State Laws Addressing Radon, Mold and Secondhand Smoke
The Massachusetts State Sanitary Code (Chapter II) establishes Minimum Standards of Fitness for Human Habitation that apply to all dwelling units, including leased units. 105 Code of Massachusetts Regulations (CMR) 410.000 et seq. The authority to adopt the Sanitary Code is established in the state's public health statute, as part of the chapter governing nuisances. See Massachusetts General Laws (MGL) c. 111, §§3, 127A.
Duty to Maintain and Repair. The Sanitary Code includes a number of provisions that address the underlying causes of mold and moisture problems. For example, the Code requires: adequate ventilation in habitable rooms and bathrooms; weathertight structural elements that prevent infiltration of exterior moisture; and kitchen and bathroom facilities with smooth and impervious surfaces. 105 CMR §§410.280, 410.501, 410.100, 410.250. In addition, the Sanitary Code addresses mold directly through its provisions relating to chronic dampness.
The Sanitary Code defines chronic dampness as "the regular and/or periodic appearance of moisture, water, mold or fungi." 105 CMR §410.020. The Code broadly requires dwelling owners to maintain structural elements (including foundation, floors, walls, doors, windows, ceilings, and roofs) in good repair and free from chronic dampness, thereby incorporating a duty to address regular or periodic mold, moisture, and water intrusion in these structural elements. 105 CMR §410.500. The Code also addresses mold and moisture in basements by prohibiting use or habitation of a room if more than half of its floor-to-ceiling height is below grade and is subject to chronic dampness.
Remedies/Enforcement.The Sanitary Code is enforced by local agencies, which are required to inspect a dwelling upon request and to order owners or occupants to make a good faith effort to correct violations within the time periods specified in the code. 105 CMR §§410.100, 410.820, 410.830. The state is authorized to enforce the code if local agencies fail to do so. M.G.L. t. 111, §127A . Following inspection, the local enforcement agency is required to issue an order to the owner or occupant of a dwelling that is not in compliance with the code, requiring the party to make a good faith effort to correct the violation within the time period specific in the code. 105 CMR §410.830. Parties who violate the code or who fail to comply with an order are subject to monetary fines, as well as to enforcement in the same manner that other local rules and regulations are enforced. 105 CMR §§400.200, 410.900-920. Under certain circumstances, the local enforcement agency may correct violations and recover expenses and any penalties.105 CMR §410.960.
Massachusetts laws also establish a variety of legal remedies for tenants in situations where code violations are not being corrected. These include a "repair and deduct" remedy, as well as the right to treat the lease as abrogated and vacate the premises. MGL c. 111, § 127L. The law also provides for rent withholding under certain circumstances. MGL c. 239, §8A. Other state laws, including the state landlord-tenant law and the state consumer protection law, establish potential legal remedies for cases involving violation of the State Sanitary Code. See MGL c. 93A, §9(3); M.G.L., c. 186, §19.