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URGENT – DPH is trying to substantially modify the Sanitary Code without our proper input

11-15-17

 

ATTN: General Counsel

Department of Public Health

250 Washington Street

Boston, MA 02108

This testimony was also emailed to Reg.Testimony@state.ma.us

 

 

This is a testimony of MassachusettsLandlords.com (about 2,000 unique visitors a month). This web site is managed by Elmir Simov, PO Box 485, Leominster, MA 01453. I own 45 Apartments in Central MA. I have been a landlord for over 19 years. Even though my testimony is “late” I ask you to publish it online along with the others and take my suggestions into account.

 

SEVERAL WORDS ABOUT ANY MODIFICATIONS OF THE SANITARY CODE:

The Department of Public Health claims that for the past “several years” it has worked with “various landlord groups”. Which groups were contacted because my site is one of the most popular in MA on landlord-tenant issues and was never contacted, I just recently learned by accident. The other three or four major landlord associations also say they were never contacted. So the truth is that the DHP has NOT involved landlords in this major proposed change which is a shame because a simple Google search of “massachusetts landlords” or “landlord associations in ma” could easily identify the several major groups on the 1st page of Google and then it’s just a matter of sending them an email to invite their input – all could have been done for less than 30 min by one employee of the DPH. It is absolutely clear to me, and I will post this opinion and my whole testimony online on my blog, that the Department of Public Health was hoping to do this major modification of the Sanitary Code in darkness, behind the back of one the two major stakeholders in the Sanitary Code – the property owners! All the excuses how they don’t have time or how they can’t contact “everyone” are just that – excuses. You don’t need to contact everyone – just the top associations and they will do their best to inform their members. So keep my email for future drafts of the Code.

 

In addition, if one attempts to modify the Sanitary Code in a fair way, one should keep in mind the following principle: Tenants should be cited too if the violation of the Code is reasonably attributable to them, for example, if the toilet is dirty there is no need to cite the landlord, if there is dog poop on the floor no need to cite the landlord, the tenant should be cited. All too often local health boards see their jobs not as protecting the Public from unsanitary conditions but as protecting the defenseless tenants from the big bad landlord and so they allow themselves to be used as tools in the hands of unscrupulous tenants who know how to use the system to legally steal money and time from the landlord even when many of the “poor” conditions should have been reasonably attributed to them. While landlords are cited all the time, tenants are very rarely cited. I have had inspectors tell me that they will only cite a tenant if they catch them in the act AND they admit to doing it. Really, you have to catch their dog pooping inside the apartment and the tenant must admit that it’s their dog? The reasonably attributable standard should be used throughout the Sanitary Code if you want it to be perceived as fair. Tenants should be cited more often!

 

Here are my suggestions in no particular order:

 

WASHBASINS, TOILETS, TUBS and SHOWERS

410.150 (E) is simply no good. Landlords cannot be expected to scrub tenants’ toilets every 24 hours as proposed or ever, really. The tenants are responsible to keep them and the whole apartment clean while they live there. The owner is responsible to have them clean and sanitary at the inception of the lease. That’s it.

 

INTEGRATED PEST CONTROL

Owners should not be required to personally inspect each apartment 3 times a year even when there are no complaints about pests. 1) We are not licensed exterminators, we wouldn’t even know what to look for, 2) it will waste our time in a major way. I own 45 apartments. I have to make 135 visit, that’s about 3 times a week every week of the year from now until eternity, 3) believe me, if tenants have pests they are not shy about sending me a text and notifying me, 4) it will inconvenience tenants, 5) it will create unnecessary fights about access, 6) it will result in more evictions as once we enter the unit we may notice violations of the lease. First of all pest complaints in my buildings are rare but when tenants text me about pests at that point I take reasonable steps to remedy the issue which usually first is to allow them to buy and deduct from the rent any over-the-counter pest stuff that they want depending on the pest from Wal-Mart or Home Depot, Lowes, any other hardware store, etc and if that doesn’t work based on what the tenant tells me I hire an exterminator ($300-$1000 per unit) which is the more expensive route. I always hire an exterminator if the complaint is about bedbugs.  Exterminators are not always required. Sometimes hardware pest products do the trick. They are safe as long as the instructions are followed. Otherwise they will not be sold to anyone by big chains like Home Depot and Walmart. What is required is to have some common sense when dealing with pests. No landlord inspections should be required by the Sanitary Code. That will irritate all tenants who know they have no pests but still being forced by the Code to provide me with access every 3 months. Maybe this “integrated pest control” thing might be ok for buildings of 10 units or more but certainly no less! The current system where the tenant tells you when they have a problem is working fine.

