Can I Sue My Landlord After a Carbon Monoxide or Fire Injury in Massachusetts?

Usually yes, and Massachusetts gives you more than one way in. Most people assume the only question is whether the landlord was careless. That is the hardest of the four routes, not the only one. A tenant who sent written notice by registered or certified mail has a statutory claim under M.G.L. c. 186, sec. 19 that does not depend on proving carelessness at all. The implied warranty of habitability supplies a second route, and in 2009 the Supreme Judicial Court held it reaches a visiting guest, not only the tenant. The state sanitary code makes a missing smoke detector or carbon monoxide alarm a condition that endangers or materially impairs health or safety. And the carbon monoxide statute almost everyone cites is the wrong one. If you were hurt in a Massachusetts rental, call Jim Glaser Law at (617) JIM-WINS; the line is answered 24 hours a day and the first telephone consultation is offered without charge.

Four Routes In, and They Do Not Share a Trigger

A carbon monoxide poisoning, a fire, a fall through a rotten stair tread and a scalding from an unregulated water heater all arrive at the same question. Who answers for it. In a Massachusetts rental there are four separate legal answers, and the practical mistake is treating them as one.

The first is ordinary negligence, which asks whether the landlord behaved reasonably. The second is the statutory duty in M.G.L. c. 186, sec. 19, which asks a narrower and much more mechanical question: did the tenant send the right kind of notice, and did the landlord fix the condition within a reasonable time. The third is the implied warranty of habitability, a creature of the courts that ties the landlord’s obligation to the building and sanitary codes. The fourth is the code violation itself, which does not create a claim on its own but supplies proof for the other three.

They have different triggers, different defendants and different defenses. A case that fails on one can succeed on another. That is why the order in which a Massachusetts injury lawyer looks at a rental case is not the order most people expect, and it usually does not start with whether the landlord was careless.

The Carbon Monoxide Statute Is Not the One Almost Everyone Cites

Search for the Massachusetts carbon monoxide law and you will be told repeatedly that it lives in M.G.L. c. 148, sec. 26F, and that it applies on the sale or transfer of a home. Read section 26F and you will find no carbon monoxide in it. Here is the whole operative sentence:

All buildings or structures occupied in whole or in part for residential purposes and not regulated by sections twenty-six A, twenty-six B or twenty-six C shall, upon the sale or transfer of such building or structure, be equipped by the seller with approved smoke detectors as provided in section twenty-six E.

Smoke detectors. The seller. On sale or transfer. Section 26F has nothing to say about a landlord who never put in a carbon monoxide alarm, and citing it in a demand letter tells the other side’s lawyer that nobody read the statute.

The carbon monoxide requirement is in a separately numbered section, M.G.L. c. 148, sec. 26F1/2, and it is a continuing obligation of ownership rather than a transaction requirement. Subsection (a) is the part that matters, and it names landlords in terms:

a landlord or superintendent shall install either approved monitored battery-powered alarms or approved electrical wiring alarms as defined by the board, as are required to make the alarms operational at the beginning of any rental period by lease or otherwise and shall maintain and, if necessary, replace batteries or such battery-operated or electric hardwired carbon monoxide alarms annually thereafter to insure their continued operability

Read the clocks in that sentence, because they are the two dates a case gets built around. The alarms have to be operational at the beginning of any rental period. Then there is an annual obligation on the landlord, not the tenant, to maintain and if necessary replace batteries so the alarm keeps working. A landlord who installed alarms in 2019 and never touched them again has an answer to the first duty and no answer at all to the second.

The section does carry a sale-and-transfer element, but it is an inspection rather than an installation. Subsection (c) provides that a residential dwelling, building or structure shall, upon sale or transfer, “be inspected by the head of the fire department for compliance with the requirements of this section”. That inspection generates a paper record, which is worth knowing about if the building changed hands anywhere near the date of your injury.

Whether Your Building Needs an Alarm at All Turns on Two Conditions

Before anything else, check whether the statute reaches the building. M.G.L. c. 148, sec. 26F1/2(a) does not apply to every residence. It applies to a dwelling, building or structure occupied in whole or in part for residential purposes that satisfies one of two conditions. Either it

contains fossil-fuel burning equipment including, but not limited to, a furnace, boiler, water heater, fireplace or any other apparatus, appliance or device that burns fossil fuel

or it

incorporates enclosed parking within its structure

That is broader than it first sounds. A gas water heater alone brings a building inside the statute even if the heat is electric. A working fireplace does it. An attached garage under the units does it, which is why the requirement reaches modern apartment buildings that burn nothing at all.

