Rights and responsibilities regarding utilities and oil tanks
See Generally Pages 21-22 of AG MHC Guide
a. Utility Systems Maintenance. A community owner/operator is responsible for supplying, maintaining, and repairing all equipment and systems that provide utilities up to the point of connection at each manufactured home. The required utilities include drinkable water, a functioning sewage disposal system, electricity, and natural gas or other heating fuel. The owner/operator cannot charge for the use of any utility unless the utility is individually metered and the occupancy agreement provides for such a charge. Even if the utilities are individually metered, the owner/operator remains responsible for supplying, maintaining, and repairing all equipment and systems that provide utilities to the point of connection at the manufactured home. 940 C.M.R. 10.05(4)
b. Utilities Inside the Home. Damage to, or malfunction of, any utilities inside the home is the home owner’s responsibility. Although the community owner/operator is generally responsible for utilities and connections outside the home, the resident may be responsible for any damage that the resident negligently or purposely caused to these systems or connections (e.g., if the resident stops up a sewage disposal system through improper disposal). 940 C.M.R. 10.05(4)(d). Finally, the community owner/operator may require residents to upgrade the interior plumbing or wiring systems only to the extent that he or she can demonstrate the need for the upgrade to ensure the health and safety of residents, and then only on a non-discriminatory basis.
c. Required Utilities and Payment Obligations. Under the Attorney General’s Manufactured Housing Community Regulations and the State Sanitary Code, the community owner/operator must supply, maintain, and repair equipment and systems which provide water, a functioning sewage disposal system, electricity, and natural gas or other heating fuel up to the point of connection at each manufactured home. 940 C.M.R. 10.05(4); 105 C.M.R. 410.351. The resident cannot be directly charged for his or her use of any utility unless there is individual metering by a utility company, and the occupancy agreement provides for such a charge. 940 C.M.R. 10.05(4)(b)(3) and 10.05(4)(e). The community owner/operator, however, can recover the cost of providing utilities to the resident indirectly through rent, as long as such costs are distributed equally among all households. 940 C.M.R. 10.05(4)(c).
d. Utility Shutoffs. The community owner/operator may not purposefully shut off any of the utilities, for any reason, without the resident’s permission. M.G.L. c. 186, § 14; 940 C.M.R. 10.05(f).
e. Oil Storage Tanks. In recent years, community owner/operators have become concerned about their potential legal liability stemming from the environmental risks posed by leaking oil storage tanks as well as these tanks’ appurtenance and other components. The Attorney General’s Manufactured Housing Community Regulations require that the cost of removing, replacing or repairing an oil storage tank and its appurtenances and other components should be initially incurred by the community owner/operator, who is usually better able to pay for or finance these costs upfront. Thus, residents may not be charged directly for the removal or replacement of oil storage tanks or their appurtenances and other components, but the community owner/operator may eventually recover such costs as capital improvements, in the manner allowed by law. 940 C.M.R. 10.03(2)(n). This rule applies whether the tank is above or below-ground.
Some community owner/operators try to avoid these costs by claiming that the residents have purchased their above-ground oil tanks. Ownership of the tank is irrelevant as it is a utility system that attaches to the point of connection of the home and is, therefore, the owner/operator’s responsibility to maintain, repair, remove, and replace as necessary. This argument also often fails because purchasing the tank may have been an impermissible condition of entry into the community rather than arms-length transaction.
There is one exception to the general rule: where a resident’s negligence has caused the environmental concern or risk posed by the oil tank, the resident may be held directly responsible for removing or replacing it. 940 C.M.R. 10.03(2)(n).
Several Massachusetts trial courts have applied this regulation and have agreed with the Attorney General’s interpretation of it. You can access those decision by clicking on the following links:
f. Natural Gas. The community owner/operator is responsible for providing homes with a natural gas connection, provided such a connection is economically reasonable. 940 C.M.R. 10.05(4)(a)(2). In general, it would not be economically reasonable to require a natural gas connection in communities that provide oil heat facilities in a manner that complies with applicable health, safety and environmental laws.
g. Central Fuel Systems. Although generally residents are free to use a fuel dealer of their choosing, if the community has a central fuel and gas meter system, the community owner/operator may limit residents’ ability to choose a fuel dealer. However, residents’ fuel charges may not exceed the average prevailing price for such fuel in community’s locality. M.G.L. c. 140, § 32L(3A); 940 C.M.R. 10.05(2).
