In 2011, the Maine legislature enacted a number of notable changes to residential landlord/tenant law. The following is a summary of those changes, which became effective as of September 28, 2011.
At-will leases without termination or notice language may still be terminated by following statutory requirements
The Maine Supreme Judicial Court has held that a residential lease that did not contain termination language could not be terminated using the tenancy at will provisions provided by statute. The new law provides that in the case of a residential lease that does not include a provision to terminate the tenancy or does not provide for written notice of termination in the event of a material breach of the lease, a landlord may still terminate in accordance with the statutory tenancy at will provisions. In addition, the new law provides that a tenant may terminate its tenancy in the event of a substantial breach by giving seven days’ written notice of termination.
The 2012 radon testing implementation requirement is delayed until 2014
A 2009 law required residential landlords to begin testing their buildings for the presence of radon. Such testing was to be done every 10 years, beginning no later than 2012. The revised law delays the implementation of this requirement to March 1, 2014.
The smoking policy for the premises must be disclosed in the lease
Under the new law, landlords entering into a lease or tenancy at will agreement for property used as a tenant’s primary residence are required to provide a written smoking policy disclosure regarding whether, and where, smoking is permitted on the premises. The notice must state whether smoking is prohibited entirely, allowed throughout the premises, or allowed in limited areas, in which case, the notice must identify the limited areas where smoking is allowed. The notice must be provided in the written lease agreement, or, in the case of a tenancy at will, in a separate written notice, and a landlord must obtain written acknowledgment that it has provided the notice prior to entering into a lease or receiving a deposit from a tenant.
The presumption of retaliation no longer exists in certain eviction proceedings
Under prior eviction (“forcible entry and detainer,” or “FED”) law, a rebuttable presumption of landlord retaliation against a tenant existed if, in the six months prior to the FED action, the tenant had (1) filed a complaint alleging that the premises were unfit for human habitation; (2) filed a complaint regarding building, housing, sanitary or other code violations; (3) complained to the landlord of required repairs to the premises under applicable law; or (4) filed a fair housing complaint with the Maine Human Rights Commission or the U.S. Department of Housing and Urban Development. The new law provides that this rebuttable presumption of retaliation does not exist if the FED action is brought for failure to pay rent or for causing substantial damage to the premises (unless the tenant has asserted a right under the statute covering dangerous conditions requiring minor repairs).
Additionally, in order for the rebuttable presumption of retaliation to apply in the case of fair housing complaints with the Maine Human Rights Commission or the U.S. Department of Housing and Urban Development, such complaints must have a “reasonable basis” and have been brought prior to the tenant’s having been served with an eviction notice.
Finally, under the recent bedbug law (discussed in detail below), there is a similar rebuttable presumption of landlord retaliation if a landlord brings an FED action within six months after a tenant has asserted its rights under the bedbug law. The law was revised in 2011 to provide that the rebuttable presumption does not apply (1) unless the tenant asserted its rights prior to being served with the eviction notice; or (2) if the FED action is brought for failure to pay rent or for causing substantial damage to the premises.
During the eviction process, a tenant may only raise the affirmative defense of a landlord’s failure to provide a reasonable accommodation if that failure is linked to the eviction proceeding
The tenant who asserts in defense that the landlord failed to provide a “reasonable” accommodation under the Maine Human Rights or federal Fair Housing Act must prove a causal link between the tenant’s claim and the landlord’s eviction proceeding. Prior law provided that in an eviction proceeding, a tenant could raise the affirmative defense of the landlord’s failure to provide a reasonable accommodation pursuant to the Maine Human Rights Act or the federal Fair Housing Act. The revised statute provides that the tenant’s defense may prevail only where there is a causal link between the reasonable accommodation the tenant requested and the landlord’s conduct that is the subject of the FED action. The tenant must show that the landlord has a duty to offer a reasonable accommodation and has failed to do so, and must also show that the eviction is the result of conduct related to the requested accommodation. (The example commonly given is of a visually impaired tenant requesting that the landlord’s “no pets” rule be relaxed to allow the tenant to keep a guide dog. If the landlord refuses and commences eviction proceedings, the tenant, to prevail, must show not only that the landlord had a duty to allow the guide dog and failed to do so, but also that the landlord’s eviction action is in response to the tenant’s refusal to follow the “no pets” rule – rather than, for instance, failing to pay rent.)
Additionally, the new law defines “reasonable accommodation” – a previously undefined term – as “a change, exception or adjustment to a rule, policy, 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.”