It is also narrower than most people assume. An all-electric building with no enclosed parking is outside the statutory alarm requirement, and a landlord in that situation has a genuine defense to the alarm claim. It is not a defense to the case. Carbon monoxide does not appear in a building for no reason, and in an all-electric building it came from something: a neighboring unit, a generator, a vehicle, equipment brought in by a contractor, or a piece of fossil-fuel equipment nobody disclosed. The alarm claim narrows and the causation investigation widens.

Where the statute does apply, its detail is delegated. Subsection (b) directs the board of fire prevention regulations to promulgate regulations covering “the type, installation, location, maintenance and inspectional requirements of carbon monoxide alarms”, and those live in the Massachusetts Comprehensive Fire Safety Code. Subsection (e) makes the head of the fire department the enforcing officer.

Then subsection (f) does something quietly useful for an injured tenant. It provides:

The department of public health shall promulgate such rules and regulations as may be necessary to effectuate subsection (a) into the state sanitary code as established under section 127A of chapter 111.

The fire code and the sanitary code are separate systems with separate enforcers. That sentence stitches them together, which is why a missing carbon monoxide alarm is simultaneously a fire code matter for the fire department and a housing matter for the board of health. In a personal injury case, the board of health is usually the more useful of the two, for reasons covered further down.

Smoke Alarms Live in a Different Section Again

The smoke detector rules are split across five sections of chapter 148, and which one governs depends on the building. Identifying the right section is not pedantry; it is the difference between proving a violation and asserting one.

M.G.L. c. 148, sec. 26E(a) covers “All one and two family dwellings occupied in whole or in part for residential purposes and not regulated by section twenty-six A or twenty-six B”, and it is written as an owner’s installation duty. The placement requirement is specific enough to measure against a floor plan:

an approved smoke detector shall be installed on the ceiling of each stairway leading to the floor above, near the base of, but not within each stairway and an approved smoke detector shall be installed outside each separate sleeping area

Separate sleeping area sounds vague until you read the definition in section 26D, which resolves the exact ambiguity that comes up in an apartment:

Bedrooms, or sleeping rooms, separated by other use areas such as kitchens or living rooms, but not bathrooms, shall be considered as separate sleeping areas

So two bedrooms off the same hallway are one sleeping area, and two bedrooms at opposite ends of a living room are two, each needing its own detector.

Section 26E(b) picks up the next size class, covering residential buildings “containing not less than three nor more than five units and not regulated by section twenty-six A, twenty-six B or twenty-six C”. Those buildings need detectors outside each separate sleeping area, and they need something more that matters enormously in a fire case:

in all common hallways and basements of said residential buildings or structures a series of interconnected approved primary power smoke detectors shall be installed

Interconnected. Hard wired. In the common hallways and the basement. A three-decker whose basement detector was a lone nine-volt unit, or whose hallway detectors did not sound together, was not compliant, and in a fire that started in the basement that failure is directly connected to how much warning the people upstairs got.

Larger and commercial-style residential buildings fall under section 26C, which covers “Apartment houses containing six or more dwelling units, hotels, boarding or lodging houses, or family hotels which are not regulated by section twenty-six A or twenty-six B” and routes their requirements through the board of fire prevention regulations. Section 26B covers buildings up to seventy feet “erected or substantially altered to be occupied for residential purposes” and requires an approved automatic fire warning system under the state building code. Section 26A covers buildings over seventy feet and requires sprinklers.

There is a separate local-option provision worth checking in a rooming house case. M.G.L. c. 148, sec. 26H requires sprinklers throughout every lodging or boarding house, but only “In any city or town which accepts the provisions of this section”. Whether your city accepted it is a question for the city clerk, and the answer changes the standard.

A Code Violation Is Evidence, Not an Automatic Win

Massachusetts does not use a violation of a safety statute as automatic liability. It uses it as proof. The Supreme Judicial Court put the rule plainly in Perry v. Medeiros, 369 Mass. 836 (1976):

The general rule in Massachusetts is that violation of the safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.