 

BATHS AND SINKS having different temperatures of water. I don’t know how that will work. It’s better to have a range of temperature as it is now.

 

COMMON AREAS BEING BLOCKED. Occupants should be cited if the stuff blocking the egress is reasonably attributable to them and the wording “reasonably attributable” should be in the Sanitary Code.

 

ACCESS TO BASEMENTS: Tenants should NOT be allowed unsupervised access to basements just because they want to see or reset their electrical panels or change a fuse! I do not and will not allow tenants to go there without me or my representative being present. Tenants tinker with stuff.  They can put 20 or 30 amp fuse where only 15 amp fuses are allowed and cause a fire, they play with dangerous oil/gas boiler/water heater equipment by “adjusting it” or “fixing it”. Lives can be lost and guess who would be blamed – the MA landlord. No unsupervised access to basements!

 

REASONABLE NOTICE. All references to “reasonable notice” should remain. It should not be changed to 24 hours or 48 hours. Sometimes a reasonable notice can be 1 hour if the tenant is OK with it. I text them asking if I can stop by in an hour and they say OK. No need to be in violation of some code or some law if I fail to give them exactly 24 hour notice. It all depends on the relationship with the tenant.

 

BATHROOM WALLS. Bathroom walls should not be required to be covered with some waterproof material like fiberglass. Water proof should only be required around tubs. Most of my bathrooms have regular drywall walls painted with semi-gloss paint. In 19 years no complaints about that. If I understand the proposed changes correctly you want waterproof enclosures up to 48″ throughout the whole bathroom. An overkill.

 

HEATING SYSTEMS. You can’t outright outlaw portable heaters just because they can cause fire the same way you can’t outlaw people using candles even though we know they start many of the fires. Portable Heaters have their purpose as supplemental or temporary or emergency heat.  Also some unvented gas heaters are legal in MA. You can’t outlaw in Sanitary Code something that is already legal according to Building and Fire Codes.

 

MECHANICAL VENTILATION IN ALL BATHROOMS. MassachusettsLandlords.com strongly opposes being required to drill walls and install mechanical vents (which in many cases can start fire if left on all day/night) when there are already windows and when there are no repeated citations about mold or humidity. It might be ok to require them if there are two or more citations over 5 years but not when there have been no complaints.  

 

SKYLIGHTS. Working skylights should be kept as being acceptable as providers of natural light and ventilation.

 

KITCHEN OUTLETS. Two electrical outlets will be required in “convenient” locations. The word “convenient” should be removed because it’s very subjective and undefined.

 

HOLES IN WALLS, CRACKS or LOOSE PLASTER OR DEFECTS THAT “RENDER THE AREA DIFFICULT TO KEEP CLEAN”. Again, keeping something “clean” is very subjective. This is something that the tenant should be cited for if these are deemed more likely than not to be attributable to them based on the inspection.  Most landlords take pictures and video at the inception of tenancies so I doubt they rent their apartments with holes in the walls. In addition, the Sanitary Code should be concerned with public safety and health not with cosmetics and how things look. Loose plaster, for example or half painted rooms, or cracks in the drywall are cosmetics in most cases.

 

REFUSE, DUMPSTERS. Requiring dumpsters for all multifamily buildings is not possible. For example I have a 4-family in Fitchburg with only on street parking and there is simply no place to put a dumpster. Also keep in mind recycling is a good thing but we should not be in violation of the law if we don’t recycle. Not eating too much salt is a good thing but we shouldn’t be cited if we do eat salt with our kale.

 

UNFAIR AND DECEPTIVE PRACTICES. Appendix A(6) reads, “Renting an apartment with code violations is a violation of the consumer protection act and regulations for which you may sue an owner.”

Not all code violations rise to the level of MGL 93A according to the Supreme Judicial Court. The violations must be of very serious nature and there must be an actual injury to the tenant. Just a violation of a legally protected interest without a separate and actual injury to the tenant is not 93A (see recent cases Commonwealth vs Keramaris, Karaa vs Yim, Patterson vs Chist Church of the City of Boston, Tyler vs Michaels Stores, Hershenow vs Enterprise Rent-a-car, Lord vs Commercial Union Insurance…should I go on?) You can read all of these cases at MassachusettsLandlords.com or anywhere else on the Internet. This sentence should be modified accordingly and based on the recent cases of the SJC. A lot has changed since 1994 when the Sanitary code was modified and this language put there. It should be updated.

 

LOCKS. If a tenant changes a lock they must give the key to the landlord within 24 hours. We need to have access to our property in emergencies. Plus if a tenant moves out and “forgets” to give the new key to landlord we must break into the apartment by drilling into the lock. Not cool.

