How Does A Violation of the State Sanitary Code Effect an Eviction Proceeding?


The purpose of this article is to provide an overview of the impact a violation of the State sanitary code has on an eviction proceeding. The article is intended to be a starting point to advise a client, landlord or tenant, how to proceed in an eviction proceeding if such violation exists.

If you represent a landlord, a violation of the state sanitary code may have a significant effect on your eviction proceeding. Depending on the specific violation, conditions which are deemed to endanger or impair the Health and Safety of the occupants will reduce the amount of money the tenant owes to the landlord as rent arrearage. Unless the landlord establishes proof that the tenant created such conditions, the landlord will be liable to the tenant during the duration such condition exist as well as the cost to make such repairs. Keeping accurate, timely records and making timely repairs can minimize the landlord's exposure to such liability.

Where do I Find the State Sanitary Code?

The State Sanitary Code can be found in the Code of Massachusetts Regulation at 105 CMR 400.000 et.seq. and 410.000 et.seq. is available from the Massachusetts Department of Health and Human Services website.

What Does the State Sanitary Code Regulate?

The State Sanitary Code defines minimum standards of fitness for human habitation. The Code establishes minimum requirements for the physical characteristics of a dwelling unit. The Code also provides administrative requirements of conducting inspection, hearings, appeals as well as penalties for non compliance or interference with inspections. A copy of the State Sanitary Code index listing the section and heading is attached to this article.

How and Why Should an Inspection be Conducted on a Dwelling Unit?

If you represent a tenant being evicted with alleged State Sanitary Code violations in their apartment, request that they have an Code inspection conducted. To request an inspection in the City of Worcester, the tenant should contact the Worcester Public Health and Code Enforcement, Code Division at 25 Meade Street Worcester MA 01610, or telephone (508) 799-1198. If violations of the State Sanitary Code exist, a report will be generated by the Code Department and sent to the landlord, usually by certified mail.

The landlord will have a specified number of days to complete such repairs. If the landlord fails to make repairs, the Code Department may file a claim in Housing Court assessing daily fines against the landlord until such repairs are completed. Also, the Code report establishes proof of the condition of the apartment at the time of the inspection and is admissible if certified by the custodian or by the inspector. M.G.L.c. 111, sec. 127E; M.G.L.c. 239, sec.8A. Violations of the State Sanitary Code may be used as a defense by the tenant to offset the rent arrearage owed to the landlord.

If you represent the landlord, and the property is located in Worcester, contact the Lead Paint Division of the Worcester Code Enforcement Division, 25 Meade Street Worcester, MA 01610 or telephone (508) 799-1198. They will conduct an inspection usually within 1-2 weeks of the request. There is a cost associated with this inspection, but it is minimal. Check with the department for the latest fee information.

If there are no violations or violations cited are remedied, the landlord is issued a certificate of fitness. The certificate is valid for 1 year. If during that year the landlord re-rents the apartment, it is suggested that the apartment be re-inspected and the certificate of fitness re-issued prior to the new tenants occupancy. There is no charge for a re-inspection during the one year period. The certificate establishes proof of the condition of the apartment if conducted just prior to the tenant occupation. The certificate of fitness is admissible in Court if certified by the custodian or by the inspector. As a practical note, photographing the apartment and having the tenant sign the photographs just prior to the tenant moving in has the same effect. Photographs are preferred over a video recording since photographs can be quickly scanned whereas a video recording must be viewed in real-time duration.

Not all Violations of the Code have the Same Impact, When Should I Advise my Client tha a Problem Exist Which Requires Immediately Attention.

Any violation of the State Sanitary Code should be remedied immediately. However, the Code enumerates specific condition which, if found to exist in residential premises, shall be deemed conditions which may endanger or impair the health, or safety and well-being of those persons occupying the premises. 105 CMR 410.750 (A)-(P). Paragraph (P) is a catch-all for conditions which, if the landlord has been notified of such violations and fails to timely remedy, may rise to such levels.

If you represent a landlord and any of these conditions exist, advise them to make repairs IMMEDIATELY. As a practical note, have the landlord contact the Code department inspector to advised him/her of the landlord's action to correct the violation within the specified time. Once the violation has been corrected, the landlord should contact the inspector for a re-inspection. The following conditions, if found to exist, are always considered to by serious or major violations:

  1. Failure to provide water(hot and cold) of sufficient quantity, temperature, and pressure.
  2. Failure to provide heat as specified in the Code, or improper use or venting of a space heater or water heater.
  3. Shutoff and/or failure to restore electricity or gas.
  4. Failure to provide the electrical facilities as required by the Code, or the lighting of common area as required.
  5. Failure to provide safe water supply.
  6. Failure to provide a toilet and maintain a sewage disposal system in operable condition.
  7. Obstructing, or failure to provide adequate exists in case of emergency. Obstruction of hallways, passageways, or common areas.
  8. Failure to comply with the security requirement per Code.
  9. Accumulation of garbage, rubbish, filth, etc. which may provide a food source or harborage for rodents, insects or other pests or otherwise contribute to the creation or spread of disease, or cause accident.
  10. Presence of lead-based paint in violation of Department of Public Health requirements.
  11. Roof, foundation, or other structural defects which may expose the occupant to , or the general public to, fire, burns, shock, accident, or other dangers.
  12. Improper installation of, or maintenance of, any electrical plumbing, heating and gas burning facilities.
  13. Presence of asbestos in violation of Department of Public Health Requirements.
  14. Failure to provide a smoke detector.
  15. Any of the following conditions which remain uncorrected for a period of FIVE or more days following the notice to or the knowledge of the owner of said conditions(s):
    1. Lack of kitchen sink of sufficient size, or lack of a stove and oven for any defect which renders either inoperable.
    2. Failure to provide a wash basin and a shower or bathtub or any defect which renders either inoperable.
    3. Any defect in the electrical, plumbing, or heating system which makes such system in violation of generally accepted standards, but does not create an immediate hazard.
    4. Failure to maintain a safe handrail or protective railing.
    5. Failure to eliminate rodents, cockroaches, insects infestations and other pests.
  16. Any other violated not listed above shall be deemed a condition which may endanger or materially impair the health and safety and well-being of an occupant if the owner fails to remedy such condition within the time so ordered by the board of health.

If Violation of State Sanitary Code Exist, How Does This Information Impact my Client?

If you represent a landlord, the impact of a violation of the State Sanitary Code varies depending upon the nature, severity, and duration of the violation. The landlord's case depends upon proof that the tenant caused these conditions, i.e. photographs of the dwelling prior to tenant moving-in, or certified certificate of fitness. Since the tenant has exclusive control of the dwelling, showing that, at the inception of the tenancy, the dwelling was in compliance with the State Sanitary Code, a presumption arises in favor of the landlord that the tenant caused such condition. If the landlord establishes that such condition were caused by the occupants, the tenants are liable to the landlord for the cost to repair such conditions. The problems generally arise in collecting the repair costs from the tenant who caused the violations.

If you represent a tenant, who resides in a dwelling where violation of the State Sanitary Code exist, the impact of such violations may be substantial. If the landlord fails to establish that the violations were caused by the tenants, the tenant may claim:

Breach of the Implied Warranty of Habitability

At a minimum, check to see if on the enumerated conditions of 105 CMR 410.750 (A)-(P) exist. The measure of damages is the difference between the value of the premises as warranted and the value of the premises in its defective condition. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973).

Breach of Quiet Enjoyment

Massachusetts General Laws prohibits landlords from interferring with the quiet enjoyment of any residential premises. M.G.L.ch 186, section 14. There must be a substantial or serious interference with the tenancy. The measure of damages is a fine of not less than $25 or more than $300, or imprisonment of not more that 6 months, actual and consequential damages, or 3 months rent whichever is greater, and the costs of the action, including attorneys fees.

Breach of Consumer Protection

Massachusetts tenants are protected by the regulation of business practices statutes. M.G.L.ch. 93A. As stated in 940 CMR 3:00 Attorney General's Consumer Protection Regulations, Section 3.17 relates specifically to landlord/tenant matters. A breach of the implied warranty of habitability or a willful violation of any provision of M.G.L.ch 186, section 14 amounts to an unfair or deceptive practice. Note that the landlord must be in the "trade" or "commerce" of renting dwelling units. Landlord who lives in a two or three family and rents out the remaining units is not engaged in trade or commerce. The measure of damages if the landlords act is willful or knowing is double and treble the actual damage, plus costs including reasonable attorneys fees.

Repair and Deduct

Where landlord fails to make repairs within the time stated in the statute, tenant may make such repairs and deduct the cost of such repairs from the rent. M.G.L.ch 111, section 127L.

Rent Withholding

Tenant may withhold rent forcing landlord to make repairs. M.G.L.ch.239, section 8A. The tenant should be advised to provide written notice to landlord prior to withholding rent. The tenant must be current with rent payment to obtain protection. The remedy under this statute for the tenant is his/her right to retain possession if the abatement claim exceeds the rent found to be owed. Otherwise, the tenant must cure within 7 days any rent arrearage to the landlord in order to maintain possession.

Retaliation

If a tenant is engaged in a "protected activity" and the landlord within 6 months thereafter sends a notice to quit, except for non-payment, or notice to increase rent, or a notice to substantially change the tenancy, a presumption arises in favor of the tenant that landlord's action is retaliatory. M.G.L.ch 186, section 18. A protected activity includes notifying the landlord in writing of violations of the State Sanitary Code, reporting the landlord to a Code department or other government agency for violation of law, withholding rent because of bad conditions.

The presumption is overcome if the landlord establishes by clear and convincing evidence that their action would have occurred regardless of the tenant's involvement in the protected activity. The measure of damages to the tenants if the landlord's action are found to be retaliatory are not less than one month's rent nor greater than three months' rent or actual damages whichever is greater, plus costs including reasonable attorneys fees.

In Conclusion

Violations of the Sanitary Code may be a defense for a tenant eviction. The landlord can counter this defense by showing that the dwelling was code compliant when the tenant moved-in and by timely responding and repairing any conditions that are not caused by the tenant. The key to a good defense are photographs of the apartment prior to move-in and records of any repairs.