h. Water. The community owner/operator is responsible for supplying and paying for ordinary household needs for drinkable water that is sufficient in both supply and pressure. The community must be connected to a public water supply system, or an alternative source that does not endanger residents’ health. 940 C.M.R. 10.05(4)(b)(1). Insufficient water supply can sometimes result when a community owner/operator increases the number of homesites in a community without upgrading the water system at the same time. Contaminated water can often result from inadequate sewage disposal systems. Should such conditions occur in a community, the owner/operator must correct them immediately.
i. Sewage Disposal. The community owner/operator must ensure that the households are connected to a sanitary sewage disposal system and pay for any resulting usage cost. 940 C.M.R. 10.05(4)(b)(2). If it is not practicable for the community to be connected to a public sewerage system because of distance or ground conditions, then the community must be connected to another means of sewage disposal that complies with the requirements of 310 C.M.R. 15.00. Many communities use septic tanks, which have a limited lifetime and sometimes require periodic pumping. The community owner/operator is responsible for ensuring that, where necessary, periodic pumping takes place and inadequate tanks are replaced. In addition, if the community owner/operator adds new homesites to the community, he or she must ensure that existing sewage disposal systems are not overburdened.
j. Paying for Failed Utilities. Although community owner/operators generally may recover utility repair costs as capital improvements, there is one important exception: where the community owner/operator failed to upgrade or repair sewer, water, gas or electrical systems to meet existing minimum standards required by law. 940 C.M.R. 10.03(2)(m).
The law presumes that residents pay rent in exchange for a lot and common areas and utilities that meet the minimum standards required by law. Thus, the community owner/operator is expected to maintain sewer, water, gas or electrical systems “up to code.” The costs of maintaining utilities to meet code requirements generally may be passed through to tenants. As long as it is allowed for in the occupancy agreement, such a pass-through of costs applies to both individuals who are already tenants when the capital improvement begins and new tenants who, upon entering the community, receive notice of charges for ongoing capital improvements.
The owner/operator’s right to pass through such costs, however, has certain limitations. He or she may not pass through such costs where the common area or utility is in violation of the applicable law. That is, if the utility system fails to meet an existing legal code or standard, the owner/operator must himself bear the costs of bringing the system up to code. However, when the owner/operator has to upgrade or make improvements because the legal standard has changed, he or she may pass on such costs to the tenants. 940 C.M.R. 10.03(2)(m).
k. Who to Call Concerning Utility Failure. If a resident has concerns that the sewer, water, gas or electrical systems have failed and pose health risks, the residents should notify the community owner/operator and if necessary, the local board of health, or the state Department of Environmental Protection.
l. Television. It is generally unreasonable to flatly prohibit television antennae or satellite dishes, as such a rule could substantially interfere with or prevent television reception. The community owner/operator also may not restrict access to a cable television service offered by a licensed municipality. M.G.L. c. 166A, § 22. In addition, the community owner/operator may not unreasonably restrict a resident’s access to a satellite television transmission service. 940 C.M.R. 10.05(5). A community owner/operator may, however, place reasonable restrictions on the size, type, or location of such equipment, in order to satisfy aesthetic standards. Finally, if a resident opts not to have cable or satellite television service, the community owner/operator may not require the resident to receive or pay for such service. 940 C.M.R. 10.05(6).
See Generally Page 16 of AG MHC Guide
Pet ownership can enhance both happiness and security for many people. In addition, pet ownership can be of critical importance to a person who is elderly, handicapped, or lives alone. At the same time, pets can be irritating or intimidating to others. A dog who barks incessantly, runs freely, gets into garbage, or leaves droppings in common areas or yards, is not a welcome member of a community.
a. Service Animals. The community owner/operator may not restrict seeing-eye dogs or other service animals that are necessary to assist a disabled resident.
b. Indoor Pets. The community owner/operator may not restrict pets that live solely within the home, so long as they do not create a disturbance to other tenants. 940 C.M.R. 10.04(10). Examples of a such a disturbance might include: a pet that frequently barks and disturbs others; or a pet which would pose a substantial danger to other residents if it escaped outside; and whose owner has not taken reasonable precautions to ensure against such a problem.