The same opinion adds the limit that decides whether a given violation helps you. A violation

is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent

That second sentence is where cases are won and lost, and it usually favors the injured person in an alarm case. A carbon monoxide alarm requirement exists to prevent carbon monoxide poisoning. An interconnected basement smoke detector exists to prevent people upstairs from being caught by a fire that started below them. The match between the violation and the harm is about as tight as it gets. We cover the wider Massachusetts approach to fault on our page about how fault is determined, and the way a plaintiff’s own conduct is weighed on our page about comparative negligence.

The Statutory Route, and the Registered Mail Trap

M.G.L. c. 186, sec. 19 is the most mechanical claim a Massachusetts tenant has, and the most commonly forfeited. It reads:

A landlord or lessor of any real estate except an owner-occupied two- or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, exercise reasonable care to correct the unsafe condition described in said notice

Every clause in that sentence does work. The duty is owed by a landlord of any real estate, with a single exception for an owner-occupied two-family or three-family dwelling, which is a common enough arrangement in Massachusetts that it has to be checked first. The notice must be written. It must be forwarded by registered or certified mail. And the condition must not have been caused by the tenant or the tenant’s own guest.

The registered mail requirement is the trap. Tenants tell landlords about a broken furnace by text message, by email, by leaving a voicemail, by mentioning it when the rent is dropped off. None of that is what the statute asks for, and a landlord’s lawyer will say so.

There is a second door into the same duty, and a great many tenants have already walked through it without knowing. The last sentence of section 19 provides:

The notice requirement of this section shall be satisfied by a notice from a board of health or other code enforcement agency to a landlord or lessor of residential premises not exempted by the provisions of this section of a violation of the state sanitary code or other applicable by-laws, ordinances, rules or regulations.

If you ever called the board of health, and the board inspected and cited the landlord, the statutory notice was given on that date regardless of how you had been communicating. Getting the inspection file is one of the first things worth doing in a rental injury case, and it is a public record.

What the notice buys you is set out in the next sentence:

The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages.

Any person rightfully on said premises. Not just the tenant. The guest asleep on the couch, the grandmother visiting for the weekend, the home health aide and the person delivering a package are all inside that phrase.

And the duty cannot be contracted away:

Any waiver of this provision in any lease or other rental agreement for residential use shall be void and unenforceable.

That is one of three separate places Massachusetts law refuses to let a landlord contract out of responsibility, and the wider question of when a signed document does and does not stop an injury claim is covered on our page about whether liability waivers are enforceable in Massachusetts.

What Bishop Decided, and the Lease Clause That Could Not Save a Landlord

Section 19 was on the books for almost forty years before the Supreme Judicial Court decided how far it reached. Bishop v. TES Realty Trust, 459 Mass. 9 (2011) settled two questions, and both are useful.

The first was scope. The tenant ran a tanning salon and was hurt when plaster fell from around a leaking skylight, and the trial judge had thrown the case out on the view that section 19 applies only to residential leases. The court framed the issue as whether the statutory duty of a landlord

to exercise reasonable care to correct an unsafe condition described in a written notice from a tenant applies to commercial leases. We conclude that it does.

That matters for residential tenants too, because it tells you what kind of statute this is. The Legislature wrote a duty running to a landlord of any real estate, and the court read it that way, declining to narrow it to fit the older common law.

The second question is the one that shows up in residential leases constantly. The landlord argued that because section 19 covers only conditions not caused by the tenant, and because the lease made the tenant responsible for all repairs, the tenant had caused the condition by failing to repair it. The court refused, reasoning that if a repair clause worked that way,

the lease provision would effectively constitute a waiver of the landlord’s obligations

and the statute forbids waivers. So a residential lease that assigns maintenance to you does not turn your landlord’s failure to fix a noticed unsafe condition into your own fault. It is worth reading alongside our page on negligent security claims, which deals with the neighboring question of what a landlord owes in the common areas of a building.

