June Notes from the Legal Hotline: Landlord

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Q. ​What changes were recently made to the Sanitary Code?

A.​Following several delays, amendments to the Sanitary Code became effective on May 12, 2023. The tracked changes version of the new Code may be viewed here.While many of these changes are relatively minor in scope, REALTORS® working in the rental sphere will want to take particular note of the following amendments:

  • Landlords will need to provide 48-hours’ notice to tenants prior to accessing the property to effectuate compliance with the Code (in non-emergency situations). This notice requirement does not extend to access for other non-Code–related purposes, such as real estate showings, which should be addressed in a lease agreement.
  • Landlords must now provide (and maintain) a refrigerator and freezer unless the written lease agreement requires the tenant to supply those appliances.
  • Kitchen walls above the countertops must have a non-absorbent and easy-to-clean surface that extends at least 24 inches above the countertop, where possible.
  • The heating season has been shortened to September 15 through May 31, although local Boards of Health may further shorten the season.
  • Tenants required to pay for electricity through their written lease agreements must be provided access to their dwelling unit’s electrical distribution panel at all times.
  • Landlords must provide tenants with a Notice provided by the Department of Public Health informing them of their legal rights and responsibilities. Alternatively, the Notice may be posted in a readily visible location, such as next to the mailboxes.
  • Screens must be installed on all operable windows from April 1 through October 31.
  • Prior to each tenancy, landlords must inspect the property for pests. This may be a visual inspection completed by the landlord with appropriate documentation.
  • Landlord of multi-unit dwellings must provide receptacles for garbage and arrange for its collection.

Specific questions related to implementation of and compliance with these requirements should be directed to private counsel.

Q. ​How should an agent handle an inquiry for a rental property that has an unknown lead status?

A.​With some of the oldest housing stock in the country, it is no surprise that there are a significant number of properties in the Commonwealth that have not been tested for lead. A property’s lead status cannot be used as a basis for denying a rental application from an otherwise qualified tenant with a child under the age of six. Additionally, landlords who fail to provide a lead-safe living environment may be found strictly liable in the event a child becomes lead poisoned while residing in that property.

​All prospective tenants should be received and processed in a uniform manner. A prospective tenant inquiring about the property’s lead status in an initial inquiry should be invited to view the property and submit an application if they are interested. If their application is accepted, the landlord should have the property tested and may delay the tenancy for up to 30 days to bring the property into lead compliance, if necessary. The burden of testing and bringing a property into compliance should not be placed on the tenant.

​MAR has received reports of similar inquiries occurring from Fair Housing Testers. Regardless of whether such an inquiry comes from a Tester or an actual prospective tenant, failure to adhere to the Fair Housing Laws may result in the filing of a complaint. If you’ve received notice of a complaint, contact your errors and omissions insurance provider without delay to ensure compliance with any notice requirements of the policy.

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Written by: Justin Davidson, General Counsel; Catherine Taylor, Associate Counsel; Jonathan Schreiber, Legislative & Regulatory Counsel; and Kate Berard, Associate Counsel.

Services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service.  The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at legalhotline@marealtor.com.