Published on: April 1, 2010
On February 10, 2010, the new so-called “Green Ticket” law was signed into law by Governor Patrick. While it is difficult to see how this law will improve the environment or prevent global warming, this new law will change the manner in which property owners are notified of, and respond to, the issuance of housing code citations.
Specifically, this new law authorizes cities and towns to alter the manner in which they notify owners of purported code violations, and establishes strict procedures for appealing such citations. It should be noted that this law only applies to municipalities which specifically adopt it. However, as many cities have already indicated the intention to implement this law, it is imperative for all property owners, and especially residential landlords, to understand its mandates.
The primary change contained in this law is the manner in which a property owner will be notified of a purported violation of any housing or sanitary code, including a municipality’s regulations pertaining to the removal of snow. Under existing law, property owners are notified of alleged violations by service of a written notice of violation, usually by a constable or by certified mail. This insures that the owner, or its managing agent, have actual notice of the citation. The new law allows for the officer or inspector to issue a notice of violation in a “tag” form (i.e. a ticket) by securely affixing the tag to the building or, if there is an on-site management office, by delivering the tag to that office. In other words, the new law allows for the inspector to merely place a ticket on the door to a building rather than having to actually serve the owner. While this process will clearly reduce the costs incurred by the municipality in researching and serving the actual owner of the property, it is wrought with potential problems. One can easily imagine these tickets blowing away in the wind or being removed by unsuspecting (or suspecting) residents. In recognition of these potential issues, the new law provides the following procedures intended to afford property owners with an opportunity to challenge these citations.
Once a “ticket” is issued, the property owner has twenty-one (21) days to either pay the fine or appeal the citation. If the owner neither pays the fine nor requests an appeal, a written notice is then mailed to the owner of record or its managing agent with an administrative fee of $10.00 added. If the owner swears under the pains and penalties of perjury that it did not receive the initial ticket, the owner has fourteen (14) days to then request an appeal. Otherwise, the fine must be paid within thirty (30) days.
If an appeal is requested, either initially or after the second written notice is sent, the owner may select to either proceed in writing or in person. If the owner elects to file a written appeal, the owner may submit any information it desires, including affidavits, pictures, plans, etc. The hearing officer would then issue a written decision. If the owner elects a hearing, the hearing officer would conduct the hearing and issue a written decision. Either of these decisions could be appealed to a Court, but there is no other right to appeal to the municipality, regardless of whether you proceed in writing or by hearing.
Another important change implemented by this law is the manner in which these fines will be enforced. Under current law, municipalities had some difficulty enforcing these fines. The new law establishes these fines as a lien on the property, similar to a tax lien. Failure to pay the lien would allow the municipality to enforce the lien by tax taking or by placing them on a municipal lien certificate at the time of a sale or refinance of the property.
It is important to note that the failure to appeal from the issuance of a citation may have significant implications for property owners. Specifically, the new law provides that the fact that a ticket is issued and not overturned on appeal is “prima facia” evidence of the violation in any later criminal or civil case. In other words, if you are cited for an alleged violation and fail to appeal same, you may be barred from challenging the existence of that condition in a later court case. For example, if the town was to cite you for failing to properly remove snow and you fail to appeal that finding, a tenant could later use the citation as evidence of improper snow removal in a slip and fall injury case. As such, it is imperative that you carefully consider whether you appeal a citation which has been issued.
In summary, this law ONLY applies if specifically adopted by the city or town in which your property is located. If it is adopted, you should insure that your management staff is well aware of the need to immediately respond to any citation they receive, either in the form of a ticket or by written notice. Failure to pay the ticket within the time periods required may result in additional fines and a lien on the property. Failure to appeal the citation as required (i.e. within twenty-one (21) days of receiving the ticket or within fourteen (14) days of receipt of the written notice) will result in the loss of any appeal rights, and could also have later consequences in any civil or criminal case which is filed.
This article is intended to provide a general understanding of the new law. Property owners and managers should consult with their legal counsel for specific advice as to the effect and import of this law.