c. Outdoor Pets. The community owner/operator may reasonably restrict pets that go outside the home. 940 C.M.R. 10.04(10). For example, it is reasonable to require outdoor animals to be restrained by a leash or runner; to be picked up after, both; on and off the lot; and to be monitored so that they do not disturb the neighbors or agitate other outdoor pets.
d. Prohibiting Certain Pets that Go Outside. If an owner/operator’s insurance policy for the community contains restrictions on pets, the owner/operator may include the following statement in the community rules regarding pets: “Our insurance liability policy restricts the following pets: [list], and they may not be brought into the community.” If the owner/operator wants to include this language in the community rules, her or she must include a letter from the owner/operator’s insurer explaining that the presence of specific pets or breed in the community would adversely affect the owner/operator’s policy in addition to the community’s proposed rules submitted to the Attorney General’s Office and the Department of Housing and Community Development.
e. Pet Fees. The community owner/operator may not charge any type of pet fee or rent for an indoor pet or a service animal. A fee for any other pet may be charged only if the fee directly relates to the actual cost of providing a pet service or facility. 940 C.M.R. 10.03(2)(g).
Fees, fines, charges, and assessments
See Pages 4, 9, 10, & 26 of AG MHC Guide
1. In General. To levy any fees. fines, charges, and assessments upon his or her residents, the community owner/operator must disclose, a written list of all usual fees, fines, charges, and assessments to: prospective tenants; any existing tenants whose current tenancy is being amended, renewed or extended; and approved subtenants. Additionally, if a resident requests it, the owner/operator must provide a statement of fees, fines, charges and assessments over the past 12 months, and an estimate for the next 12 months. M.G.L. c. 140, § 32P; 940 C.M.R. 10.03(4)
2. No Unilateral Changes. An occupancy agreement cannot be changed during the period specified in the agreement, unless the residents and the community owner/operator both agree to do so. During the period of the agreement, the community owner/operator may not change the agreement about rent, impose a new fee or fine, or change any other terms or conditions of the tenancy (e.g. switching heating fuel from oil to natural gas or vice versa) except to the extent specifically provided either in the occupancy agreement or under any applicable local rent control law. 940 C.M.R. 10.02(8).
3. Additional Fees and Fines. Any other fees and fines that a community owner/operator charges must be separately disclosed in writing at least 72 hours before the signing of the occupancy agreement, or before the tenancy begins or is renewed, whichever comes first. 940 C.M.R. 10.03(4)(b). The owner/operator may not recover any fee, fine, charge, and assessment that is not separately listed in the occupancy agreement (and/or written disclosures).
4. New Fees for Old Services. During the term of the occupancy agreement, the community owner/operator cannot start charging a separate fee for a service or facility that a resident previously received without charge. 940 C.M.R. 10.03(2)(o).
5. Per Capita Fees. The community owner/operator is prohibited from charging per capita -- or per person -- fees for any new household members except under certain circumstances. Any such fee must be based on actual additional costs imposed on the community owner/operator as a direct result of the size of the household. For example, increased water, sewer and trash removal charges are the types of costs that may justify a per capita charge. In addition, the total amount of rent charged cannot exceed that paid by other households in the community with the same number of adult residents (over age 18). 940 C.M.R. 10.03(2)(e).
6. Fees for Special Services. If a resident requests that the community owner/operator provide, and he or she actually does provide, a special service not otherwise required, he or she may charge the resident for that service. 940 C.M.R. 10.03(2)(b).
7. Late Rent Penalties. If a resident pays his or her rent late, the community owner/operator may attempt to charge a late fee. He or she can do so only under certain circumstances: the written occupancy agreement or lease must specifically allow for a late rent fee, and the amount charged must be reasonably intended to compensate the community owner/operator for the delay in payment. In any case, no late rent fee may be charged unless and until the payment is at least 30 days overdue. 940 C.M.R. 10.03(2)(i).
