According to Massachusetts General Laws Chapter 186, Section 22, a landlord must follow very specific procedures before they can require a tenant to pay for water. When a unit is not directly connected to a meter installed by a water company, the law requires installation by a licensed plumber of separate submeters for the individual units and the common areas as well as a primary meter for the building so that all water being used in the building is measured by the primary meter and the individual submeters serving particular units or common area. So, for example, if a building contains 4 dwelling units and a basement where water is utilized for the entire building, a landlord would need to have 5 submeters installed in addition to the primary meter that measures the building’s water use in its entirety. But that’s not all. A landlord must also have a licensed plumber install low-flow showerheads, faucets and toilets meeting statutory flowage requirements. The installation and subsequent maintenance of the equipment are solely at the landlord’s expense. When the metering and water conservation devices are in place, the landlord must certify to the local board of health or health department that they have complied with the statutory prerequisites.
Once a building has been retrofitted with the proper equipment and the landlord has given their certification, a tenant may be charged for water usage subject to a few more requirements. First, a landlord may only begin charging a tenant for water usage at the commencement of a new tenancy. They cannot start charging a tenant for the first time mid-tenancy. Further, the landlord and tenant must enter into a written rental agreement that unambiguously discloses how the tenant’s water usage will be measured and details the billing arrangement between the parties.
If a tenancy begins in the middle of a billing period before the landlord has received a bill from the water provider, the landlord must take a reading on the unit’s submeter on the first day of the tenancy and mail it to the tenant. The tenant’s first bill from the landlord for water usage must take into account this initial submeter reading. Each bill must include the current and last submeter readings with dates for each, the amount of water used by the tenant since the prior reading, the cost per unit of water, the total due and the payment due date. A landlord cannot recover from the tenant any additional servicing, administrative, establishment, meter-reading, meter-testing, billing, or submetering fee or other fee whatsoever, however denominated, that is charged to the landlord by the water provider.
If a landlord bills the tenant for water usage on a monthly basis, payments are due from the tenant 15 days after the mailing date of the bill; if billed at intervals greater than a monthly basis, a tenant has 30 days after the mailing date of the bill to pay. While service cannot be shut off or refused to a tenant on the basis that they have not paid their bill, landlords can find some solace in the fact that a tenant’s failure to pay for water usage when due is a material breach of the parties’ written rental agreement subject to judicial action. A landlord who engages in self-help by willfully failing to furnish water or directly or indirectly interfering with the furnishing by another of water, or transferring responsibility for payment for water to the tenant without their knowledge or consent, is punishable by a fine of not less than $25.00 nor more than $300.00 , or by imprisonment for not more than 6 months and is liable for actual and consequential damages or 3 month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee.
If a tenancy terminates in the middle of a billing period for which the landlord has not yet received their water bill, the landlord must take a reading on the unit’s submeter on the last day of the tenancy and provide a final bill for water usage that starts with the prior reading and ends on the last day of the tenancy. The rate charged in the final bill, which is immediately due and payable by the tenant, shall be the same charged in the prior bill. If not immediately paid by the tenant, the landlord may deduct the final billing amount from any security deposit paid by the tenant so long as procedures set forth in the security deposit law, and not discussed here, are followed. If, when the landlord is finally billed by the water provider, a lesser rate is charged, the landlord shall refund the difference to the tenant.
Any landlord considering charging a tenant for water usage should carefully consider the ramifications of doing so. While this article is an overview of the subject, it is in no way comprehensive. Obtaining legal advice is recommended for any landlord considering submetering in light of the stiff penalties imposable for failure to follow the law’s burdensome requirements.
Real Estate Attorney