I rented a single-family house in MA. YANML, but I probably need one.
March 6, 2013 7:12 PM   Subscribe

I rented a single-family house in MA with 2 roommates. We have 2 toddlers. This house isn't deleaded, and it needs to be, and landlady is very unhappy about the expense. We offered to vacate the lease, but my now crazy landlady wants to keep the security deposit I put down. Help?

(Stupid move #1) I signed a lease via email 2/28, on a single-family house in Somerville, MA, to begin tenancy March 1. I had seen the house about a month before and had noted some issues that the realtor assured me would be fixed.

We did a walk-through on 3/1, after signing the lease instead of before (stupid move #2), and after we made a list of the needed repairs to be added to the lease, I gave the realtor a certified check for a security deposit (stupid move #3). It was in an envelope, and I neglected to keep my copy (stupid move #4). [I tried to get the realtor to give me a receipt, but she refused. The lease says that I paid 1st month's rent; we have the landlady on a voicemail requesting through sobs to keep the security deposit, as well as an email from the landlady stating that she is willing to give me a receipt for the deposit.] My roommate did not have a check at the time of walk-through on 3/1, so we agreed to meet up to exchange the check for keys on 3/2.

My roommates (a couple) have a two-year-old daughter. I have a two-year-old son. On close inspection, the property clearly had not been deleaded. Roommate and I decide we want out of this lease. We request the check back. The landlady says, "No," which she is within her rights to do. She has the house lead inspected.

Last night, we received the results of the inspection. The house is FULL of lead paint and will cost a lot of money to fix. The landlady is now willing to let us out of the lease so that she doesn't have to have the place deleaded, but wants to keep my $2100 security deposit! Hell to the no.

Landlady has now cried on the phone with both my roommate and I, as well as into my roommate's voicemail. She is not emotionally stable or particularly reasonable (which is the main reason I wanted out of the lease in the first place. Stupid move #5, not meeting the landlady before signing the lease. Don't be like me).

So, I've sent her an email that basically says, "Here is the lead law. You can either a) vacate the lease and return my deposit or b) honor the lease and get the place deleaded ASAP."

Eeeek, it's awful to see all my stupid moves laid out like that. I really did not think this through. I figure that tomorrow I need to get a lawyer. Problem is, I really do not have lawyer money right now. What should I do? YANML, of course.

I certainly can't afford to let this woman keep my deposit, and if we honor this lease I will have a pissed-off, emotionally unstable landlady. So tips for dealing with that would be good also.

If your only answer is "lawyer," can you recommend one in the Boston area? Preferably one who won't charge me the entire contents of my bank account?
posted by woodvine to Law & Government (20 answers total) 3 users marked this as a favorite
You don't mention if you signed this 'certification' as part of the lease. Perhaps that will be helpful to your case. Others with more legal experience could weigh in on whether this gives you any advantage, and whether it might be helpful to point it out to your 'landlord'. Is your lease valid without this having been done?
posted by Tandem Affinity at 7:18 PM on March 6, 2013 [1 favorite]

Response by poster: The lease contains a lead law notification. The option that is checked is "Owner/Lessor has no knowledge of lead hazards."

After we signed the lease, we requested a lead inspection, which was done. The inspector found numerous lead problems.
posted by woodvine at 7:24 PM on March 6, 2013

Just wondering -- has the check cleared? Can you stop payment on it?
posted by jacquilynne at 7:37 PM on March 6, 2013

Response by poster: It's a certified check, but I did actually go to my bank and try. The answer was no, I can't put a stop payment on a certified check unless it's been 90 days and hasn't been cashed.
posted by woodvine at 7:46 PM on March 6, 2013

Have you already told the landlady that you'll be suing for the deposit back? Small claims wouldn't even require a lawyer and you can add that she'd have to eat your filing fees, etc. as well when she loses.
posted by vegartanipla at 8:05 PM on March 6, 2013 [1 favorite]

Is the realtor now completely out of the picture?
posted by nacho fries at 8:12 PM on March 6, 2013

There was a realtor involved? Go after them!
posted by fshgrl at 8:12 PM on March 6, 2013 [1 favorite]

Problem is, I really do not have lawyer money right now.

