Planning for Life

Assisted Living Facilities Are Subject to Landlord Tenant Law

Posted by Harry S. Margolis on October 26, 2017

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By Harry S. Margolis

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Assisted living facilities often require that new residents pay a one-time "community fee" as well as last month's rent before moving in. A resident of one of Benchmark Senior Living's 29 facilities in Massachusetts recently sued the company alleging that this practice violates protections for tenants. Benchmark responded that as an assisted living facility it is not subject to the same rules. This has long been a claim of the assisted living industry, and it was refuted by the judge in this case.

Landlord Tenant Law

In denying a motion to dismiss in Adrienne Gowen v. Benchmark Senior Living, LLC (Suffolk Superior Court 1684CV03972-BLS2, May 5, 2017), Judge Kenneth W. Salinger held unequivocally that assisted living facilities are subject to landlord-tenant law:

     Benchmark's assertion that assisted living facilities are not subject to [landlord tenant law] because they are regulated by the Executive Office of Elder Affairs under c. 19D, is without merit. Assisted living facilities provide their residents with a combination of a place to live and an array of supportive services. The "Residence and Service Agreement" that Gowen says she executed specifies that Gowen is entitled to receive not only living accommodations, but also personal assistance and care (including assistance with bathing and grooming), housekeeping services, monitoring of her health needs, and social and recreational activities. The additional services beyond the residential tenancy are governed by c. 19D. But, nothing in that statute supersedes, either expressly or by necessary implication, the legal protections that [landlord tenant law] provides to all residential tenants in Massachusetts.

Community Fee

With respect to the $2,500 "community fee" that Ms. Gowen was required to pay on entering the Benchmark facility, Judge Salinger said that Benchmark could charge a reasonable fee for services it provides beyond the tenancy, but Benchmark's own description of the community fee included both residential and additional supportive services.  Therefore, Ms. Gowen's claim survived Benchmark's motion to dismiss.

Security Deposit

Judge Salinger also found that Ms. Gowen's payment of $5,500 as last month's rent could be deemed a security deposit because, under the terms of the "Residence and Service Agreement," Benchmark could use it to cover "the cost to repair any damage to her apartment not caused by normal wear and tear or to repair any other property of the landlord."

Class Action

Finally, Judge Salinger refused to dismiss Ms. Gowen's claim that she represented a class of residents at Benchmark facilities. Ms. Gowen's attorneys are, in fact, seeking other class representatives. If you know a current or former resident of a Benchmark facility and you might be interested in participating in the lawsuit, let us know and we will put you in touch with her attorneys. You can see a list of Benchmark facilities here and contact John Yasi, Esq., one of the attorneys bringing the case, at 978.741.0400 if you would like further information.

But What Does it Really Mean?

This ruling is very important because it confirms that elderly residents do not lose their rights as tenants by moving into an assisted living facility. These can be very important in terms of protection against eviction and negotiating for accommodations that may become necessary in the facilities. However, in the long run, it is probably less significant in terms of the financial issues at stake in this case. The assisted living facility is likely to revise its contracts to avoid running afoul of the particular rules regarding community fees, security deposits and last month's rent.

Topics: assisted living, assisted living regulations

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