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Thomas McJD
Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6513
Experience:  Real Estate Attorney
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Can you lease a residential or commercial space with out a

Resolved Question:

Can you lease a residential or commercial space with out a occupancy certificate in Massachusetts
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Thomas McJD replied 1 year ago.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

What city and county is the property in?

Customer:

Nantucket, MA

Customer:

are you there?

Customer:

?

Customer:

Not sure if you are going to answer me?

TMcJD :

Yes, sorry. I was looking up the law.

TMcJD :

780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS provides as follows:

Customer:

sorry never used this before?

TMcJD :

111.1 Revise to read as follows:
111.1 Use and Occupancy. No building or structure shall be used or occupied, and no change
in the existing occupancy classification of a building or structure or portion thereof shall be
made, until the building official has issued a certificate of occupancy therefore as provided
herein.

TMcJD :

www.mass.gov/eopss/docs/dps/8th.../1-scope-and-administration.pdf‎

TMcJD :

Sorry, here is the full link:

TMcJD :

http://www.google.com/url?sa=t&rct=j&q=massachusetts%20code%20certificate%20of%20occupancy&source=web&cd= 1&ved=0CCoQFjAA&url=http%3A%2F%2Fwww.mass.gov%2Feopss%2Fdocs%2Fdps%2F8th-edition%2F1-scope-and-administration.pdf&ei=02e6UYP1L4T88QT6oYBQ&usg=AFQjCNFF2o-UOkWYtSQaeOwL6nCyvGD6uw&cad=rja

Customer:

what if you have been living and opperating a business for 36 months and only today understand that there is no OC

TMcJD :

Well, you could most likely walk away from any lease if you wanted since the owner cannot legally lease a building for occupancy without the certificate.

Customer:

what if the landlord wanted to evict me

TMcJD :

If you wanted, you could report the violation, but they would probably remove you from the building if a certificate cannot be immediately obtained after inspection.

TMcJD :

If they want to evict you, you really don't have legal rights under a lease either since the lease isn't legal in the first instance.

Customer:

lease isnt legal

TMcJD :

However, if that would cause you some sort of loss, you may have a claim against the owner based on the invalidity of the lease and the fact that you would suffer loss. This would be based on equitable (fair) principles of law.

Customer:

yes this would cause loss

TMcJD :

Yes, the lease wouldn't be legal as no building can be used or occupied without the certificate. Thus, any lease for use and occupation of the space wouldn't be enforceable.

Customer:

the property does not have CO due to the way the utilities were set up

TMcJD :

Thus, your remedies rely on equitable principles of the law.

Customer:

should I be charged utilities?

Customer:

the landlord has no way of knowing who pays for what as there are many tennants within the building

TMcJD :

Yes, because you received the benefit of the use of the building and the use of utilities. Thus, even if the lease isn't valid, the law generally won't allow you to retain a benefit when it would unjustly enrich you at the expense of the other party. That is an equitable principle of law that would control in the absence of a valid contract.

TMcJD :

It may be difficult, then, to prove what amount should be paid for utilities, but ultimately a "fair" compensation would have to be determined and paid.

Customer:

no different meters and no accurate percentages of square footage

TMcJD :

Yes, I noticed that you mentioned that. In any event you would have to try and determine a fair compensation by some method -- even negotiation.

Customer:

ok understood can the landlord evict me

TMcJD :

Of course, the best approach for you might be to take the position that you don't to pay anything since the lease isn't valid. Then force him to make the argument that you owe him based on equity of the law.

TMcJD :

Yes.

TMcJD :

Yes, the landlord can evict you.

Customer:

how do i prevent

Customer:

how long does an eviction process take?

TMcJD :

Without a valid lease, an eviction wouldn't take very long - about a month.

Customer:

even if it is his fault

TMcJD :

Unfortunately, since the lease is not legal, you could not prevent being removed from the property. However, you could ask the court for a reasonable amount of time to get things in order to move (again based on fairness)

Customer:

ok thanks for your help

TMcJD :

You're welcome. Sorry, I couldn't give you good news. I hope it works out well for you. Have a great night.

Customer:

you too

TMcJD :

Thanks!

Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6513
Experience: Real Estate Attorney
Thomas McJD and 5 other Real Estate Law Specialists are ready to help you

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