As a Tenant, You Have a Right to Heat
As anyone who has lived through a New England winter can tell you, heat is a necessity in Massachusetts. The landlord must provide a heating system that can heat every habitable room and every bathroom, and must keep it in good working order (105 CMR 410.160). A fireplace, a wood or pellet stove, or a portable electric space heater does not count as a heating system.
If you are a tenant facing problems with your heat, the time to act is now. By taking the right steps, you can help get the problem fixed as soon as possible.
What Temperatures Does the Law Require?
The State Sanitary Code, 105 CMR 410.000, is the basis for landlord accountability. Under 105 CMR 410.180, from September 15 through May 31, the landlord must heat every habitable room and every room with a toilet, shower or bathtub to:
- At least 68 degrees between 7:00 a.m. and 11:00 p.m.; and
- At least 64 degrees between 11:01 p.m. and 6:59 a.m.
The heating system also may not make any room hotter than 78 degrees during the heating season. A local board of health may shorten the heating season in a given year, but it cannot end it before May 15 or start it after September 30, and it must post notice on the town or city website.
Who Pays for Heating Fuel?
The landlord pays for heat unless the specific conditions in the Sanitary Code are met. For gas or electricity, the landlord must pay unless the service is on a meter that serves only your apartment and a written rental agreement says you pay (105 CMR 410.200). For heating oil, the landlord must pay unless the oil comes from a separate tank that serves only your apartment and a written rental agreement requires you to provide the oil (105 CMR 410.210).
For example, you sign a lease with your landlord. It does not mention who pays for electricity or heat. The landlord must pay for both.
A landlord who is required to supply heat and willfully or intentionally fails to do so breaks the law. The same statute also makes it illegal to shift utility bills to you without your knowledge or consent (G.L. c. 186, § 14). Failing to provide gas or electric service the landlord is obligated to provide, or willfully violating G.L. c. 186, § 14, is also an unfair practice under the Attorney General’s consumer protection regulations (940 CMR 3.17).
What Should You Do When the Heat Goes Off?
For example, let’s say you are watching a movie with your family on a cold December night. The living room gets colder and colder. You check the vents and realize no heat is coming out. What should you do?
- Call the landlord and tell them about the problem.
- Write the landlord an email or letter stating what the problem is and when it started.
Make Sure to Communicate with Your Landlord in Writing
You need a record. If you later raise the heat problem as a defense to an eviction for unpaid rent, you will have to show that the landlord knew about the problem before you fell behind on rent (G.L. c. 239, § 8A). The statute requires that the landlord knew; it does not say the landlord must learn of it in writing. But a dated email or letter is much easier to prove. Put it in writing and keep a copy.
Have the Board of Health Do an Inspection
You can ask your local Board of Health for an inspection in writing, orally, by phone or electronically (105 CMR 410.600). Failure to provide the required heat is always treated as a condition that may endanger health or safety (105 CMR 410.630), so the inspection must take place within one business day after the board receives your request.
At the end of the inspection, the inspector must give you a verbal summary of what was found, and a written summary if you ask for one (105 CMR 410.620). If the inspector finds a heat violation, the board must, within 12 hours after the inspection, order the landlord to make a good faith effort to fix it within 24 hours of service of the order (105 CMR 410.640). The order must be in writing and include a copy of the inspection report (105 CMR 410.670). The board must reinspect within 24 hours after the deadline to fix the problem (105 CMR 410.660).
Keep a Temperature Log
Creating your own record of temperature problems is important if the case ends up in court. Call the inspector and keep track of every complaint, because these records help prove your claim. Be as accurate as possible with your personal temperature log.
Write down the date, time and location of each reading. The Sanitary Code measures temperature five feet above the floor, on a wall, at a point more than five feet from the exterior wall (105 CMR 410.180). A thermometer that stays in one place is ideal. Photos of the thermostat or thermometer with a timestamp are also helpful evidence.
You May Be Able to Withhold Rent
Failing to provide adequate heat can be a breach of the warranty of habitability, which applies to every residential rental in Massachusetts. If your landlord sues to evict you for nonpayment of rent, you can raise the heat problem as a defense or counterclaim under G.L. c. 239, § 8A. To get relief based on the condition of the apartment, several conditions must be met, including these:
- The landlord, its agent, or the person you pay rent to must have known about the problem before you were behind on rent. A written Board of Health inspection notice delivered to the landlord creates a presumption that, from the date it was received, the landlord knew of the conditions listed in it.
- The landlord must not be able to show that you, or someone under your control, caused the problem.
Proof that the apartment violates the Sanitary Code in a way that may endanger health or safety, such as a lack of required heat, creates a presumption that you are entitled to a defense or counterclaim. A copy of the inspection report, certified by the inspector under the penalties of perjury, is admissible in court as evidence of the facts in it.
If you choose to withhold rent, set the money aside. The court can require you to pay into court the fair value of your use of the apartment, minus any amount awarded to you, or to make deposits as the court directs. If the court finds you owe the landlord more than the landlord owes you, you can still keep your apartment by paying that balance, plus interest and costs, within one week after written notice from the court.
You may be entitled to a reduction of rent, called an “abatement,” for the time you were without adequate heat. The measure is the difference between the value of the apartment as it should have been and its value with the defect, for the time after the landlord had notice of the problem. See Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973).
Protection From Retaliation and Other Remedies
A landlord who willfully fails to provide required heat, interferes with your quiet enjoyment, or tries to get you out by force without going to court can be liable for your actual and consequential damages or three months’ rent, whichever is greater, plus your court costs and a reasonable attorney’s fee (G.L. c. 186, § 14). The landlord can also face a criminal fine or jail.
The law also protects you from retaliation for reporting a code violation to the Board of Health or complaining in writing to the landlord, and those protections apply to tenants who raise a defense or counterclaim under G.L. c. 239, § 8A. If, within six months after you report to the Board of Health or complain in writing, the landlord serves a notice to quit (other than for nonpayment of rent), raises your rent, or substantially changes the terms of your tenancy, the law presumes it is retaliation. A landlord who retaliates can be liable for one to three months’ rent or your actual damages, whichever is greater, plus costs and a reasonable attorney’s fee (G.L. c. 186, § 18).
Because these statutes allow tenants to recover attorney’s fees from the landlord, a lawyer may be able to take your case without charging you up front. Knowing your rights and following the proper steps will help see you through this.
Talk to a Massachusetts Tenant Lawyer
Every situation is different, so it pays to act early.
If your apartment is not getting enough heat, call Doubleday Law at (617) 575-2006. This post is general information, not legal advice for your situation.
If you need help with your apartment heat, please get in touch now