Owner/operators’ and residents’ maintenance responsibilities
See Pages 14-16 of AG MHC Guide
1. Community Owner/Operator’s Maintenance Responsibilities
a. Common Areas. It is the community owner/operator’s responsibility to keep all common areas and facilities clean, safe, in good repair, and in compliance with any applicable health and safety laws. 940 C.M.R. 10.05(7); 105 C.M.R. 410.602. This requirement includes plowing and maintaining the community common areas and roadways and providing and paying for certain safety features such as lighting, where necessary.
b. Garbage Pickup. A community owner/operator must provide a system for the final pickup of garbage and rubbish. The community owner/operator may establish any reasonable schedule for garbage pickup and may require compliance with community rules regarding storage of garbage for pickup. Residents may also be required to comply with recycling rules imposed by the town in which the community is located. The community owner/operator cannot impose a direct fee for the pickup of recycled materials, but these costs may be recovered through non-discriminatory rent increases. 940 C.M.R. 10.05(8).
c. Road Maintenance. A community owner/operator is responsible for making sure that the community roadways are safe and in good repair, and is responsible for removing debris, filling potholes, and snowplowing. 940 C.M.R. 10.05(9).
d. Hazardous Conditions. A community owner/operator is responsible for removing or repairing naturally occurring hazardous conditions that an appropriate governmental authority determines pose a risk to the safety of tenants or their homes, for example, hazardous trees or tree limbs. 940 C.M.R. 10.05(10).
e. Utility Systems Maintenance. A community owner/operator is responsible for supplying, maintaining, and repairing all equipment and systems that provide utilities up to the point of connection at each manufactured home. The required utilities include drinkable water, a functioning sewage disposal system, electricity, and natural gas or other heating fuel. The Owner/operator cannot charge for the use of any utility unless the utility is individually metered and the occupancy agreement provides for such a charge. Even if the utilities are individually metered, the owner/operator remains responsible for supplying, maintaining, and repairing all equipment and systems that provide utilities to the point of connection at the manufactured home. 940 C.M.R. 10.05(4). For a lengthier and more detailed discussion about utilities and oil tanks, please see the Rights and Responsibilities regarding Utilities and Oil Tanks section above.
f. Upkeep of Permanent Elements to the Homesite and the Community. It is the community owner/operator’s responsibility to maintain, repair, and replace the cement slab under the home as well as any lamp posts on the homesite and repave driveways and sidewalks when necessary, as well as any other permanent elements of the lots or the community. 940 C.M.R. 10.04(5)(f).
g. Compliance with Sanitary Standards. When the local board of health issues the annual license to a manufactured housing community, the Department of Environmental Protection (“DEP”) receives notification from the board and is authorized to then inspect the manufactured housing community to ensure that the water supply and sewerage disposal system are sanitary. A manufactured housing community has 30 days in which to correct any noncompliance. If the community fails to comply, the local board of health shall revoke or suspend the license until compliance occurs. M.G.L. c. 140, § 32B. The board of health is further required to inspect all communities occasionally to ensure that the communities follow sanitary requirements. The board may suspend or revoke a license for noncompliance. M.G.L. c. 140, § 32C. A daily fine of $100 is imposed for each day a community remains unlicensed or in violation of the Act. M.G.L. c. 140, § 32E.
2. Tenant’s Maintenance Responsibilities
a. Upkeep of Home’s Exterior and Lot. The community owner/operator can require residents to keep their home’s exterior and lot neat and in good repair. 940 C.M.R. 10.04(5)(a). He or she must be specific in the community rules, however, about what is required in this respect.
b. Compliance with Community Aesthetic Standards. A community owner/operator may set “aesthetic standards” governing the look or style of the site and the home’s exterior. Aesthetic standards must be “reasonable” -- that is, not overly burdensome or expensive.
1. Specificity required. Any community rule that requires compliance with aesthetic standards must be specific. A rule requiring simply to keep the home’s exterior in good repair is too vague. An acceptable rule would require, for example, maintenance of the exterior of the home clean or free from visible cracks, rust, or peeling paint, or keep the lawn from becoming overgrown.
2. Rules Requiring Major Changes in the Style of the Home. In general, aesthetic standards must be applied consistently throughout the community and disclosed before a resident enters the community. 940 C.M.R. 10.04(5)(b). A resident should not be required to make major changes to the home after the resident has been living in the community for some time. Newly adopted aesthetic standards requiring such changes generally are unreasonable, except where they apply only to new homes being brought into the community.