Approach a tenants' rights organization in your area and see if they have resources that might be of use either in finding an attorney or in working through the small claims process.

Find out if in your jurisdiction landlord/tenant issues are considered in a separate part of a court with its own modified procedures and additional resources for tenants. Be sure to check the fine print, though, because in some jurisdictions certain security deposit issues are not within the purview of separate housing parts.

Pick your friends' brains for a generally competent lawyer with some litigation experience who might be willing to work on a simple matter such as this one for a flat fee or on a sliding-scale basis.
posted by Inspector.Gadget at 8:14 PM on March 6, 2013 [1 favorite]

I would try calling a tenants rights organization. Quick googling makes me think there are a lot in the Somerville / Cambridge area and a certified letter from a lawyer affiliated with one should be enough to make landlady release her grip on the check. Yes, I think she does have to give it back - and the other thing is you want to file a complaint somewhere if only to try to ensure that she doesn't turn around and rent this place to someone else without doing anything about the lead paint.
posted by mygothlaundry at 8:15 PM on March 6, 2013 [1 favorite]

Best answer: You want Greater Boston Legal Services. They have a Cambridge/Somerville office and provide legal representation to people who can;t afford a lawyer and have a housing issue, to wit: "Provide legal advice and representation where landlords are unjustly seeking the displacement of tenants through speedy injunctions, without any court process (“lock out”), condemnation and failure to remedy serious health code violations, or the like."

I'd give them a call and get their advice. I'm sure they're super-busy, funding's tight these days, but they should at least be able advise you on how to proceed to start with, and may be able to send a scary lawyer letter or even take the case up in housing court if need be. Harvard also provides some legal aid through their law school for housing matters.
posted by Diablevert at 8:15 PM on March 6, 2013 [3 favorites]

I am a landlord. I am also EPA RRP trained.

I am not a lawyer nor do I know MA state/local housing law regarding deposits. Whether you can get your deposit back will depend on the rules for deposits/earnest money in your jurisdiction.

There are some misconceptions about lead in this thread from my perception. Lead is not actually an OMGifoundleadgetridofit hazard. It's much like asbestos, in fact. Both asbestos and lead were commonly used in building for many decades; lead was banned in 1978. They are both, however, stable when undisturbed.

Now, we do know that both lead and asbestos have adverse health effects when they reach the blood/brain interface and the lungs, respectively. But in both cases, the substance is not actually floating in the air, but contained within a building material such as paint or siding or insulation. The problem for humans arises when these building materials are disturbed. Thus, the EPA tightened guidelines around lead a few years ago covering pre-1978 buildings, but these -- importantly -- apply specifically to renovations. The EPA rules pertain, therefore, to Renovation, Repair and Painting (RRP). Except in certain cases such as peeling paint, the rule does not actually require remediation (an expensive down-to-zero-exposure proposition). It only says that when renovations do occur, that rules are followed to eliminate the possibility of leaving lead dust in the air and increasing the exposure to the inhabitants.

I posit that a) your landlord followed the EPA rule as she understood it with regard to disclosure, and b) does not understand the rules with regard to renovations or repairs.

You state "The inspector found numerous lead problems." From your statement it is not clear what "lead problems" are, but I will guess that your third-party inspector did a number of swab tests that were sent to a lab, and many of the tests were positive for the presence of lead in, I continue to guess, paint. Please believe me when I say that I both understand your concern and insist that (caveats above) legally this is PROBABLY NOT a justification for breaking a lease. There are simply millions, perhaps tens of millions, of residence units in the US that will test positive on a swab test. (My RRP trainer is also, I should add, a consultant who does testing.) If it were necessary to spend $10K and up per housing unit that tests positive, half the landlords in the country would go bankrupt tomorrow. Again, I'm saying this is my understanding of the legal and scientific situation generally.

