Bill H.1584

HOUSE DOCKET, NO. 2180 FILED ON: 1/17/2013

HOUSE . . . . . . . . . . . . . . . No. 1584

By Representative Rosa of Leominster and Senator Flanagan, a joint petition (accompanied by bill, House, No. 1584) of Dennis A. Rosa, Jennifer L. Flanagan and Josh S. Cutler relative to the rights and responsibilities of landlords and tenants in eviction proceedings. The Judiciary.

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act relative to landlord and tenant law.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 11 of chapter 186 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out the word “fourteen”, in line 2, and inserting in place thereof the following figure:- 3.

SECTION 2. Section 15B of said chapter 186, as so appearing, is hereby amended by striking out the words “and, (iv) the purchase and installation cost for a key and lock”, in lines 23 to 24, inclusive, and inserting in place thereof the following words:- (iv) the purchase and installation cost for a key and lock; and (v) the cost to purchase a credit, a criminal or an eviction report.

SECTION 3. Said section 15B of said chapter 186, as so appearing, is hereby further amended by striking out the word “thirty”, in line 26, and inserting in place thereof the following figure:- 10.

SECTION 4. Subsection (3) of said section 15B of said chapter 186, as so appearing, is hereby further amended by striking out clause (a).

SECTION 5. Said section 15B of said chapter 186, as so appearing is hereby further amended by striking out subsection (6) and inserting in place thereof the following subsection:-

(6) The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he:

(a) fails to deposit and hold any security deposit in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property

(b) fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any;

(c) uses in any lease signed by the tenant any provision which conflicts with any provision of this section and attempts to enforce such provision or attempts to obtain from the tenant or prospective tenant a waiver of any provision of this section;

(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property;

(e) fails to return, after deducting actual or estimated damages in good faith, what is owed to the tenant plus interest within thirty days after termination of the tenancy; or

(f) fails to send or give in person a receipt to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit.

SECTION 6. Section 3 of chapter 239 of the General Laws, as so appearing, is hereby amended by striking out paragraphs 3 and 4 and inserting in place thereof the following 2 paragraphs:-

The notice shall contain (1) the signature, full name, full business address and business telephone number of the officer; (2) the name of the court and the docket number of the action; (3) a statement that the officer will place any personal property remaining on the premises at the time the execution is levied in storage at a storage facility, and the full name, full business address, and business telephone number of the storage facility to be used; (4) a statement that the storage facility’s storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone number of such agency; (5) a statement that the storage facility may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4; and (6) a statement that the defendant should notify the storage facility in writing at the business address listed in the notice of any change in the defendant's mailing address. The notice referred to in this section shall be served in the same manner as the summary process summons and complaint and shall be filed in the court that issued the execution. For the purposes of this section and section 4, the term “storage facility” shall mean a shall mean a “self-storage facility” as defined in section 1 of chapter 105A, located in the commonwealth and within a 20 mile radius of the land or tenements from which the personal property is removed.

The officer shall select the storage facility identified in the notice described in the preceding paragraph in a manner calculated to ensure that the defendant's personal property will be stored within a reasonable distance of the premises at issue in the summary process action. The officer shall not select pursuant to this section a storage facility whom the officer knows or reasonably believes to be in violation of any provision of section 4.

SECTION 7. Said chapter 239 of the General Laws, as so appearing is hereby further amended by striking out section 4 and inserting in place thereof the following section:-

Section 4. (a) If an officer, serving an execution issued on a judgment for the plaintiff for possession of land or tenements, removes personal property, belonging to a person other than the plaintiff, from the land or tenements, he shall forthwith cause it to be stored for the benefit of the owners thereof. Such property shall be stored with the storage facility identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a storage facility of the defendant's choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property. The officer shall file with the court that issued the summary process judgment and provide to the defendant in hand, or if the defendant is not present at the time of execution by receipted mail to the defendant's last and best known address, a receipt containing a description of the goods removed or of the packages containing them, as well as name and signature of the officer.

(b) Any storage facility who accepts property for storage pursuant to this section: (1) shall file its current storage rates with the commissioner of public safety and shall not change such rates more than once annually, unless the commissioner of public safety or his designee gives prior written approval upon a showing of extraordinary circumstances; (2) shall not impose charges for storage under this section in excess of the rates filed with and not rejected by the commissioner of public safety at the time of service of the notice provided for in section 3; (3) shall not impose charges for storage under this section in excess of the fair market rates for storage facilities of similar quality in the warehouse's general locale; (4) shall not impose charges other than those for the actual storage of goods pursuant to this section, including, but not limited to, docking fees, warehouse labor fees, administrative fees, or other similar fees imposed in addition to the storage rates listed with the commissioner of public safety; (5) shall not impose minimum fees or otherwise charge storage fees for any period other than the period of actual storage; (6) shall credit toward the defendant's costs of storage any amount paid by the plaintiff or other third party in connection with the storage of the property in question; (7) shall send by first class mail to the defendant's last and best known address monthly statements of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest pursuant to this section; and (8) shall insure the defendant's property against fire and theft in the amount of no less than $10,000. A storage facility who accepts goods under this section is liable for any loss or injury to the goods caused by his or her failure to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances but unless otherwise agreed or provided in this section, the storage facility is not liable for damages which could not have been avoided by the exercise of such care. No person shall be required to release a storage facility from liability as a condition of release of any stored property.

