Following years of debate, a new version of the Massachusetts State Sanitary Code will take effect on
April 1. The Department of Public Health, which has responsibility for promulgating the Code, decided that the existing version had become outdated, ambiguous and in some cases obsolete. With input from state and local officials as well as landlord and tenant groups, the DPH has produced the first major overhaul of the Code since 1994. Many of the existing provisions have been tweaked and renumbered while others have undergone more significant changes and new sections have been added. Landlords should take the time to familiarize themselves with the new Code; the official version has yet to be published but here’s a DPH website which contains a link to the text:
https://www.mass.gov/info-details/housing-code-effective-april-2023. What follows is a summary of what appear to be the most important new dictates applicable to multi-family apartment buildings (separate sections of the Code regulate lodging houses, single-family dwellings and other forms of housing).
Access to Apartments
Except in case of emergency, tenants will now be entitled to at least 48 hours’ prior notice before giving landlords access to an apartment for the purpose of correcting Code violations. If possible, an appointment should be scheduled.
Refrigerators
The Code will continue to require landlords to provide a stove and oven unless the lease obligates the tenant to supply these appliances. The same rule will now be extended to refrigerators and freezers; if they’re not included with the apartment or don’t contain a combined storage area of at least 11 cubic feet, the lease must say so.
Kitchen Walls
The wall above a kitchen countertop must have a smooth, non-absorbent, easily cleanable surface and form a watertight seal with the countertop itself. The wall surface must extend at least 24 inched above the countertop where practicable.
Hot Water
The required temperature range for hot water continues to be 110-130 degrees except in the case of bathtubs or showers, where the maximum temperature has been reduced to 120 degrees.
Heating Facilities
Like portable electric space heaters, fireplaces will not be considered to meet the requirements of a heating system.
Temperature Standards
The heating season will now run from September 15 through May 31 instead of from September 16 through June 14. Local health boards are authorized to shorten the heating season throughout a particular city or town so as to begin no later than September 30 and end no earlier than May 15. It appears that individual landlords will no longer be entitled to obtain variances shrinking the heating season even further.
Electrical Panels
Tenants who are required to purchase their own electricity must now be given access to their apartment’s electrical distribution panel.
Posting of Contact Information
Owners who employ property managers living on-site have historically been exempt from the requirement that the owner’s name and contact information be posted next to the mailboxes or in another readily-visible location. That exemption has now been eliminated. Unless the owner lives in the building, the owner’s contact information must be posted together with contact information for any non-resident property manager.
Monitoring Messages
The telephone number of the owner and property manager must be regularly monitored (e.g., checking voicemail messages) but no less frequently than once every 12 hours unless occupants have been provided with an alternate contact person and phone number for use during periods of temporary absence.
Notice of Tenant Rights
Landlords will be obligated to make tenants aware of their legal rights and responsibilities by providing to each occupant a copy of a notice to be prepared by the DPH or posting the notice next to the mailboxes or in another readily-visible location.
Mold
The Code currently requires landlords to keep their buildings free from “chronic dampness”. That phrase has been changed to “excess moisture or the appearance of mold”. Tenants will still be expected to keep their apartments in a sanitary condition, which should include cleaning shower stalls and avoiding other conditions likely to cause mold.
Leaks and Flooding
In the event of leaks or flooding, landlords will be required to ensure that all surfaces have been dried within 48 hours after notice of the occurrence. While the wording is unclear, it appears that landlords who don’t receive a notice will be expected to take action within 48 hours after “the end of the event”, for example a major rainstorm.
Weathertight Elements
The requirements for ensuring that windows and doors are watertight have been tightened. In particular, weatherstripping will no longer be considered sufficient to prevent the infiltration of air or moisture.
Screens
All openable exterior windows, not just those on the first four floors of a building, will have to be equipped with screens during the period from April 1 through October 31.
Pest Control
Landlords will be required to inspect each apartment prior to turnover in order to identify the presence of pests, broadly defined to include all “unwanted animal life”. Extermination continues to be the landlord’s responsibility, although tenants will still be expected to maintain their apartments in a “sanitary manner so as to prevent the attraction of pests”.
Garbage Collection
The obligation of a landlord to provide receptacles and arrange for the removal of garbage used to apply only where a building contained three or more dwelling units; that threshold has been reduced to two, meaning that all multi-unit structures will now be covered. Tenants will be expected to abide by local regulations governing the separation of recyclable, yard waste and bulk items like mattresses and large appliances.
Exterior Maintenance
The obligation of landlords relative to exterior areas will now include eliminating “potential injury hazards” and “conditions contributing to the accumulation of standing water”.
Variances
In those instances where a landlord has obtained a variance from the local health board allowing the Code’s requirements to be modified, all tenants must be given a copy of the variance, which should also be attached to new leases.
Condemnation
Local health boards retain their right to condemn buildings found to be unfit for human habitation. A new Code provision will now require landlords to provide comparable, suitable housing for tenants during the remainder of the lease term or until the building is deemed suitable for occupancy by the board.
Many of these new provisions are unclear and will need to be clarified by the DPH or interpreted by the courts, In the meantime, members with general questions may contact the Massachusetts Apartment Association’s free legal hotline at 617-573-5822; those needing more specific advice are urged to consult with their own attorneys.
Philip S. Lapatin
Holland & Knight LLP
March 10, 2023