The Warranty Route, and the Guest on the Porch

Massachusetts recognized an implied warranty of habitability in Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973), holding that in a rental of premises for dwelling purposes

there is an implied warranty that the premises are fit for human occupation

and that the warranty, so far as it rests on the sanitary code and local health regulations,

cannot be waived by any provision in the lease or rental agreement

Hemingway itself was a rent case, not an injury case. The bridge to personal injury came in Crowell v. McCaffrey, 377 Mass. 443 (1979), where a third-floor porch railing gave way, and where the court held the warranty “carries with it liability for personal injuries caused by a breach”.

Then in 2009 the Supreme Judicial Court answered the question that decides a surprising number of modern cases. In Scott v. Garfield, 454 Mass. 790 (2009), a man visiting a friend’s apartment fell when a second-floor porch railing gave way. He was not the tenant. The landlord argued that the warranty belongs to the lease and therefore to the tenant alone. The court disagreed, holding that

a lawful visitor may recover for personal injuries caused by a breach of the implied warranty of habitability

The reasoning tracked the sanitary code’s own stated purpose, which is to protect occupants of housing and the general public. A lawful visitor of an occupant of housing, the court said,

plainly comes within the scope of persons intended to be protected and therefore also within the ambit of the implied warranty of habitability while on the rented premises

There is a line to keep straight. A guest can recover for personal injury under the warranty. A guest cannot recover for economic loss under it, because that half of the warranty really is contractual and belongs to the tenant.

Scott also disposed of an argument landlords still make about which parts of an apartment the warranty covers. The landlord said the porch had to be shown to be vital to the use of the premises. The court pointed back to Crowell, which had already extended the landlord’s implied agreement to comply with the building and sanitary codes to a porch that is part of a rented unit.

The Question Scott v. Garfield Left Open

Here is the part of Scott v. Garfield that a careful case is built around, and it is a limitation rather than a holding.

For economic loss under the warranty, the standard is strict. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) held that

the tenant’s obligation abates as soon as the landlord has notice that premises fail to comply with the requirements of the warranty of habitability

and added that the landlord’s lack of fault and reasonable efforts to repair do not prolong the duty to pay full rent. A landlord who did nothing wrong still owes the abatement.

For personal injury under the warranty, Massachusetts has not decided whether notice is required. Scott says so directly. The court noted that it has

left open the question whether, where a tenant (or, as here, a lawful visitor) seeks to recover for physical injuries caused by a breach of the warranty, the standard is one of negligence

as the Restatement would require, or something closer to the strict standard that governs economic loss. In Scott itself the court did not have to resolve it, because the jury had returned verdicts on both negligence and warranty, and the negligence finding established that the landlord knew about the railing.

Nothing found in a search of published Massachusetts appellate decisions since has answered it. That is a database search over the Caselaw Access Project and CourtListener rather than a citator report, and it is stated as such. But the practical consequence is stable and worth knowing: because the standard is unsettled, a rental injury case in Massachusetts is normally pleaded on negligence, warranty and section 19 together, and the special questions are put to the jury on more than one theory. A case pleaded on a single theory can lose to an open question that has nothing to do with its facts.

The Negligence Route, and the Year the Old Rule Died

Until 1980, a Massachusetts landlord owed a tenant remarkably little inside the rented apartment. The rule was summarized in Young v. Garwacki, 380 Mass. 162 (1980) as the law the court was about to discard:

As to the demised premises, caveat emptor reigned. The tenant took the premises as he found them.

Young replaced it, adopting a formulation written seven years earlier by Chief Justice Kenison of the New Hampshire Supreme Court in Sargent v. Ross, 113 N.H. 388 (1973), which the Massachusetts court quoted and made its own:

landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm

The same passage sets out what that means in practice:

A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk

That is the ordinary negligence standard applied to a residential landlord, and it reaches the leased apartment, not only the hallway and the stairs. The Supreme Judicial Court has since described Young as having “adopted the rule” in those words, which is how later Massachusetts cases cite it.

One boundary is worth naming because it explains why the commercial cases read differently. In Humphrey v. Byron, 447 Mass. 322 (2006), the court was asked to extend Young to commercial landlords and refused, so a commercial tenant is left with the narrower common-law rule and, after Bishop, the statutory route in section 19. A residential tenant has the broader duty. The general Massachusetts premises rules that sit underneath all of this are set out on our page about slip and fall and premises liability, and the winter-specific version on our page about snow and ice cases.

