyer. To fully protect yourself against an attempted eviction, you should put any rent that you withhold because of Lead Law violations into a separate bank account and notify the landlord in writing why you are withholding your rent. Make sure you keep a copy of this letter.

If a tenant withholds rent due to lead paint violations and the landlord is required to fix those violations, a judge, unless he finds that the landlord did not act in good faith, can order that any amounts that would be awarded to the tenant because the value of the housing was reduced by the violation of the Lead Law be applied to the costs of the lead repairs.47

You may also have a right to use your rent money to have the Lead Law violations repaired (instead of paying that money to your landlord), to file a tenant petition in court to force the landlord to repair the lead hazards and pay you money for failing to do so, or to file a criminal complaint against your landlord because of the Lead Law violations.48 Before you take any of these steps, you should consult with an attorney. You can read more about these options in Chapter 8: Getting Repairs Made.

Compensation for Loss or Injury

Your landlord always has a duty to provide housing that is decent and safe for you to live in. All housing in Massachusetts must meet the basic housing standards set out in the state Sanitary Code. If dangerous lead hazards are found in your home in violation of the Lead Law, your landlord has failed to meet her obligations to you and is in violation of the Sanitary Code. In this case, you may be able to get your rent reduced, get back some of the rent that you paid to the landlord in the past, or even get punitive damages of up to 3 months' rent paid to you.49 This can be complicated and it is very important to talk with a lawyer about your options before you negotiate with your landlord, withhold any rent, or take any legal actions.

If you are worried that your child might have been lead poisoned, make sure she is tested. If the tests show that the child has been poisoned, see a doctor as soon as possible to obtain the proper treatment. If your child has been lead poisoned as a result of illegal lead paint in your apartment, you have a right to sue the landlord for the injuries your child has suffered.50 Under the law, your child can file such a case up until her 21st birthday. You should try to find a lawyer who has experience in representing lead-poisoned children and their parents, as these lawsuits can be complex and difficult to pursue. Experienced lawyers will be able to represent you and your children without you paying any fees or costs to the attorney unless and until you win your lawsuit.

A landlord is responsible for all of the injuries a lead-poisoned child may suffer (such as the cost of medical treatments or special education services, learning disabilities, future problems in obtaining or holding a job) as a result of being exposed to lead paint in an apartment owned by the landlord, even if the landlord claims that she did not know there was lead paint in your apartment or that she was not at fault for causing the lead poisoning.51 It is a property owner's responsibility to find the lead paint and remove or cover it any time there is a child under 6 years of age living on her property.52 If she does not do so, she is responsible for the harm that her failure causes to your child. Under some circumstances, the landlord can also be forced to pay you punitive damages for failing to remove the lead paint after being ordered to do so by CLPPP or your local Board of Health. These punitive damages are 3 times the amount of the actual damages that your child has suffered.

The only way for a property owner to protect his tenants and their children, as well as protect himself from being sued, is by fully complying with the Lead Law—informing the tenants of the risks of lead paint and removing the dangerous lead hazards in all rental dwellings. A property owner who has obtained a Letter of Full Compliance with the Lead Law from a licensed lead inspector has significant legal protections against being sued for injuries caused by the lead poisoning of a child.53

Endnotes

45 . G.L. c. 186, §18.

46 . G.L. c. 239, §8A.

47 G.L. c. 111, §198.

48 . Commonwealth v. Racine, 372 Mass. 631, 631 (1977).

49 . G.L. c. 186, §14; G.L. c. 93A. See 940 C.M.R. §3.16(3) (“ Without limiting the scope of any other rule, regulation or statute, an act or practice is a violation of M.G.L. c.93A, § 2 if: … (3) It fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety, or welfare promulgated by the Commonwealth or any political subdivision thereof intended to provide the consumers of this Commonwealth protection”).

50 . G.L. c. 111, §199(a).

51 . Bencosme v. Kokoras, 400 Mass. 40, 41 (1987); Bellemare v. Clermont, 69 Mass. App. Ct. 566, 568-569 (2007).

52 . Massachusetts Rental Housing Ass'n, Inc. v. Lead Poisoning Control Director, 49 Mass. App. Ct. 359, 363 (2000).

53 . G.L. c. 111, §199(a).

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