New Tenancies After May 12 Must Include Notice to Renters About Safe Housing Rights
| . Posted in News - 12 Comments
By Kimberly Rau, MassLandlords, Inc.
As of May 12, 2023, landlords must provide renters starting a new tenancy with the state-issued Notice of Occupants’ Legal Rights and Responsibilities. However, we have reached out to the Department of Public Health (DPH), as we have serious concerns with the verbiage of the document.
This section of the new Notice of Occupants’ Legal Rights and Responsibilities is just one area of concern. Encourage your tenants to speak to you first about problems, so you can fix them as soon as possible. [Image: Public Domain]
Our issues lie with how the notice is worded in certain places. For instance, one portion of the notice reads, “If you think that conditions in your home are unsafe or unsanitary and may violate the Housing Code, you should contact your local health department.”
This is problematic on several levels. First, the word “should” implies that renters have a legal obligation to contact their local health department before talking to their landlord. But it’s in both parties’ best interests for tenants to discuss any concerns with their housing provider before talking to the board of health.
First, discussing the problem with the landlord gives them the opportunity to address the issue right off the bat. This keeps the lines of communication open and allows for good will between renter and landlord. And tenants can always contact the health department if the landlord fails to fix the problem.
But perhaps more importantly, the law allows renters to withhold rent if their housing is sub-standard. Whether the tenants retain possession depends on whether they owe the landlord more than the landlord owes them, once the landlord has been given notice. Yes, you will receive notice once the board of health has completed its inspection, but that could be weeks later. Those weeks do not work in the tenant’s favor, because the landlord was not on notice, and it makes it harder for them to maintain possession. It also may end up costing the landlord more money, since certain problems may get worse before they receive notification.
The way the law is structured encourages renters to let their landlords know about problems at least as soon as they contact the health department. The notice works against this by implying tenants do not need to bring their concerns to you, the housing provider.
Listed Resources Violate Landlords’ First Amendment Rights
Our second issue with the notice is on page 2, where tenants are directed to a list of resources, including masslfr.org, masslegalhelp.org and madeuptocode.org. While these sites may be useful, they are not government sites. In fact, they are owned by organizations that advocate for policies that are contrary to landlord interests.
Why is this an issue? It’s a problem because these are not objective resources. A recent court memorandum and order from a 2020 case Baptiste v. Kennealy, speaks out against use of such resources.
“[T]he court finds that plaintiffs are likely to prevail on their claim that the second paragraph of 400 C.M.R. §5.03(2) unconstitutionally compels speech by requiring plaintiffs to include in any notice of rent arrearage addresses of non-governmental websites that, in turn, refer tenants to tenant advocacy groups, including City Life/Vida Urbana, with interests adverse to plaintiffs’.”
This is exactly what the new notice does. By insisting we give tenants a notice that directs them to those sites, the state is compelling us to make our tenants the customers of our political opponents. The only way such an order would be lawful is if the websites were operated entirely by non-political organizations, which they aren’t.
As structured, this violates landlords’ first amendment rights. Compelled referrals of this kind, along with the verbiage that suggests landlords are endorsing those sites, makes this compelled speech.
We have voiced our concerns to the DPH, urging them to suspend the requirement of issuing the notice until the verbiage of the notice can undergo a notice and comment period just as the regulation itself did. We asked the DPH to issue a retraction within seven days, which they failed to do. We asked that they start notice and comment within 120 days. Concerns such as ours should be properly heard and addressed by DPH, but it may be necessary for us to obtain a court order.
In the meantime, we recommend you comply with the law and provide your new tenants a copy of the notice, or post it, as required. But when you present them with it, let them know that you are always willing to hear about their concerns as soon as they arise, and will be happy to address them as soon as possible.
We will keep you updated on any changes with this regulation as they may occur.
Revisions
- v1
- Initial version
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This rights sheet suggests renters shouldn't talk to you first about housing issues and forces you to recommend resources that are not landlord-friendly. We will fight this if we have to!
Thank you for this very important information, and raising the issues with the State.
Are there any suggestions, or examples on how to word this in an addendum to the lease?
Landlords 0, Tenants 12. Not a fair game when the cards are stacked against you. It’s Massachusetts’s way to solve the housing crisis by shifting the burden of housing the homeless onto small landlords backs. Housing is expensive so shift the costs via legislation and court procedural delays to really stretch out the time landlords have to carry a tenant for free, and then guarantee that the landlord will never see a dime for it. On top of all this, seal the eviction records so the next unsuspecting landlord won’t have a clue. I’ve had to do many evictions due to tenants deciding they didn’t want to pay rent then creating code violations so the board of health gets involved. With all these tenant’s rights advocates and even the judges being pro tenant, it’s always a very expensive and nightmarish process for small landlords to endure. And I’m seeing more tenants these days trying to get in to our apartments to repeat their bad behavior. Thank you Mass Landlords for being our advocate in this nightmare. Maybe, just maybe, common sense will prevail.
what is the best way to word this on an addendum in the lease?
I wonder if the Mass legislature understands that small property owners increasingly will tend to rent to seasonal tenants and not year round tenants?
When the State burdens property owners with the inability to remove bad tenants at the end of their lease, why would anyone invest in year round rental housing?
The way that I understand the document:
The tenant should first tell the Board of Health and the landlords political enemies that they have a code violation. The Board of Health does an inspection without the landlords knowledge. The Board of Health then tells the landlord about the code violation. There’s something un-American and wrong with this picture! Jim Duffy
Now just to get it straight. This notice is to be served with any new tenants? After May 1st is that correct?
Do all tenants need to be served this notice?
Thank You
William T DROZDAL II
Drozdal Apartments
Southbridge Mass
And what should the Landlord do, when he/she knows of or has reasonable evidence that code violations are introduced by the tenants … which introduce real physical dangers to other tenants and the building … that the landlord has a legal obligation to protect?
Included disabled fire alarm, removed thermostat, removed common area light, blocked vent, accumulated junk, etc.
Do Landlords have the right and an obligation to submit a request for inspection to the board of health, the fire department or the building inspector?
If so, should the above Landlord right/obligation be part of the notice or lease addendum?
Does local jurisdiction have an obligation to respond and act on the Landlords request?
Does subsequent to the above inspection Landlord have the right to end the tenancy w/o being subject of “retaliation” clause?
Thank you for this updated information
Hello,
I recently became a first time homeowner and landlord all at once. It seems like everytime I log in there’s more in formation on what landlords have to abide by but tenants list is getting shorter and shorter . To be honest it can be a bit discouraging and at times makes me question my choice of becoming a landlord .As Peter mentioned above …All the advocating being done y this great team is much appreciated . Thank you for creating this platform
I think this is for slum lords if you rent do a walk thru of your property with the tenants and see if you see anything that needs to be addressed and if they see anything before you give keys or sign lease and have them sign it if neither party has complaints and you both agree signit an agreement saying just that. so everyone addressed any issues and agreed to that then they can’t say anything was messed up and landlords have proof I would do this every time you renew a lease
Maybe good news… I looked at the current version of that notification just now and saw that they actually changed the verbiage to have tenants notify their landlord first! Thanks to the Masslandlords team for making change happen! Here’s the link to the version I’m looking at: https://www.mass.gov/doc/occupants-legal-rights-and-responsibilities-0/download