Council, State Law at Odds with Changes to the Habitability Ordinance

The Everett City Council and state law continue to be at odds in the Council’s quest to reform the habitability inspection ordinance.

Once again at the Dec. 26 meeting, the Council tried to find a happy medium with inspection reform and the rights of landlords, but ended up sending it to the City Solicitor for another review.

The issue has been batted about since May, with the chief sponsor being Councilor Michael Marchese, who has said many landlords are getting penalized during inspections when tenants bring up separate issues.

Allying with him at the Weds., Dec. 26, Council meeting was Councilor Fred Capone, and the two councilors discussed how to narrow down inspections with City Attorney Keith Slattery for 90 minutes.

The issue, for the most part, is that stories have surfaced over the last year that there allegedly has been some liberty taken with the seven-year-old habitability ordinance. Chief among those liberties was that inspectors were going to inspect vacant units before rental, and tenants in other units were bringing up separate and unrelated issues. Those extra inspections were said to be causing major problems for property owners.

“That’s all it is, one apartment at one time,” said Marchese.

“The people of Everett deserve some protection,” he continued. “The City has run roughshod over this. Whatever it is, it’s not treating for an unsanitary or unsafe place. If there’s a problem with an apartment, I’m sure the tenant will call long before they see (ISD) walking through it. I’ve been in this business all my life and my apartments have always been clean…Everybody deserves protection. You come in and look at one apartment and not the whole house. Do we have a blanket policy to say they can come in and look at the whole house? The police don’t have as much power as this. They come in with a search warrant and they can’t search the whole house…I don’t think a guy is going to throw $20,000 to get a clean apartment and have two filthy apartments above and below.”

Councilor Capone said the newest version of the ordinance would call for habitability inspections to be limited to the scheduled unit and the common areas. If, for example, a tenant from another unit asked inspectors to look at a minor issue in their unit, inspectors would only be allowed to do that with the approval of the landlord and tenant.

However, he said if there were a major issue affecting serious life safety, inspectors would be able to go into that unit and look into the issue.

“Unfortunately there are good landlords and good tenants and bad landlords and bad tenants,” he said. “I hate to see a tenant see this as an opportunity to badger the landlord. If it’s a legitimate concern, that supersedes everything here, but if it’s more of a nuisance thing, the tenant has the right to have it inspected, but I think it’s on them to make their own effort to have that inspection. Just because (an inspector) is in the building, you don’t want someone else taking them by the hand and bringing them into their unit.”

However, City Attorney Keith Slattery said he didn’t think such an ordinance would be enforceable because of the existing state law, which allows tenants to invite anyone into their unit.

“At the same time, it begins to be a slippery slope,” he said.

“It seems to me the tenant…has the right to allow entry when inspectors are on the property,” he continued. “Requiring that both the tenant and landlord both give consent when inspectors are on eth property would seem to be unenforceable to me…If an inspector is on the property for another unit … and a tenant (in another apartment) tells them to come into their unit and look at a problem they have in their unit, an occupier of the space has paramount legal rights.”

Fire Chief Tony Carli said he understood the intent of the legislation, to protect landlords from bad tenants, but he also said that small problems can end up being big issues. He said the habitability inspections have been a great tool for the City and the Fire Department.

“If my members are at a property and we’re looking for an inspection, we’re looking everywhere for fire safety,” he said. “We never want to say we were at that house earlier today, or earlier this week, and we could have prevented some incident…If you’re saying not to look at smaller things, I don’t know if you’ll get one of my lieutenants to walk away. We know minor problems can lead to much larger problems…”

With Carli was Fire Capt. Scott Dalrymple, who was injured in the Morris Street fire last summer. That home on Morris Street had been the subject of habitability inspections that uncovered major issues that were corrected just before the fire.

Carli said Dalrymple was a great example of what happens when things aren’t checked out in a unit.

“I have Capt. Scott Dalrymple here and he was seriously injured in a fire,” he said. “He’s evident to what can happen when things aren’t maintained in this City…We’re not kicking in doors when we do these inspections. We want to make sure everyone is safe…I understand what Councilor Marchese is saying. You don’t want to go in and turn a place upside down…We find a lot of the problems through the habitability. It’s definitely a tool that’s benefitted this City.”

A telling problem in the ordinance was just how it would work alongside state law, which is more powerful than a City ordinance. Both Councilors Rosa DiFlorio and Michael McLaughlin wondered if the effort was a waste of time.

“I want to support Councilor Marchese and Councilor Capone, but I’m not sure what really we’re trying to change if the state law supersedes our process,” said McLaughlin. “I wonder if we’re banging our heads against the wall.”

The matter was moved to be reviewed by the City Solicitor and taken up once again in the new year.

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