3. Pre-1976 Homes. A community owner/operator may not force a tenant who owns a pre-1976 home to change it in a way that is impractical due to the design or poor physical condition of the home. 940 C.M.R. 10.04(5)(b).
c. Interior of Home. The resident is responsible for making sure that the interior of the home complies with governmental health, safety, and other laws. Only appropriate governmental authorities (e.g., the local board of health or fire department), however, and not the community owner/operator, may enforce these laws. 940 C.M.R. 10.04(6).
d. Utilities Inside the Home. Damage to, or malfunction of, any utilities inside the home is the resident’s responsibility. Although the community owner/operator is generally responsible for utilities and connections outside the home, a resident may be responsible for any damage that he or she negligently or purposely cause to these systems or connections (e.g., if a resident stops up a sewage disposal system through improper disposal). 940 C.M.R. 10.05(4)(d). Finally, the community owner/operator may require residents to upgrade the interior plumbing or wiring systems only to the extent that he or she can demonstrate the need for the upgrade to ensure the health and safety of residents, and then only on a non-discriminatory basis. For a lengthier and more detailed discussion about utilities and oil tanks, please see the Rights and Responsibilities regarding Utilities and Oil Tanks section above.
e. Failure by Tenant to Maintain Home’s Exterior or Lot. If a resident fails to maintain his or her lot or home as required by reasonable community rules, then the community owner/operator may have the necessary work done and charge the resident for the maintenance. The community owner/operator cannot do this, however, unless the resident requests such work, or the work is accomplished in compliance with 940 C.M.R. 10.04(5)(d)(1)-(4). In particular, the community owner/operator cannot charge for such maintenance work unless both the occupancy agreement and the community rules allow it, and the owner/operator provides the resident with written notice of the specific work required, the amount the owner/operator will charge, and all other information detailed in 940 C.M.R. 10.04(5)(d). If a resident receives this notice and does not have the work performed, then the community owner/operator can have the work performed at the resident’s expense no sooner than 10 days from the date the resident receives the notice.
See Pages 17 of AG MHC Guide
Residents of a manufactured housing community, have the right to invite guests into their homes. Their community owner/operators may not attempt to restrict who is permitted to visit the home, how long they may stay, or when they may visit. 940 C.M.R. 10.04(4).
b. Guest Registration Prohibited. A community owner/operator may not require the registration of guests. 940 C.M.R. 10.04(4).
c. Retirement Communities. In a qualified retirement community, restrictions on underage guests and their length of stay, activities, and access to facilities may be reasonable, even though such restrictions would not be permissible in a family community.
d. Guest Fees. The community owner/operator may not charge a fee for guests, with one exception. If permitted under the written occupancy agreement, the community owner/operator may charge a user fee for guest’s use of a community recreational facility or storage area, so long as the fee reasonably relates to the cost of providing and maintaining the facility. 940 C.M.R. 10.03(2)(h).
e. Guest Parking. If the community has a guest parking lot, guests can be required to park there. Otherwise, guests cannot be unreasonably restricted from parking at the lot or on adjacent roadways. 940 C.M.R. 10.04(7).
Tenant’s right to privacy and control over the leased homesite
See Pages 19-20 of AG MHC Guide
Residents of a manufactured housing community are generally accorded the same privacy and control over their homesite as if they had rented an apartment or purchased a condominium or site-built home in a development. Community owner/operators have a legitimate right to enact rules to protect the health, safety, and quiet enjoyment of the community, and to keep the community neat and clean. However, rules that purport to govern the conduct of a homeowner within his or her own home, or on his or her leased lot -- where safety, health or aesthetics are not at issue -- are usually unreasonable.
a. Access to the Home by the Community Owner/Operator. The community owner/operator may not enter the home at any time without the resident’s prior written consent, which may be revoked at any time. The written consent cannot be contained in a lease, occupancy agreement, inspection report, or other such general document, but must be set forth specifically in a separate document which deals with no other subjects. 940 C.M.R. 10.03(8)(a).
b. Access to the Homesite by the Community Owner/Operator. In general, the community owner/operator may not enter upon a leased lot without the resident’s permission. He or she may enter the site without permission only to check if it has been abandoned, inspect it, show it prior to re-leasing it, or make repairs in accordance with 940 C.M.R. 10.04(5)(d).
