The past year or so has brought a number of changes to the landlord tenant laws in Maine, including a round of amendments that became effective September 28, 2011. The notable changes affecting residential leases and rental properties are summarized below.
Termination of Leases Without Termination or Notice Language
Leases without specific termination or notice language may now be terminated with proper notice. This change was the result of a delayed reaction to an almost 30-year-old Law Court case, Rubin v. Josephson, 478 A.2d 665 (Me. 1984). The Rubin case held that, when a residential lease does not contain termination language, the landlord may not use the tenancy-at-will provisions of state law to terminate the lease. The new law overturned this decision. Although the bill for this amendment was entitled, “An Act to Provide a Remedy to Property Owners When a Tenant Defaults on a Lease,” the law provides relief to both landlords and tenants with leases that do not contain termination provisions or notice language. Under the new law, a landlord may terminate a lease with 7 days’ notice and appropriate for-cause grounds, even if the lease does not contain language providing for termination in such circumstances. Similarly, a tenant may terminate a lease lacking termination language upon 7 days’ notice to the landlord in cases where the landlord has materially breached a provision of the lease. 14 M.R.S.A. §6001(1-B).
Although the amendment attempts to “remedy” problems with terminating certain leases, unfortunately the statute does not automatically fix all problems with leases not containing termination provisions. If you are going to use a lease, you may wish to have an attorney draft or review your existing document to ensure that it protects the landlord in the event of default.
Presumption of Retaliation in Eviction Proceedings
Under Maine’s forcible entry and detainer (eviction) laws, a landlord evicted a tenant in retaliation if that tenant exercised certain rights or complained about habitability issues or code violations in the six month prior to the eviction action. The new law provides added protections for landlords evicting tenants within the six months following a tenant’s complaints. For example, the amended law provides that presumptions of retaliation do not apply if the eviction “is brought for failure to pay rent or for causing substantial damage to the premises … unless the tenant has asserted a right pursuant to §6026 [regarding dangerous conditions requiring minor repairs]”. 14 M.R.S.A. §6001(3). In addition, this section makes it clear that the presumption will only apply to housing complaints made in good faith “for which there is a reasonable basis” and only to complaints filed “prior to [the tenant’s] being served with an eviction notice.” 14 M.R.S.A. §6001(3)(E). There is a similar amendment to the retaliation presumption when a tenant exercises his rights under Maine’s new bedbug law (discussed below).
Landlords should be careful when evicting tenants who have recently made a complaint based on any of the enumerated sections, and should discuss the situation with legal counsel prior to doing so.
New Affirmative Defense in Eviction Proceedings
The amended law sets forth a new affirmative defense that a tenant may raise at an eviction hearing in cases where a landlord fails to provide a tenant with a reasonable accommodation under the Maine Human Rights Act or the Fair Housing Act. The section provides that a court “shall deny forcible entry and detainer and not grant possession to the landlord if the court determines that the landlord has a duty to offer a reasonable accommodation and has failed to do so and there is a causal link between the accommodation requested and the conduct that is the subject of the forcible entry and detainer.” 14 M.R.S.A. §6001(5). In other words, the tenant must not only prove that he was denied a reasonable accommodation, but also that the denial is the cause of the eviction proceeding.
The new law defines a “reasonable accommodation” as “a change, exception, or adjustment to a rule, policy, or practice or service that is necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common access spaces for that dwelling.” 14 M.R.S.A. §6001(5). Although this affirmative defense is new, a landlord’s duty to provide a reasonable accommodation for disabilities is not; a judge at an eviction proceeding may look to what accommodations have been considered reasonable in other settings. If the judge does find that a reasonable accommodation was denied, she moves to the next inquiry – whether the denial caused the eviction. An example of such a situation might be if a disabled tenant was denied a companion animal and was being evicted for violating a landlord’s prohibition against pets.
If a tenant requests an accommodation, landlords should promptly discuss with counsel any concerns about the request. Landlords may also contact the Maine Human Rights Commission at 624-6290 for additional information or review the materials on its website.
Streamlining of a Landlord’s Disposition of a Tenant’s Unclaimed Personal Property
The law setting forth a landlord’s duty with respect to tenants’ personal items left at the dwelling has been amended to make the disposal process easier. For example, the notice periods that the landlord must provide and the timeframe within which the tenant may claim the property after notice have both been shortened. The amendment eliminates the need for landlords to value personal property in order to determine whether they can simply dispose of property with proper notice, or whether they must report abandoned property to the state. Landlords may now dispose of any personal property by complying with the notice provisions of the Maine law.
The amendments also provide for a waiver provision under which, upon vacating a unit without removing all belongings, tenants can agree to waive their rights to notice under this section. The waiver can be verbal as long as the landlord confirms the agreement in writing. The new law also provides for waiver provisions in leases of any liability for a landlord’s disposal of a tenant’s abandoned property, as long as the notice provisions are followed. 14 M.R.S.A. §6013.
Maine’s Bedbug Law
The new laws amend the “bedbug” laws that went into effect on July 11, 2010. 14 M.R.S.A. §6021-A. The new bedbug law is comprehensive and imposes ongoing communication and cooperation between landlords and tenants in addressing Maine’s bedbug problem. It sets forth responsive action upon both parties in the event of an infestation.