Where the Sanitary Code Comes From and What It Does for You

The state sanitary code is not a statute. It is a regulation, and knowing its parentage tells you who to ask for what.

M.G.L. c. 111, sec. 127A is the enabling provision. It directs that the Department of Public Health

shall adopt, and may from time to time amend, public health regulations to be known as the state sanitary code

and requires that the code deal with matters including “standards of fitness for human habitation”. It also contains the sentence that produces the single most useful document in a rental injury case:

Said code or a supplement thereto shall designate those conditions which, when found to exist upon inspection of residential premises, shall be deemed to endanger or materially impair the health or safety of persons occupying the premises.

Enforcement is local. Section 127A provides that “Local boards of health shall enforce said code in the same manner in which local health rules and regulations are enforced”, with the Department stepping in if a local board does not act, and it gives the Superior Court equity jurisdiction, adding that enforcement actions “shall be advanced for speedy trial”.

The designation that section 127A calls for is 105 CMR 410.000, the Minimum Standards of Fitness for Human Habitation, adopted under M.G.L. c. 111, ss. 3 and 127A and substantially rewritten in 2023. Two provisions in it decide alarm cases.

The first is 105 CMR 410.330(A), which puts the duty on the owner in unambiguous language:

The owner shall provide, install, and maintain in operable condition smoke detectors and carbon monoxide alarms in every residence that is required to be equipped with smoke detectors and carbon monoxide alarms in accordance with M.G.L. c. 148

The regulation goes on to reference the state building code, the comprehensive fire safety code and the uniform state plumbing code, and to require compliance with accepted standards. It also directs, in subsection (B), that the board of health “shall immediately notify the chief of the local fire department of any violation of 105 CMR 410.330 which is observed during an inspection of any residence”.

The second is 105 CMR 410.630, the list of conditions deemed to endanger or materially impair health or safety, which is the code’s most serious tier. Item (15) on that list is:

Failure to provide a smoke detector or carbon monoxide alarm required by 105 CMR 410.330.

Item (16) on the same list covers failure to provide and maintain a railing or guard for a stairway, porch or balcony, which is precisely the defect that injured the visitor in Scott v. Garfield.

Put those together with section 19 and the practical sequence becomes clear. A board of health inspection that cites 410.630(15) is at once a finding that the condition endangered health or safety, a public record you can obtain, and, under the last sentence of section 19, the statutory notice that starts the landlord’s clock.

Heat, Hot Water, and the Statute That Pays Your Legal Fees

Massachusetts injury law rarely shifts attorney’s fees. M.G.L. c. 186, sec. 14 is an exception, and it applies to a specific kind of landlord conduct.

Section 14 reaches a landlord of a building occupied for dwelling purposes who is required to furnish water, hot water, heat, light, power, gas or similar services and

who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof

It also reaches a landlord who interferes with the quiet enjoyment of residential premises, or who tries to retake possession by force without going to court. Violation is a crime, punishable by a fine or up to six months. And on the civil side:

Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee

Read the mental state before getting excited about it. Willfully or intentionally. Section 14 is written for the landlord who shut the heat off, not the one whose boiler broke and who was slow about it. Where it does apply it changes the economics of a small case considerably, and it stacks with, rather than replaces, the injury claim. Conduct of that kind is also frequently unfair or deceptive within the consumer protection statute, which is covered on our page about the 93A demand letter.

Who Else Can Be Sued Besides the Landlord

Naming only the landlord is the most common way value is left on the table in these cases.

The equipment is a defendant. A furnace, boiler or water heater that vented into the apartment failed in a specific, provable way, and the claim against the manufacturer or a negligent installer runs on entirely different law from the claim against the landlord. That route is set out on our page about defective product injury claims. The alarm itself can be a product defendant too, if it was installed correctly and did not sound.

The contractor is a defendant. Someone serviced that heating system, replaced that water heater, closed up that chimney or renovated that basement. Service records name them.

The utility can be a defendant, depending on what was reported and when.

And the landlord may be a public body. A housing authority is not sued the way a private landlord is; a written presentment requirement applies and its deadline is much shorter than the ordinary injury deadline. Our page on suing the government in Massachusetts covers that procedure, and it is the single most time-sensitive thing on this page. A parallel version of the same analysis for a different kind of facility is on our page about nursing home neglect claims.

