Martha's Vineyard attorney tells landlords law favors tenants
Updated 11 am, May 31
Vineyard landlords and prospective landlords learned that their ventures are fraught with daunting legal and financial complications at a workshop held Friday, May 18. Lawyer Erik Hammarlund of Vineyard Haven took a group of mostly landlords and realtors through the intricacies of the laws that protect tenants.
Mr. Hammarlund and Edgartown health agent Matt Poole discussed housing violations and the legal missteps Island landlords often make and what they can do to protect themselves.
Holding a half-inch thick binder, Mr. Poole said, "The housing code is this thick."
Those on the Vineyard who rent houses, apartments, and rooms in private houses must comply with the housing code.
"Being a landlord is hugely overrated," Mr. Poole said. "Being a good tenant really boils down to paying your rent on time. Being a landlord who provides housing in compliance with the housing code is very, very difficult, and as soon as something is wrong it becomes a huge responsibility for the landlord."
"Massachusetts is one of the strictest landlord-tenant states in the country," Mr. Hammarlund said. "When I say the strictest, what I mean is one of the most biased toward tenants."
"I could probably find things wrong in my own house. It is hard to be one hundred percent compliant," Mr. Poole added.
In a typical year, he added, he receives three to five complaints, though the objectionable conditions vary, from holes in window screens to lack of smoke detectors.
Mold is a common complaint not covered by the housing code. "It regulates excessive dampness, but it does not regulate mold," Mr. Poole said. "There is a lot of illegal housing out there, and there is a lot of liability in taking someone's money and putting them in housing you know is illegal."
Under such circumstances, "you have to give it back, all of it back," Mr. Hammarlund said.
Mr. Hammarlund asked his audience of about 20 in the Edgartown Town Hall, "who here has ever taken a security deposit?"
As hands rose, Mr. Hammarlund said, "When you take a security deposit, you are almost certainly making a huge, huge mistake."
Before a tenant moves in, he explained, a landlord can ask for first month's rent, last month's rent, and a security deposit of no more than the amount of a month of rent. The security deposit must be placed in an Massachusetts escrow account within 10 days of its receipt.
Within 30 days of a tenant departing, the landlord must refund the security deposit, or send a letter detailing damages and specific receipts for replacment or repair. The letter must include, "This letter is signed under penalty of perjury. If you leave that line out, it's like you never sent the letter," the lawyer said.
If the landlord retains the security deposit or fails to describe in detail the damages, and a dispute ensues, a landlord must pay three times the security deposit, plus the tenant's attorneys' fees.
"The mandatory triple damages can add up," Mr. Hammarlund said. "I had a client with an $1,800 security deposit. Without question, she caused $2,000 worth of damage to the apartment, no doubt. When all was said and done, the landlord wrote her a check for $4,000. It doesn't matter that she actually caused the damage."
Mr. Hammarlund said most short-term vacation rentals are not subject to the security deposit law. He said the security deposit statute, M.G.L. 186 section 15B, states, "The provisions of this section shall not apply to any lease, rental, occupancy or tenancy of one hundred days or less in duration which lease or rental is for a vacation or recreational purpose."
However, he added that residential tenancies, as opposed to rentals for vacation or recreational purposes, are subject to the law, irrespective of length.
Mr. Hammarlund recommended that landlords look into a tenant's credit and rental history instead. To run a credit check on a prospective tenant, Mr. Hammarlund said the landlord needs the tenants approval — in writing. "Getting someone's credit report without their written permission is a violation of all sorts of laws," he said.
Also, according to Mr. Hammarlund, it is illegal to discriminate when advertising the rental property. "Just like you cannot put up an ad saying I will not rent to women, you cannot put up an ad saying I will not rent to parents," he said.
Many houses on the Island were built before 1978, when lead was banned from household paint, and many still contain lead. If a child under six is living in the house and the property is found to contain lead paint, a landlord is required to remediate the property, which, Mr. Hammarlund said, can cost $200,000.
"Now you may reasonably think to yourself that the solution to that is to say that you will not rent to families with children under six. But that is illegal," Mr. Hammarlund said.
The best thing to do, he said, is to have plausible deniability. "You do not want to know that your house contains lead. I advise against going to your rental properties and testing for lead, because if it does, and you can be shown to know that it does, then you can be required to make some very expensive changes."
He added that he studiously avoids finding out if his own house contains lead, a method that is "a perfectly legal thing to do."
In an email to The Times, Mr. Hammarlund said a considerable amount of information is available through the free pamphlets published by the state, which may be obtained at the courthouse, and online at mass.gov/ocabr/consumer/housing/tenant-and-landlord/.