A short sidebar. There are two tracks that need to be distinguished here. Ordinary repairs and renovations under lead-safe certification are presumed to mitigate the risk from disturbing existing lead in building materials. Ordinary contractors, repairmen, service industry employees, and even homeowners and landlords can be lead-safe certified. The second track is now what I'm talking about, and what you seem to feel your landlord is responsible for, and that is "lead mitigation", "lead remediation", or commonly "lead abatement" -- which is a COMPLETELY SEPARATE level of certification and enormously more expensive. Your landlord probably reasonably fears she will now be responsible for this procedure before she can ever again rent this unit. Without knowing the "problems", myself, I can't say whether I would think this is true, but she probably does fear it, and you fear the apartment won't be inhabitable without it. Again, my guess is that your swab test was positive for lead in building materials, and my training leads me to understand that this is a common situation that does NOT require mitigation. What it does is simply alert residents and property owners that when renovations take place lead-safe procedures must be followed (they must, anyway, in pre-1978 structures) whenever anything larger than six square feet is disturbed.

In other words, if you have lead paint from before 1978 on trim (less commonly on wall surfaces), it has probably been painted over multiple times and is what is called "encased" and not considered a hazard, even to two-year-old toddlers. A crumbling rain of paint chips, on the other hand, would be (it's one of the most common issues historically), but I hope you wouldn't have signed the lease if you'd seen that.

I am not a doctor, I am not a lawyer, I am not a chemist, but I can tell you that my understanding is that if all you have is the presence of lead on a swab test, you probably have little reason for concern and can move into that unit. What the inspection told you was that care needs to be taken with regard to your children's contact with these swab-test-flagged surfaces (for instance, it may affect your choice of room for your children), and especially with regard to cleanliness and physical deterioration of these surfaces. You don't want your kids licking them or eating paint chips they find under the windowsill, so as the brochure states wipe them clean frequently and be sure to vacuum up debris that might contain lead. Don't let them play in soil outside and below windows, either. It is even possible for you to undertake minor projects where you mitigate some of these issues yourself (say, stripping the old paint), but you should know that this disturbance is probably increasing your and your toddlers' risk more than it simply being there in the first place, and that's why the EPA tightened the renovation rules.

Again, I suspect that information in this thread is incorrect and you do not have a legal reason to back out of the lease. The idea that the agent is somehow liable I find very unlikely. The vast majority of pre-1978 housing in this country would be unrentable if that were the case.
posted by dhartung at 11:19 PM on March 6, 2013 [13 favorites]

Best answer: Again, I suspect that information in this thread is incorrect and you do not have a legal reason to back out of the lease. The idea that the agent is somehow liable I find very unlikely. The vast majority of pre-1978 housing in this country would be unrentable if that were the case.

Respectfully, dhartung, I think you are very much incorrect with regard to Massachusetts. IANAL, but my understand is that the Massachusetts lead paint law both precedes federal EPA guidelines and exceeds them, and that Mass landlords are required to delead all windows and doors and the walls up to five feet if renting to a child under six, and that this deleading has to be certified. Further, real estate agents can definitely be held liable for lead paint law violations in Mass. See here and here. I don't know if the OP can officially break the lease, but I do think landlords are responsible for putting up the OP and her roomates while deleading goes on if she chooses to enforce, which I gotta guess would cost way more than $2,100.
posted by Diablevert at 3:53 AM on March 7, 2013 [11 favorites]

Best answer: Whether or not lead is harmful, the law in Massachusetts states that properties rented to people with children under the age of 6 must be certified as deleaded.

posted by sutel at 3:57 AM on March 7, 2013 [2 favorites]

Yes, I have some experience with the lead paint laws in MA and agree that dhartung is incorrect when it comes to the MA-specific laws, which are some of the most aggressive in the US. (Also the inspection methodology -- MA does not recognize most of the swab kits, and generally any inspection would be done with XRF and would cover all interior and exterior painted surfaces.)

The landlord is potentially in a whole crapton of trouble here. Licensed MA lead inspectors are required to file their reports with the state offices, so the State will have a record of this. (And I'd be very surprised if she found a MA lead inspector willing to go off the record. They could lose their license for that.)

