Your Right to Habitable Housing in Massachusetts

Massachusetts landlords must keep rentals up to the State Sanitary Code (105 CMR 410), which since its 2023 update requires heat of at least 68°F by day and 64°F at night from September 15 through May 31, hot water between 110°F and 130°F, and working smoke and carbon monoxide alarms. Your local board of health must inspect when you ask, within one business day for emergency conditions. An inspection report finding that a violation may endanger or materially impair your health or safety certifies it; if the owner then misses the repair deadlines, you can make the repair and deduct up to four months' rent in a 12-month period under G.L. c. 111, section 127L. The same report helps if you withhold rent under G.L. c. 239, section 8A, because the court will treat the cited conditions as proven unless the landlord shows otherwise.

What the Sanitary Code requires

The Attorney General's office describes the code as the minimum standard for a habitable home in Massachusetts, which makes it the state's measure of the implied warranty of habitability, one of the basic rights every tenant has. Key requirements:

The code treats certain problems as conditions that may endanger or materially impair health or safety. They include no heat; no water or hot water for 24 hours or more; a shutoff of electricity, gas, or water; a broken toilet, sink, tub, or shower; a broken owner-supplied stove, oven, or refrigerator; blocked exits; broken security locks; pests; lead paint violations; structural defects; and missing smoke or carbon monoxide alarms. Any other violation joins that list if the owner does not fix it by the deadline the board of health sets.

How to get a board of health inspection

1. Notify the landlord in writing and keep a copy. The inspection does not require it, but rent withholding depends on the landlord knowing about the problem before you fall behind on rent, and repair and deduct depends on written notice to the owner.
2. Request the inspection. Contact your local board of health by phone, in writing, online, or in person. The code requires it to inspect your unit and common areas even if you have not told the landlord, even if an eviction case is pending, and even if you ask to keep your name confidential. The Attorney General's guide points to UpToCode.org for finding your local board. In Boston, contact the city's Inspectional Services Department or BOS:311.
3. Expect a prompt visit. The inspection must happen within one business day when you report an emergency condition from the list above, and within five business days for other problems.
4. Ask for a comprehensive inspection. You have a right to one, which checks every code standard in addition to the problem you reported. At the end, the inspector must give you a verbal summary, and a written one if you ask.
5. Get the report. The inspector signs it under the pains and penalties of perjury, lists each violation, and states whether it may endanger or materially impair health, safety, or well-being. That finding is the certification that repair and deduct requires.
6. Watch the deadlines. Within 12 hours after the inspection, the board must order the owner to make a good-faith effort to fix emergency violations within 24 hours. Within seven days, it must order other violations fixed within 30 days. Reinspection follows within 24 hours or seven days after those deadlines.

Withholding rent under G.L. c. 239, section 8A

Section 8A is the legal basis for rent withholding: you hold back some or all of the rent, and if the landlord sues to evict you for nonpayment, or after ending your tenancy through no fault of yours, you raise the conditions as a defense or counterclaim (a claim of your own against the landlord in the same case). The court then decides what you owe. The defense works only if:

• the landlord, an agent or employee, or the person you pay rent to knew about the conditions before you fell behind on rent;
• the landlord does not show that you, or someone under your control, caused them;
• you do not live in a hotel or motel, or in a rooming house where you have stayed less than three months; and
• the landlord does not show that the conditions can be fixed only if you move out (a temporary move-out for removing or covering lead paint does not count against you).

Two presumptions, meaning facts the court treats as true unless the landlord proves otherwise, help your case. Proof that the unit violates the code in a way that may endanger health or safety creates a presumption that the conditions existed. Written notice of a board of health inspection, once the landlord receives it, creates a presumption that the landlord knew of the conditions in it from that date. A certified inspection report is admissible in court and counts as evidence of the facts it states.

Your claim can include the difference between the agreed rent and the fair value of the unit in its actual condition, plus any amount you reasonably spent under repair and deduct. After a hearing, the court may order you to pay that fair value, minus what it awards you, to the court clerk, and it can direct that money toward repairs. If the court finds you owe the landlord more than the landlord owes you, you keep the apartment by paying the balance, with interest and court costs, to the court clerk within one week after you receive the court's written notice of the amount.

Example: your rent is $1,800 a month. You withhold three months, or $5,400, while the heat is out, and the court finds the unit was worth $1,200 a month in that condition. Your claim is ($1,800 - $1,200) x 3 months = $1,800, so you owe $5,400 - $1,800 = $3,600 plus interest and costs, and paying that to the clerk within a week of receiving the court's notice prevents an eviction judgment. Keep withheld rent set aside for that payment. The Attorney General's guide recommends talking to a private lawyer or legal services before you withhold; Can you legally withhold rent? covers the general risks.

Repair and deduct under G.L. c. 111, section 127L

Section 127L is the Massachusetts version of the repair and deduct remedy, and it works only in this order:

1. Certification. The board of health or local code enforcement agency (in Boston, Worcester, and Cambridge, the commissioner of housing inspection), or a court, must certify that the violations may endanger or materially impair your health, safety, or well-being.
2. Written notice. The owner or the owner's agent must be notified in writing of the violations. A copy of the inspection report attached to your letter shows exactly what was cited.
3. The owner's deadlines. The owner has 5 days after the notice to begin all necessary repairs or sign a written contract with someone to do them, and 14 days to substantially complete them. If the board of health or a court set a shorter deadline, that deadline applies.
4. Your repair. If the owner misses either deadline, you can make the repairs or hire someone, then deduct the cost from rent that comes due afterward.

Limits on the remedy:

• Four-month cap. You can deduct no more than four months' rent in any 12-month period, or during your time in the unit if that is shorter, based on your highest monthly rent in that period. At $1,500 a month, the cap is $1,500 x 4 = $6,000. When a violation affects several units or a common area, the total deducted by all affected tenants cannot exceed four months of their combined rent.
• Reasonable cost. The owner can recover any amount above the cap or any amount that was unreasonable, judged by the options you had when you reported the problem, how urgent the repair was, and the quality and cost of the work. The owner must bring a separate contract claim to do that, not an eviction case.
• Exclusions. The remedy does not cover damage caused by you, your household, or your guests, and you lose it if you unreasonably denied the owner access to make repairs.
• No rent increase. The owner cannot raise your rent because of repairs you made under this section unless a court orders it.

If the owner misses the deadlines, you can instead treat the lease as ended, pay only the fair value of your use of the unit, and move out within a reasonable time. A lease clause that gives up these rights is void, except in a lease of at least two years in which you agreed to make defined repairs in exchange for substantially lower rent.

Protection from retaliation and lost utilities

Under G.L. c. 186, section 18, a landlord who threatens or takes reprisals because you reported a code violation to the board of health, complained about one in writing to the landlord, took legal action to enforce housing laws, or joined a tenants' union owes you at least one month's and up to three months' rent, or your actual damages if higher, plus court costs and attorney's fees. A termination notice for any reason other than nonpayment, a rent increase, or a substantial change in your tenancy within six months after that activity is presumed to be a reprisal. To overcome that presumption, the landlord needs clear and convincing evidence, a higher standard of proof than usual, that it had an independent reason and would have acted the same way at the same time anyway. Section 8A extends these protections to tenants who invoke it.

A landlord who is responsible for heat, hot water, water, gas, or electricity and willfully fails to provide it is liable under G.L. c. 186, section 14 for your actual damages or three months' rent, whichever is greater, plus attorney's fees. More on these protections is in retaliation protections for tenants and Massachusetts eviction protections.