Duties of Landlord
The law requires the landlord to physically inspect the premises within 5 days of being notified of a possible bedbug infestation. If bedbugs are confirmed, the landlord then has 10 days to contact a pest control agent who carries a liability insurance policy. The landlord must then “take reasonable measures to effectively identify and treat the bedbug infestation.” 14 M.R.S.A. §6021-A(2)(D). The law also requires landlords to disclose bedbug infestation and treatment to potential tenants of adjacent units and prohibits a landlord from renting units that he knows or should know has bedbugs or is being treated for bedbugs. If a current or potential tenant inquires, a landlord must disclose the last date when the unit was “inspected for a bedbug infestation and found to be free of a bedbug infestation.” 14 M.R.S.A. §6021-A(2)(D).
The law also mandates that “a landlord shall offer to make reasonable assistance available to a tenant who is not able to comply with requested bedbug inspection or control measures,” including providing “financial assistance to the tenant to prepare the unit for bedbug treatment.” 14 M.R.S.A. §6021-A(2)(F). The law does not define the scope of assistance required, or the extent to which financial assistance must be offered, although the amendments discussed below provide some clarification. In addition, the law provides that the landlord “may charge the tenant a reasonable amount for any such assistance,” subject to a “reasonable repayment schedule.” 14 M.R.S.A. §6021-A(2)(F).
If a landlord fails to comply with the requirements of this law, there is a presumption of a violation of the warranty of habitability. Further, the landlord may be “liable for a penalty of $250.00, or actual damages, whichever is greater, plus reasonable attorney’s fees.” 14 M.R.S.A. §6021-A(4)(D).
Duties of Tenants
The law requires a tenant to notify the landlord if bedbugs are suspected, and mandates the cooperation of tenants in addressing the bedbug problem. If the landlord gives reasonable notice to the tenant about his need to inspect for bedbugs, the tenant must allow access to the landlord or his agents for this purpose. “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.” 14 M.R.S.A. §6025. A tenant’s obligation to provide access for inspection may extend to the tenant’s personal belongings, if the pest control agent reasonably believes such inspection is necessary.
If a tenant fails to comply and cooperate with the landlord or his agents, a landlord may seek a protective order, under which the court could:
“(1) Grant[ ] the landlord access to the premises for the purposes set forth in this section;
(2) Grant[ ] the landlord the right to engage in bedbug control measures; and
(3) Requir[e] the tenant to comply with specified bedbug control measures or assess[ ] the tenant with costs and damages related to the tenant’s noncompliance.”
Following 24 hours after service upon the tenant of the court order, the landlord may enter the premise and take remedial action.
In short, tenants must comply with any “reasonable measures to eliminate and control a bedbug infestation as set forth by the landlord and the pest control agent.” 14 M.R.S.A §6021-A(3)(C). If the tenant unreasonably fails to be cooperative with respect to pest control treatment, the law gives the landlord the right to step in, get the work done, and then hold the uncooperative tenant financially responsible for the cost “arising from the tenant’s failure to comply.” 14 M.R.S.A. §6021-A(3)(C).
The new law does not require any specific type of treatment. It simply states that it be effective to eliminate and control bedbugs. It does not address what happens if the tenant disagrees with the type of treatment the landlord uses (e.g., chemical, non-chemical, organic, or pet safe, etc.), or whether a tenant’s disagreement about treatment methods could constitute an unreasonable failure to comply.
2011 Amendments to the July 2010 Bedbug Law
Perhaps the most undefined aspect of the 2010 bedbug law is its requirement that landlords must offer to make reasonable assistance, including financial assistance, to tenants who are unable to comply with their responsibilities under this law. Although the 2010 law did not define the extent to which landlords must offer assistance, the 2011 amendments make it clear that providing financial assistance to the tenant for purposes of vacating to allow for bedbug treatment does not require the landlord to provide lodging or to “pay to replace a tenant’s personal belongings.’’ This section is still vague, however, in that it merely identifies certain things that would not be required without saying what assistance would be required.
Energy Efficiency Disclosure
The law regarding a landlord’s duty to disclose the cost of energy has been amended to allow prospective tenants who will be paying the utility costs of a unit to obtain directly from the energy supplier “the amount of consumption [for the unit] and the cost of that consumption for the prior 12-month period.” 14 M.R.S.A. 6030-C(1). Also, instead of providing prospective tenants with a residential energy efficiency disclosure statement, the landlord may now require the prospective tenant to obtain the information from the energy supplier as long as the landlord includes in the residential rental application the name of each previous energy supplier, if known, and a notice stating: “You have the right to obtain a 12-month history of energy consumption and the cost of that consumption from the energy supplier.” 14 M.R.S.A. §6030-C(1).
Although the new laws add notice requirements and other landlord duties, the changes also help landlords by providing additional guidance about claims of retaliation in eviction proceedings, streamlining the process of dealing with abandoned personal property, and addressing other issues that tend to bug landlords.
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This article is not legal advice but should be considered as general guidance in the area of Maine landlord tenant laws. The authors, are attorneys at Linnell, Choate & Webber in Auburn, Maine. To contact them, please call 207-784-4563, or email, jconway@lcwlaw.com.