 

CLOSETS. Closets should not be required to have a wired light unless they are walk-ins.

 

SMOKE AND CARBON MONOXIDE DETECTORS. Owners should be required to provide a good battery at the inception of the tenancy but while the tenant is living there, tenants should be responsible not to remove it at any time and responsible to change it as needed. We are not mind readers. We can’t know if a battery needs to be changed the same way we don’t know if a light bulb needs changing. The tenant can and should change their own bulbs and batteries.

 

OWNER ADDRESS: The address of the owner hanging on the building can be a PO Box if that is where they get their mail. I, for example, do not want tenants to know where I live the same way a judge may not want their litigants to know where she lives. For the safety of my family. There are all kinds of tenants.

 

WEATHERTIGHT. Doors leading from apartments to common areas, attics and basements do not need to be weather tight, just doors and windows exposed to the weather which are only exterior doors and windows.

 

MOLD. Tenants should be cited when mold/mildew/humidity is reasonably attributable to the tenant due to letting water accumulate and sit or for other obvious reasons. Landlords should not always be cited and blamed for the mold. In my experience most of the times mold is caused by lack of proper sanitary habits by the occupants. I read all the testimonies (about 60) listed on the DPH web site and I would like to quote the Melrose Health Dept here. They say:” Who is required to pay for testing to show that a substance is mold or fungi rather than dirt?  One cannot tell by visual examination what the substance is. As there are no regulations or guidelines that articulate what levels of specific molds and specific fungi affect the health of people, how do we enforce this? I certainly understand that mold is a hot topic at this time, however unfortunately, the science is not available to enforce this section as it is written… How does an inspector confirm that the substance is mold…And even if the substance is confirmed to be mold, not all types of mold are harmful to human health, and those that are have no scientific thresholds.” Well said. If a tenant suspects that something is mold, they need to pay to be tested but even if it’s mold we still won’t know at what levels it’s dangerous for life and safety until the science is conclusive. You are making the life of the Health Board agent, the tenants and the landlords harder with this preoccupation with mold, mechanical ventilation of all bathrooms, etc. People could be having asthma and allergies not only from mold, you know. I have asthma and allergies and my home has no mold. More hearings might be needed to figure out what to do about mold and the science about mold. In my 19 years and over 250 tenancies mold has only once been mentioned in a Health Board citation and it turned out it was the tenant who had not put a secondary shower curtain where they were supposed to put it.

MAINTENANCE OF COMMON AREAS FREE FROM GARBAGE. If common stairways, landings or other common areas have stuff that is reasonably attributable to belong to the tenants then they should be cited not the owner.

 

CONDITIONS DEEMED TO IMPAIR HEALTH AND SAFETY. These should be listed clearly and in one section of the Sanitary Code and be very specific and simple so that everyone can understand them. Language that says that any violations of the Code rises to that level should be removed.

 

NOTICES. First class mail is not good enough. Only certified/registered notices from Health Board to Owners should be acceptable.

 

HEARINGS. Only the owners can request a hearing as they are they are the people served. If tenants and their lawyers can be allowed to request hearings, that will overwhelm the Health Boards. Tenants can only request a Hearing on the items they were cited.

 

PROTECTIVE RAILINGS. We should not be forced to suddenly update from 6” to 4” baluster spacing. There should be some grandfathering provisioned. For example, the switch will be required if a permit is filed for any work on the porch even unrelated to this issue. In other words the current principle should remain: “Only if you are upgrading or repairing something you must bring it up to code”. We should not be suddenly forced to install new railings and porches.

 

BEDBUGS. There should be no requirement that adjacent units are tested too. Also there should be some language allowing the landlord to charge the tenants for some of the bedbugs if they are reasonably attributable to one particular unit if that’s what the inspection by the exterminator shows. Bedbugs are not like other pests. Other pests come into the building from the outside, bedbugs are being brought in. Sometimes patient zero is evident and they should bear at least half of the cost. When you have a 10 unit building and only 1 has bedbugs the adjacent units being tested for bedbugs and no bedbugs found there, who should pay for the cleanup? The landlord certainly had nothing to do with bringing the bedbugs into their own building. Why should they pay 100%? Also Health Board agents should not be forced to inspect all neighboring units, attics, etc. This should be between the owner and the exterminator and determined on a case by case basis.

 

COMMON AREAS VIOLATIONS cannot be made violations of each unit in the building. They should be part of the citation of the particular unit that called the health board as it is now. One citation citing common areas issues is sufficient. It’s redundant to have 3 more (if it’s a 4-family) citations citing the same violations. We got it.

 

 

Sincerely,

 

Elmir Simov,

Founder of MassachusettsLandlords.com

e@massachusettslandlords.com