Normally, before entering onto the lot, the community owner/operator must give “reasonable” notice -- i.e., 24 hours’ notice -- unless there is an emergency that creates an immediate threat to the property or tenant safety. 940 C.M.R. 10.03(8)(b). See M.G.L. c. 186, §15B(1)(a)(i), (ii) & (iii).
c. Control over the Interior of the Home. Residents have the right to control the interior of their own home. Thus, it is generally unreasonable for the community owner/operator to impose rules relating to interior decorating, interior equipment or maintenance, activities inside the home, or other aspects of the residents’ personal lives. 940 C.M.R. 10.04(6). The owner/operator may regulate conduct that may have a negative effect on other community residents. Thus, it is generally reasonable to limit noise coming from the home during certain hours, regulate residents’ disposal of waste into a community sewage disposal system, or restrict fire hazards.
d. Occupancy. The community owner/operator may not restrict the number of occupants of a home beyond any applicable and valid restrictions in local, state or federal law. 940 C.M.R. 10.03(1)(a). Occupancy restrictions may be invalid if they have the effect of discriminating unlawfully. Examples of such unlawful discrimination would be restrictions which, in general access communities, have the effect of denying housing to families with children. Also, restrictions that result in denial of housing to individuals with disabilities may also be impermissible. In general, according to the standards of the United States Department of Housing and Urban Development, it is reasonable to allow no more than two persons per bedroom, unless such a restriction, as applied, would result in impermissible discrimination.
e. Control over the Leased Homesite. Just like an apartment renter or a site-built homeowner, residents in a manufactured housing community are entitled to use their leased homesite in any reasonable way. Thus, although the community rules may address important concerns related to upkeep or aesthetics, residents cannot be subjected to intrusive, burdensome, or arbitrary rules governing the lot. See M.G.L. c. 140 § 32L(1). Examples of such impermissible rules may include, in family communities, prohibitions on children’s riding bicycles, or, in all communities, banning the storage of items under the home or in a shed.
f. Additions or Modifications. If a resident plans to add to or modify his or her home or site, the community owner/operator may reasonably require the resident to submit proposed plans to him or her in order to ensure that aesthetic standards will be met. However, so long as the proposal complies with local building codes and setback requirements, complies with the community’s aesthetic standards, and creates no significant problem for neighboring lots, the community owner/operator should not withhold approval. In general, it is unreasonable to prohibit a homeowner from making necessary modifications -- such as a ramp, widened doorway, or handrails -- for accommodating a disabled household member. See 940 C.M.R. 10.03(1)(c).
g. Non-Residential Use of the Home or Leased Homesite. In general, non-residential activities in the home or at the homesite are permissible, so long as they are consistent with using the home as a residence, comply with local zoning and other laws, and do not substantially disrupt the residential character of the community. For example, yard sales are generally permissible, but the community rules may reasonably restrict when, where, or how they are held. Home offices are also generally permissible, although if the business causes a significant increase in the number of cars traveling through the community, it may not be reasonable. 940 C.M.R. 10.04(8).
h. Storage Beneath the Home and on the Lot. If a resident does not create a fire hazard or aesthetic problem, he or she should be allowed to store belongings under their own home or in a storage shed on the lot.
i. Right to Choose Sellers and Suppliers. Residents have the right to choose who will perform work on their homes, supply materials or provide any goods or services needed, such as fuel, furnishings, goods, services, or accessories. The community owner/operator may not limit a resident to a particular supplier or group of suppliers, but he or she may require such vendors to comply with applicable laws and reasonable community rules, including reasonable insurance requirements (a “reasonable insurance requirement” means an amount and type of insurance coverage that is reasonably related to the nature, scale and risk of potential loss, and does not exceed the prevailing average amount or type of coverage that is customarily required of suppliers of the particular good or services in the area. 940 C.M.R. 10.01). A community operator may also restrict residents from using a particular supplier who has been the subject of complaints to the AGO, the Better Business Bureau, or applicable government agencies. 940 C.M.R. 10.05(1). The community owner/operator may not, directly or indirectly, charge, demand or receive any fee, amount, “kickback,” or other consideration from any supplier. 940 C.M.R. 10.05(3). Finally, if the community owner/operator offers to perform work or provide materials, he or she must also inform the resident in writing of his or her right to obtain such goods and services from other providers. 940 C.M.R. 10.05(1)(b).