Where the landlord’s failure was a statutory one that also poisoned a child, the Massachusetts Lead Law creates a genuinely strict regime that works differently again, which we cover on our page about childhood lead paint claims against a landlord.

What Carbon Monoxide Actually Does to a Claim

Carbon monoxide cases have an evidentiary problem that fire cases do not. The gas leaves the body and it leaves the building. By the time anyone thinks about a claim, the physical proof of exposure is frequently gone.

Two consequences follow. The first is medical. Carboxyhemoglobin levels fall quickly, and they fall faster once oxygen is administered, so a level drawn hours after rescue understates the exposure. What survives is the clinical picture and the neurological follow-up, and delayed neurological sequelae after carbon monoxide poisoning can appear days or weeks after an apparent recovery. Cognitive and memory symptoms that show up later are part of the injury rather than a separate problem, and they are documented the same way other brain injuries are, which is covered on our page about traumatic brain injury claims.

The second is physical. The source has to be found and preserved before somebody repairs it. Once the landlord replaces the cracked heat exchanger, the proof of the defect leaves the building in the back of a truck. Scott v. Garfield is instructive here for a reason that has nothing to do with habitability: the landlord in that case discarded the porch columns after the accident while knowing litigation was likely, and the trial judge imposed spoliation sanctions that the Supreme Judicial Court upheld. Telling a landlord in writing, early, to preserve the equipment is not an aggressive act. It is the step that keeps the evidence in the building.

Where someone died, the claim runs under the wrongful death statute rather than the ordinary injury rule, and that is covered on our page about wrongful death claims in Massachusetts. Where a family member witnessed it, there may be a separate claim of their own, covered on our page about emotional distress from witnessing an injury, and a spouse’s claim is discussed on our page about loss of consortium.

Deadlines

The ordinary Massachusetts personal injury deadline is three years, and our page on the statute of limitations covers how it is counted and the situations that change it.

Two things change it here. If the landlord is a housing authority, a city or the Commonwealth, a written presentment requirement applies on a much shorter clock, and missing it ends the claim regardless of the merits. If someone died, the wrongful death rules govern instead.

Neither of those is something to work out at the two-year mark.

What to Do After a Carbon Monoxide or Fire Injury in a Rental

The order matters more than the length of the list.

Get medical attention and say the words carbon monoxide, or smoke inhalation, out loud to the treating clinician. The tests that document exposure are time-sensitive and are not run unless somebody asks.

Do not let anyone remove or repair the equipment. The furnace, boiler, water heater, chimney, vent and the alarm itself are the case. Photograph everything before it is touched, including the alarm’s location, its make and model, and its battery compartment.

Keep the alarm. If it is on the floor, in a drawer, or in the trash, retrieve it.

Send written notice by certified mail, even now. If there is any continuing unsafe condition, section 19’s clock does not start until the statute’s form of notice is given, and there is no reason to leave that undone.

Call the board of health and ask for an inspection, then request the inspection file in writing. A citation under 105 CMR 410.630 is both proof and statutory notice.

Ask the fire department for its records. If the building was sold or transferred, there should be an inspection under M.G.L. c. 148, sec. 26F1/2(c) on file.

Photograph the whole apartment, including the absence of things. A photograph of a bare ceiling outside a bedroom door is evidence of a missing detector.

Write down who else was in the building, and when they became symptomatic. Carbon monoxide affects a whole building unevenly, and neighbors are witnesses.

Get the lease, and every message you ever sent the landlord, into one place before anything is deleted.

Do not give a recorded statement to the landlord’s insurer before you understand what your own claim is, which is covered on our page about recorded statements.

Fees for a case like this work the way they do for other Massachusetts injury claims, and how that arrangement is structured, along with the costs and expenses handled separately from the fee, is explained on our page about what personal injury lawyers charge. If medical bills have already been paid by someone else, the question of who gets repaid out of a recovery is covered on our page about liens on an injury settlement.

Questions People Ask

Q: Which Massachusetts law actually requires a landlord to put in carbon monoxide alarms?

