A case before the Supreme Judicial Court could have a devastating effect on assisted living facilities in the state.
The issue is whether the facilities are subject to the requirements of the security deposit statute that covers landlords and, if so, whether they have been violating those requirements by charging new residents a "community-fee".
The trial courts are split on the issue. In the case before the SJC, Superior Court Judge Chirstiopher K. Barry-Smith had granted a motion to dismiss filed by the facility. But in two other cases in the Business Litigation Session, Judge Kenneth W. Salinger held that the statue governing assisted living facilities was meant to supplement landlord-tenant laws, not supplant them.Under state law, a landlord may require a tenant to pay first and last month's rent, a security deposit equal to first month's rent, and the cost of a lock and key. Because a "community fee" doesn't fit into any of those categories, it iolates the security deposit statute, Salinger concluded.
The plaintiff in the case is the estate of a woman who moved into a Framingham assisted living facility in 2013. She was required to pay a "community fee" of $2,800, which was supposed to cover administrative costs, a service coordination plan, and move-in assistance, and contribute to a replacement reserve for buliding improvements.
The plaintiff's argument that the sizable fee violated landlord-tenant law has some surface appeal. But it ignores the differences between a garden-variety landlord-tenant relationship and what an assisted living facilty provides.
The entire assisted living industry is premised on the notion that it offers specialized housing that provides assistance with the requirements of daily living. That could include assistance with bathing, dressing, eating and using the toilet. None of those are services that would be provided by a traditional landlord.
Assisted living facilities differ from landlords in other ways. Because the services they provide often occur within a resident's individual unit, facility staff members have the authority to enter that unit much more freely than a londlord would. An assisted living provider can enter a residence to do safety checks, provide meals and change the sheets, among other things. Buf if a landlord did those things, it would be violating the covenant of quiet enjoyment.
And unlike landlords, assisted living facilities can discriminate on the basis of disability if the intitial screening process reveals that the prospective resident requires 24-hour skilled nursing care or has needs the facility can't meet.
The bottom line is that the statue in question, Chapter 19D was designed to create a new style of living. The community fees assisted living facilities assess are designed to support the services they must provide and the staffing levels they must maintain.
The SJC should reject the argument that traditional landlord-tenant law applies.