I would actually recommend calling the State's lead program directly to see if they have any suggestions or referrals -- the relevant website. You should be able to call and explain the situation without giving them your address. They have seen this kind of thing before, and you can explain that while you understand you have the right to insist on deleading, you don't want to deal with an unstable landlord. (Not giving the address just keeps you out of this -- since the lead inspector will have filed a report with the State, they have her address already.)

These laws have been around since, like, the 1980s, so it's not like this is some big surprise for her.
posted by pie ninja at 4:18 AM on March 7, 2013 [2 favorites]

Response by poster: Yes, dhartung, I think the lead laws in MA are more difficult/costly for landlords than you might be aware of. (It was an XRF gun test, and I was present for the inspection. There are multiple areas of the house that have lead levels that are unsafe for children.)

The sticky issue here is that the landlady has not yet refused to delead. If she did, then we would have a legal reason to break the lease.

Instead, she is sobbing into the phone about how much money it's going to cost her, and we are offering to walk away, if she gives us our security deposit back. Which she does not want to do.

It does seem like she isn't aware of the laws. We tried to explain them to her, but she just cried some more at us and then freaked out and said she couldn't discuss it and hung up the phone.

We're also willing to move into the damn house, and force her to delead (as well as to clean up some of the other code violations, like a cracked wall). Should we just do that, and deal with a landlady who is unstable/hates us?
posted by woodvine at 5:15 AM on March 7, 2013

Our apartment was certified as deleaded (and our son's blood showed no exposure to lead) while we were living in it. In our case it took a certified painter to come in and paint the trim with special encapsulation paint. On the other hand, a couple I know had their apartment deleaded more seriously, with paint removal etc. They moved back after the deleading and at one year test their one year old's blood showed exposure to lead. Apparently that stuff can hang in the air for awhile after it's disturbed. When our guy with the fancy ray gun examined our apartment, he talked through what would need to be done for the house to pass Mass. laws. If your guy was talking about aggressive measures, keep in mind that disturbing lead paint might lead (haha...) to exposure.

I bet once you involve the law you'll get your deposit back. Sorry you are going through this.
posted by Shusha at 7:14 AM on March 7, 2013

Best answer: Do not, under any circumstances, move into a house that is being deleaded. The children absolutely should not be there while that is going on. Actually, I'd be very surprised if housing codes allowed families to live in houses going through the process. Any doctor will tell you the same thing. The risk of lead poisoning is just too great - I have a contractor friend who contracted lead poisoning and it is not pretty. Dhartung is absolutely right when he says that the paint is safer when it's undisturbed. Not safe, mind you, but safer. However, the minute they start scraping it up or even just replacing the woodwork, which might in the end be cheaper, the air will fill with lead dust that will settle on any and every surface. The house won't be safe until the work is all done and the entire thing has been cleaned down to the ground with HEPA vacuums and serious cleaning agents like TSP.

Don't mess around with lead. I went through this in the early 90s and didn't get it all dealt with fast enough. My son had elevated lead levels. Years later he developed serious learning disabilities, emotional issues and severe ADHD. There could well be no correlation but every day I wish I had been faster off the mark, more serious about it and more determined to utterly eliminate his exposure.
posted by mygothlaundry at 7:19 AM on March 7, 2013 [3 favorites]

Regardless of the outcome, don't move into the house. Don't rent from crazy.
posted by juliplease at 8:31 AM on March 7, 2013 [1 favorite]

In my own experience, landlord-induced stress is some of the worst, most debilitating stress there is. Home should be a place of safety and comfort, a refuge against the world. Feeling unsafe, anxious, resentful, or otherwise negative about or due to one's home is a fast track to deep and pervasive misery.

If I were in your shoes, I would go through the effort and temporary discomfort required to avoid becoming this person's tenant.
posted by Lexica at 7:05 PM on March 7, 2013

Response by poster: Update: after a few strongly-worded emails, landlady met us at Starbucks, vacated the lease, and returned the full deposit. Whew.

Back to square one, but at least I got my money back. Thanks, everyone.
posted by woodvine at 5:18 AM on March 8, 2013 [3 favorites]

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