A: M.G.L. c. 148, sec. 26F1/2, not section 26F. This trips up a great deal of published writing. Section 26F is about smoke detectors and it fires only on a sale or transfer, and the duty it creates falls on the seller. The carbon monoxide requirement is in the separate section numbered 26F1/2, and subsection (a) puts it on the owner as a continuing obligation. That subsection names landlords specifically and requires that alarms be operational “at the beginning of any rental period by lease or otherwise”, with batteries maintained and replaced “annually thereafter to insure their continued operability”.

Q: Does every Massachusetts rental need a carbon monoxide alarm?

A: No, and this is the first thing to check. M.G.L. c. 148, sec. 26F1/2(a) reaches a dwelling, building or structure occupied in whole or in part for residential purposes only if it meets one of two conditions. Either it “contains fossil-fuel burning equipment including, but not limited to, a furnace, boiler, water heater, fireplace or any other apparatus, appliance or device that burns fossil fuel”, or it “incorporates enclosed parking within its structure”. A fully electric building with no attached garage falls outside the statutory requirement. That does not end the case, because carbon monoxide in such a building had to come from somewhere, and that somewhere is usually a defect somebody is answerable for.

Q: My landlord never put in smoke detectors. Which section did he break?

A: It depends on the building, and getting the section right matters because you have to prove the violation. M.G.L. c. 148, sec. 26E(a) covers one and two family dwellings not regulated by section 26A or 26B. Section 26E(b) covers residential buildings “containing not less than three nor more than five units” not regulated by 26A, 26B or 26C. Section 26C covers “Apartment houses containing six or more dwelling units, hotels, boarding or lodging houses, or family hotels”. Section 26B covers residential buildings erected or substantially altered, and section 26A covers buildings over seventy feet. Section 26F is not a landlord duty at all.

Q: Where do the alarms have to be?

A: For the buildings covered by M.G.L. c. 148, sec. 26E(a), the statute is specific: “an approved smoke detector shall be installed on the ceiling of each stairway leading to the floor above, near the base of, but not within each stairway and an approved smoke detector shall be installed outside each separate sleeping area”. Section 26D defines separate sleeping area in a way that matters in a real apartment, providing that “Bedrooms, or sleeping rooms, separated by other use areas such as kitchens or living rooms, but not bathrooms, shall be considered as separate sleeping areas”. In three to five unit buildings, section 26E(b) additionally requires that “in all common hallways and basements of said residential buildings or structures a series of interconnected approved primary power smoke detectors shall be installed”.

Q: Does a missing alarm automatically mean the landlord loses?

A: No. Massachusetts treats the violation as proof you can put in front of a jury rather than as automatic liability. In Perry v. Medeiros, 369 Mass. 836 (1976), the Supreme Judicial Court restated the rule this way: “The general rule in Massachusetts is that violation of the safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.” The same opinion adds that a violation “is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent”. A missing carbon monoxide alarm in a building with a boiler is squarely inside what that statute was written to prevent.

Q: I told my landlord about the problem. Is that enough for a claim under section 19?

A: Only if you told him the way the statute requires. M.G.L. c. 186, sec. 19 gives the landlord a duty to act “within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition”. A phone call, a text message and a conversation in the driveway do not satisfy that sentence. There is a second route into the same duty, and tenants frequently have it without realizing it. The statute provides that the notice requirement “shall be satisfied by a notice from a board of health or other code enforcement agency to a landlord or lessor of residential premises” of a sanitary code violation. If the board of health inspected and cited your landlord, the clock started then.

Q: My lease says I am responsible for repairs. Does that defeat a section 19 claim?

A: No. M.G.L. c. 186, sec. 19 provides that “Any waiver of this provision in any lease or other rental agreement for residential use shall be void and unenforceable.” Landlords have tried a cleverer version of the same argument, reasoning that because section 19 covers conditions “not caused by the tenant”, a tenant who was contractually responsible for repairs must have caused the condition by not making them. In Bishop v. TES Realty Trust, 459 Mass. 9 (2011), the Supreme Judicial Court rejected that, holding that on such a reading “the lease provision would effectively constitute a waiver of the landlord’s obligations” and would therefore run into the same prohibition.

Q: Does section 19 protect only the tenant, or also my guests?