The new statute allows for quicker disposal of the tenant’s unclaimed personal property
The statute dealing with disposal of a tenant’s unclaimed property has been substantially revised. Instead of waiting to obtain a writ of possession or for the tenant to vacate, a landlord may begin the process of disposing of personal property as provided in the statute at any time after entry of judgment in favor of the landlord (or, as before, at any time after the tenant has vacated). In the past, the tenant would vacate the premises and the landlord would notify the tenant that it would store the tenant’s unclaimed personal property for a short time. The tenant could then claim the property, or the landlord could dispose of it, typically by sale at fair market value. The revised law provides for a shorter notice period, as well as a shorter period for the tenant to reclaim personal property.
In addition, a tenant may now waive its rights under the revised statute. If the waiver is oral, the landlord is required to confirm it in writing. The statute also provides that a lease or tenancy at will may permit a landlord to dispose of the tenant’s abandoned property without liability so long as the landlord follows the statute’s notice provisions.
Both the landlord and the tenant have a duty to treat bedbug infestation
In 2010, the Maine legislature passed a new law to address the issue of bedbug infestation in rental units. It was revised slightly in 2011, but given the recent passage of the 2010 law, the discussion below covers the law in its entirety, and not simply the 2011 revision.
The bedbug law imposes duties upon both landlord and tenant, and provides remedies for either party’s failure to comply with those duties.
The statute requires a landlord to inspect the dwelling unit for bedbugs within five days of a tenant’s notice of a possible infestation. If an infestation exists, the landlord must contact a pest control agent (i.e., an insured commercial applicator of pesticides) within 10 days, and must take “reasonable measures” to identify and promptly treat the infestation. In addition, before renting, a landlord must disclose to a prospective tenant if any adjacent unit is infested with or being treated for bedbugs. The landlord must tell a tenant or prospective tenant, upon request, when the unit and/or adjacent units was last inspected and found free of a bedbug infestation. In addition, the landlord may not rent a unit that the landlord knows or suspects is infested. Finally, the landlord must offer to make “reasonable assistance” available to a tenant who cannot comply with the inspection or control measures specified by the landlord and the pest control agent, and must tell the tenant what the tenant’s cost may be for compliance with such measures. The landlord may provide financial assistance to the tenant to prepare the unit for treatment, and may charge the tenant a reasonable amount for such assistance, to be repaid over a reasonable repayment schedule. The statute is not specific about what is “reasonable” here, but it does specify that the landlord need not provide the tenant with alternative lodging or pay to replace the tenant’s personal property.
The statute requires the tenant to promptly notify the landlord when it suspects an infestation, and is also required to allow the landlord, its agent or its pest control agent, upon reasonable notice, to inspect the unit for an infestation. The tenant is also required to comply with “reasonable measures” set forth by the landlord and its pest control agent to eliminate and control an infestation.
The failure of the landlord to comply with the bedbug law constitutes a failure of the landlord to keep the unit safe for human habitation, and the landlord may be liable for a penalty of the greater of $250 or actual damages, plus attorneys’ fees. In the case of a tenant’s failure to comply with the law, the landlord may bring an action for relief, which may include allowing the landlord to access the premises and take bedbug control measures, and requiring the tenant to comply with such measures or assessing costs and damages for noncompliance.
Finally, as discussed above, a rebuttable presumption of landlord retaliation applies in an FED action where a tenant has asserted its rights under the bedbug law within six months prior to the commencement of the FED action.
The new statute enables the prospective tenant to get an energy efficiency disclosure statement directly from the energy supplier
Prior to the minor 2011 amendment, Maine law required that a landlord entering into a lease or tenancy at will for a tenant’s primary residence provide the tenant a residential energy efficiency disclosure statement. The statement was to be given to the tenant, and posted on the property, prior to entering into a lease, and both parties were to sign the statement.
The 2011 statutory amendment allows prospective tenants to get utility cost information directly from the energy supplier(s), and allows landlords to provide tenants with notice stating as follows: “You have the right to obtain a 12-month history of energy consumption and the cost of that consumption from the energy supplier.” If the landlord provides that statement and the name of each supplier of energy that previously supplied the unit, it is no longer required to give the disclosure statement directly to the tenant. In addition, if the landlord chooses to provide the disclosure, it now is required to provide it only to (a) tenants who pay for their energy supply or (b) tenants who request it, rather than to all tenants. Finally, the 2011 amendment no longer requires the landlord to post the disclosure at the property being offered for lease.
For more information
If you have a landlord or tenant legal concern, please feel free to contact Pete McDonell directly at (207) 774-2635 or pmcdonell@perkinsthompson.com.
