December
11, 2009
New Laws Allow Landlords and Tenants to Agree on Lower Heat, Municipalities to Intervene and Provide Heating Fuel with Lien Rights
Under a recently enacted law, 14 M.R.S.A. §6021(6-A), landlords may agree with their tenants to provide heat at less than the previously mandated 68°F level, so long as there is a separate signed agreement and certain other requirements are met. Among those requirements are that no resident can be under 5 or over 65 years old, the agreed upon temperature cannot be less than 62°F, there must be a stated fair and reasonable reduction in rent, and the agreement must be revocable with reasonable notice. This new law will allow tenants and landlords the latitude to save rent in the case of the tenants, and heating costs for landlords and may be an attractive option for both sides in these challenging economic times.
Another new law, 14 M.R.S.A. §6026-A, allows municipalities to step in and order fuel for tenants if the leased premises are “out or nearly out” of fuel so that there is an “imminent threat to the continued habitability of the premises.” The municipality must make “a good faith attempt” to contact the landlord either in person, by phone or certified mail and provide notice of the municipality’s intention to provide fuel unless the landlord acts by a set date. Failure to reach the landlord in a timely manner (presumably this timeliness will be gauged in terms of the threat to habitability) or failure of the landlord to deliver an adequate amount of oil by the set deadline will empower the municipality to procure adequate supplies of oil and “attendant activities” to make sure the heating system works properly. The municipality is entitled to assert a lien “against the landlord of the leased premises” for these costs, as well as for “reasonable related administrative costs,” and must notice of the intention of recording the lien to the record owner and “any record holder of the mortgage” at least 10 days before the recording takes place. This new law is troublesome in many respects. It draws no distinction between those instances where the landlord is required to provide the heat and where heat is the tenant’s responsibility. The law also allows the municipality to make set determinations that may be subjective in nature: for example, the determination of an “imminent threat,” choosing the mode of communication with the landlord “as may be warranted,” setting the deadline for the landlord’s response, and determining whether the landlord has provided for the delivery of an “adequate supply” of fuel. Furthermore, to the extent that the new statute authorizes a lien “against the landlord of the premises” – as opposed to the premises themselves - the language is at best inartful and at worst ineffective for its purpose. Landlords and their secured lenders alike will need to be wary of this new protection for tenants.
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