Article Details



Legal

Notes from the MAR Legal Hotline

6/9/2015


Notes from the MAR Legal Hotline

 

Michael McDonagh, MAR General Counsel

Ashley Stolba, MAR Associate Counsel  

Justin Davidson, MAR Legislative & Regulatory Counsel

 

June 2015

 

Q.        I am I’m working on taking a listing that was built before 1978. The seller did a lead test from a testing kit that she bought and it was positive for lead paint. A version of  EPA's pamphlet "Protect Your Family from Lead in Your Home" states that studies suggest that home test kits for lead are not always accurate, and that consumers should not rely on home test kits to assure safety. Therefore, does the use of home test kits for lead constitute knowledge of lead-based paint for disclosure purposes? Must this be disclosed to potential buyers?

 

A:  Yes, this must be disclosed to prospective buyers.  According to a HUD Guidance Memo,   

"if an owner has information obtained from the use of a home test kit for lead, that information must be disclosed; however, the owner should also disclose information about the reliability of the test kit results." Therefore, if the testing kit showed the presence of lead paint in the home, this must be disclosed to prospective buyers. It is recommended that the results of the test-kit be affixed to the lead paint disclosure, which will also indicate that the homeowner conducted the test, rather than a trained professional. As always, the prospective buyer shall have a 10-day opportunity to conduct a risk assessment

or inspection for the presence of lead-based paint and/or lead-based paint hazards. The foregoing also applies to rental properties built before 1978.

 

Q:  The landlord that I represent has stated that he will not accept a tenant application from a tenant who has a credit score below 450. I have received an application from a tenant who is a recipient of Section 8 subsidy who has a credit score of 400. Must the landlord accept this applicant, since he is a recipient of a public subsidy?

 

A:            Prospective tenants who receive rental assistance are a protected class under state law,  Massachusetts General Laws, Chapter 151B and, as such, it is illegal to discriminate based on the fact that he or she has a Section 8 certificate or voucher. Applicants may not be rejected solely because they are subsidy recipients, however, a landlord is otherwise free to enforce legitimate, non-discriminatory screening criteria and deny applicants who do not meet that criteria.  Poor credit is considered an appropriate reason for rejection. Other examples include a criminal record and a lack of references. Keep in mind, though, that a screening policy of this type must be followed consistently without arbitrary waivers. Deviation from the criteria set by the landlord could be viewed as a form of discrimination against subsidy recipients and other members of protected classes.

 

Q.        I have heard from a prospective tenant that there is a requirement under Massachusetts law that a landlord provide an executed copy of a lease within 30 days in order to form a valid tenancy. Is this true? If a tenant does not receive a copy, what effect would it have on the tenancy?

 

A.         Massachusetts General Laws, Chapter 186, Section 15D states, in part that “a lessor who has agreed orally to execute a lease and obtains the signature of the lessee shall, within thirty days thereafter, deliver a copy of said lease to the lessee, duly signed and executed by said lessor.” This language places the burden on the landlord, or his or her agent, to ensure that the tenant has received a copy of the lease in those circumstances where the landlord has verbally agreed to the tenancy. The statute goes on to include a provision that prohibits any waiver of this requirement within the lease and also makes it possible for a landlord to be fined up to $300 for failure to comply. According to case law in Massachusetts, noncompliance with this law does not in and of itself render an otherwise valid lease unenforceable.