State Laws Addressing Radon, Mold and Secondhand Smoke
Massachusetts
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 Sanitary Code was amended in 2023, including changes to provisions governing mold and moisture. 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. Some provisions in the Sanitary Code address mold and moisture problems indirectly. For example, the Code requires weathertight building and structural elements and requires mechanical ventilation if natural ventilation is not adequate to remove excess moisture. 105 CMR §§410.280, 410.530.
More directly, the Sanitary Code states that “no room or area in a residence may be used for habitation if it is subject to excess moisture,” which is defined as “the unwanted presence of moisture or water on permeable surfaces in a residence that occurs on a periodic, chronic or acute basis and presents a risk of mold growth.” 105 CMR §§410.010, 410.420. The Code broadly requires dwelling owners to maintain all buildings and structural elements in good repair; specifically, dwellings must be: “Protected from wind, rain and snow, and … watertight, free from excess moisture or the appearance of mold, and pest resistant….” In “the event of leaks and flooding, the owner shall ensure all surfaces have been dried within 48 hours from the time they are notified or the end of the event, whichever is sooner.”
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 §§410.600, 410.640. The state is authorized to enforce the code if local agencies fail to do so. M.G.L. t. 111, §127A.
The 2023 amendments to the Sanitary Code added a provision governing Excess Moisture Inspections. The Code expressly requires an inspector who discovers the existence of excess moisture or the appearance of mold during an inspection to investigate the potential sources, including plumbing leaks; structural defects which allow moisture to enter; improperly maintained mechanical or natural ventilation; and improperly maintained heating, air conditioning or ventilation ductwork. The Code states: “Environmental testing shall not be required to determine the existence of excess moisture or appearance of mold. If such testing is conducted, those results shall not be used as the sole determinant of the existence of excess moisture or appearance of mold.”
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 §§920-930. Under certain circumstances, the board of health may correct violations and recover expenses and any penalties. 105 CMR §410.940.
Massachusetts law also establishes 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, as well as rent withholding under certain circumstances. MGL c. 111, § 127L; MGL c. 239, §8A. The state landlord-tenant law and the state consumer protection law also establish potential legal resource for violations of the State Sanitary Code. See MGL c. 93A, §9(3); MGL c. 186, §19.