A new ruling from the state’s Supreme Judicial Court (SJC) will leave Massachusetts landlords free to lease their apartments to as many tenants as they please so long as they provide enough living and bedroom space to meet sanitary and zoning codes, legal experts said.
“This is pretty big,” said Rich Vetstein, principal of the Vetstein Law Group in Framingham and author of the Massachusetts Real Estate Law blog. “Basically they’re saying it’s legal to rent to four or more unrelated people in a single dwelling unit provided that it meets the sanitary and building code.”
The SJC handed down the ruling Wednesday morning in a case involving a regulation, passed by the city of Worcester, which defined any apartment inhabited by four or more unrelated tenants as a “lodging house.” Lodging houses and other institutional housing like dorms, frats, and half-way houses are subject to more stringent building codes, requiring for example full-building sprinkler systems. In 2009, the city of Worcester cited two apartments owned by College Hill Properties under the law, demanding that the tenants vacate the property.
The Worcester Housing Court and the Appeals Court had both come down in favor of Worcester, fining the landlord. But the SJC reversed the decision and wiped out the fines, saying that there’s a clear legal distinction between “lodgings,” and apartments, and that using Worcester’s interpretation of the Lodging House law would lead to absurd results.
“Construing ‘lodgings’ as the city suggests would lead to absurd results and selective enforcement,” the court wrote, pointing out that under the city’s rules a three-bedroom apartment occupied by four college students would count as “lodgings” while the exact same apartment occupied by five siblings or a seven-member family would not.
“While we recognize that the city seeks to protect student safety, and apparently regards the apartments at issue here as being the equivalent of dormitories, such concerns are better addressed through enforcement of applicable zoning ordinances and provisions of the sanitary and fire safety codes,” the judges wrote.
According to Vetstein, the court’s ruling could invalidate housing code regulations such as Boston’s, which prohibits more than four undergraduates from inhabiting the same apartment. “This suggests that as long as it meets base [regulations on square footage] which is not very much, the landlords are going to be able to pack people in. Which is exactly what Mayor Menino and the city of Boston have been trying to prevent,” he said.
Boston Law Could Stand
Other attorneys disagreed, saying that Boston’s regulation might stand if the city can prove it is serving a legitimate public purpose by discriminating against students as a class when it comes to housing.
Zoning regulations to limit or restrict student housing “have been enacted across the country, and nobody has found them to be unconstitutional,” said Paul F. Alphen, a principal of Westwood-based Balas Alphen & Santos, P.C. and a member of the Zoning and Land Use Committee for the Real Estate Bar Assoc., who has studied zoning regulations on student housing. “I’m not sure this case is a message to landlords as much as it is a message to the city that they can’t just rely on a 100-year-old law that was intended for a completely different purpose.”
Legal experts contacted by Banker & Tradesman were not aware of any current case law which challenged the legality of Boston’s zoning code, passed five years ago.
Following a fire in Allston last month which killed a Boston University student and injured nine other tenants, 19 tenants were found to be inhabiting a two-family home. The landlord in that case, Anna Belokurova, was cited by the city’s Department of Inspectional Services for improperly converting the basement of the building into living space without permits.
However, according to real estate records provided by The Warren Group, publisher of Banker & Tradesman, the home at 87 Linden St. was assessed as a two-family property with 2,962 square feet of living space and nine bedrooms — potentially within sanitary code limits, which require 150 square feet of living space for the first tenant, and 100 square feet for each additional person.
Regardless of whether the law invalidates zoning restrictions on student housing, the case will provide considerable relief to landlords, who feared the prospect of having to make costly upgrades to their properties.
“We are really concerned about that case,” said Greg Vasil, CEO of the Greater Boston Real Estate Board. “They wanted to regulate all apartments like rooming houses, and we argued that it would be totally unfair to have landlords across the state suddenly have their apartments [reclassified] … it would change their business model totally.”
Email: csullivan@thewarrengroup.com