(c) The plaintiff in the summary process action shall pay the costs of removing the property to the place of storage. The plaintiff shall be entitled to reimbursement by the defendant for any costs and fees so advanced.

(d) Upon receipt of personal property under this section, a storage facility shall forthwith, but no later than 7 days after the removal of the property from the land or tenements at issue in the summary process action, issue a receipt that complies with the requirements of section 7-202 of chapter 106. Such receipt shall contain as additional terms: (1) a statement that the storage facility may sell any property unclaimed after six months and retain that portion of the proceeds necessary to compensate the storage facility for lawful storage fees actually accrued as of the date of the auction, except as provided in this section; (2) a list of the storage facility’s storage rates and a statement that such rates may be verified by contacting the commissioner of public safety, as well as the address and telephone number of such agency; (3) a conspicuous statement that the defendant should notify the the storage facility in writing at the business address listed in the notice of any change in the defendant's mailing address; (4) a description of the applicable procedures for reclaiming the stored property, including, but not limited to, a statement that the defendant is entitled to reclaim items of personal or sentimental value but limited auction value once during the period of storage without payment of any fee and that the defendant shall be entitled to purchase individual items at any auction held to enforce the storage facility's lien created under this section and an identification of the publication in which any such auction will be advertised pursuant to subsection (f) of section 7-210 of said chapter 106. A duplicate copy of the warehouse receipt shall be kept on file at the place of storage and the original shall be served by receipted mail or hand delivery to the defendant at his last and best known address. The storage facility shall keep separate the goods covered by each receipt so as to permit at all times identification and delivery of those goods. A storage facility who fails to comply with the requirements of this subsection shall be liable for damages caused by the omission to a person injured thereby.

(e) Any storage facility who accepts personal property pursuant to this section shall have a lien thereon for charges for storage, insofar as such charges are imposed in accordance with this section. The lien shall not be enforced by sale or disposal of the property until it has been kept in storage for at least 6 months. Thereafter, the storage facility may enforce the lien in the manner provided for in subsection (2) of section 7-210 of chapter 106, except as otherwise provided in this section. The defendant shall be entitled to postpone the sale or disposal of his property for 3 months upon payment of one half of all storage fees incurred plus costs reasonably incurred in preparation for their sale pursuant to law. The storage facility may satisfy its lien from the proceeds of any sale or disposition under this section but must hold the balance for delivery on the demand of any person to whom it would have been bound to deliver the goods. A storage facility’s failure to comply with any of the requirements of this section shall result in the forfeiture of the lien.

(f) The defendant may access his stored property once, without charge or payment of storage fees, either to inspect the property or to remove items having primarily personal or sentimental value, or both. Items having primarily personal or sentimental value, shall include but not be limited to photographs, passports, documents, funeral urns, and the like. All personal property stored under this section may be reclaimed at any time upon payment of all storage fees lawfully owed by the defendant. If the property is sold at auction, the defendant shall be entitled to purchase the property in bloc or in parcels, regardless of the terms of the public sale. The failure of any third party to pay monies owed by him to the storage facility shall not affect the rights of the property owner to reclaim property under this subsection.

(g) A storage facility who violates this section shall pay a civil penalty of not more than $5,000, in an amount to be determined by the commissioner of public safety after notice and an opportunity for an adjudicatory hearing under chapter 30A. The commissioner or his or her designee may at any time conduct an inspection of a storage facility storing goods under this section for the purpose of assessing compliance with applicable health and safety codes and the requirements of this section. The commissioner may reject the rates filed by a storage facility for storage pursuant to this section if the commissioner determines that such rates are not commercially reasonable or otherwise violate this section. The failure of the commissioner to reject a storage facility’s rates shall not create a presumption that such rates are commercially reasonable for purposes of liability under chapter 93A or this section.

(h) Notwithstanding any civil penalty imposed pursuant to subsection (g), the defendant may petition the court in which the summary process action was heard for damages or injunctive relief in connection with any violation of this section. A violation of this section shall also be a violation of section 2 of chapter 93A.

Name:	District/Address:	Date Added:
Dennis A. Rosa	4th Worcester	1/17/2013
Jennifer L. Flanagan	Worcester and Middlesex	1/17/2013
Josh S. Cutler	6th Plymouth