A: Both. M.G.L. c. 186, sec. 19 provides that “The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages.” That phrase, any person rightfully on said premises, is what carries a guest, a relative staying over, a home health aide or a delivery worker. There is one carve-out at the front of the section, and it is a real one: the duty does not apply to an owner-occupied two-family or three-family dwelling.

Q: Can a visitor sue on the warranty of habitability, or is that only for tenants?

A: A visitor can. This is the holding people miss. In Scott v. Garfield, 454 Mass. 790 (2009), a man fell when a porch railing gave way at a friend’s apartment, and the Supreme Judicial Court held “a lawful visitor may recover for personal injuries caused by a breach of the implied warranty of habitability”. The court reasoned that a lawful visitor of an occupant of housing “plainly comes within the scope of persons intended to be protected and therefore also within the ambit of the implied warranty of habitability while on the rented premises”. A guest still cannot recover for economic loss under the warranty, because that part of it belongs to the lease.

Q: Does the landlord have to have known about the problem?

A: For a negligence claim, yes. For a warranty claim, Massachusetts has not answered it. Scott v. Garfield says in terms that the court has “left open the question whether, where a tenant (or, as here, a lawful visitor) seeks to recover for physical injuries caused by a breach of the warranty, the standard is one of negligence”. What is settled is the money side: for economic loss, Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) held that “the tenant’s obligation abates as soon as the landlord has notice that premises fail to comply with the requirements of the warranty of habitability”, and that the landlord’s lack of fault does not change it. A careful case is pleaded on more than one theory precisely because that question is open.

Q: Can my landlord write the liability out of the lease?

A: No, and three separate provisions say so. M.G.L. c. 186, sec. 15 makes any lease clause that would “indemnify the lessor or landlord or hold the lessor or landlord harmless, or preclude or exonerate the lessor or landlord from any or all liability” for injury arising from the landlord’s own negligence “against public policy and void”. Section 19 voids any waiver of the statutory repair duty. And in Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973), the court said the warranty of habitability, so far as it rests on the sanitary code and local health regulations, “cannot be waived by any provision in the lease or rental agreement”. Our page on whether liability waivers are enforceable in Massachusetts covers the wider rule.

Q: What does the state sanitary code add?

A: It converts a missing alarm into a documented, officially citable defect. 105 CMR 410.330(A) provides that “The owner shall provide, install, and maintain in operable condition smoke detectors and carbon monoxide alarms in every residence that is required to be equipped with smoke detectors and carbon monoxide alarms in accordance with M.G.L. c. 148” and the building, fire and plumbing codes. 105 CMR 410.630 then lists the conditions deemed to endanger or materially impair health or safety, and item (15) on that list is “Failure to provide a smoke detector or carbon monoxide alarm required by 105 CMR 410.330.” Item (16) covers a missing railing or guard, which is the Scott v. Garfield fact pattern.

Q: My landlord shut off the heat and I got sick. Is that different?

A: It is a different statute with a much better fee provision. M.G.L. c. 186, sec. 14 reaches a landlord required to furnish heat, hot water, gas, light or similar services “who willfully or intentionally fails to furnish” them when necessary to the proper or customary use of the building. The remedy is unusual for Massachusetts injury law: the statute makes a violator “liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee”. Note the words willfully or intentionally. Section 14 is aimed at a landlord who chose to cut something off, not one who was merely slow.

Q: How long do I have to sue?

A: Three years is the usual answer for a Massachusetts personal injury claim, but the deadline is the wrong thing to be relaxed about here. If your landlord is a housing authority or another public body, a written presentment requirement applies and its clock is far shorter than three years, which is covered on our page about suing the government. A claim on behalf of someone who died from carbon monoxide runs under the wrongful death statute rather than the ordinary injury rule. Pin the deadline down at the start rather than assuming.

Q: The alarm was there but it never went off. Is anyone responsible?

A: Possibly more than one party. The landlord’s duty under M.G.L. c. 148, sec. 26F1/2(a) is not satisfied by an alarm hanging on the wall; the statute requires “working, approved” alarms and puts an annual battery obligation on the landlord. Separately, an alarm that was properly installed and maintained and still failed raises a claim against the manufacturer or the installer, which runs on different law from the landlord claim. Do not throw the device away. It is the single most important piece of physical evidence in the case, and it belongs to the question of who is responsible.