In Massachusetts, the landlord pays for water and sewer unless every requirement of G.L. c. 186, § 22 is met. If even one step is missed, you cannot bill the tenant separately for water or sewer, and any amounts already collected can be treated as unlawful charges.
This memo lays out what you must do before billing, what the lease must say, how bills must be calculated and sent, and what ongoing obligations apply. The same rules apply to sewer charges calculated from the same meter or submeter. A checklist is at the end.
If you do not want to comply with § 22, the lawful alternative is to pay the water and sewer bill yourself and factor that cost into the rent.
1. Before you bill: equipment, fixtures, and certification
1. Submeters installed by a licensed plumber, at your expense. A Massachusetts-licensed plumber must install a submeter for every dwelling unit and for the common areas, so that all water in the building is measured by both the primary meter and a submeter. Equipment must meet American Water Works Association (or similar accredited association) accuracy and testing standards. (§ 22(b))
2. Each unit's submeter measures only that unit. It can measure only water supplied for that unit's exclusive use, to areas in the tenant's exclusive possession and control. It cannot pick up any common area, another unit, or anyone else's use. A shared basement laundry, outdoor spigot, or boiler feed on the unit's meter disqualifies it. (§ 22(e))
3. Water conservation devices in every fixture. Before any billing, every fixture in the unit must meet these limits (§ 22(a), (e)):
o Showerheads: no more than 2.5 gallons per minute
o Faucets: no more than 2.2 gallons per minute
o Toilets: no more than 1.6 gallons per flush, installed by a licensed plumber
4. Recheck at every new tenancy. The devices must be installed and working at the start of each new tenancy, not just the first one. (§ 22(e))
5. File a certification with the local board of health (or whichever municipal agency enforces the State Sanitary Code). It is signed under the penalties of perjury and must state that (§ 22(c)):
a. the unit is eligible for water billing under § 22(d);
b. all showerheads, faucets, and toilets are water conservation devices, and all toilets were installed by a licensed plumber; and
c. the submeter was installed by a licensed plumber and meets the accuracy and testing standards.
6. Confirm the unit is eligible. Billing can start only at the beginning of a new tenancy, and only if (§ 22(d)):
o the unit is being occupied for the first time; or
o the prior tenant left voluntarily, or was evicted for nonpayment or lease breach.
A unit is not eligible if the new tenant was involuntarily relocated from another unit in the same building or complex. You cannot convert a current tenant to water billing mid-tenancy. Once a unit has lawfully been billed for water, it stays eligible for later tenancies. Your plumber may do the § 22 work in an occupied unit to prepare it for the next tenancy.
Units on their own utility meter. If a unit is served directly by a water company meter that measures only that unit, you may bill the tenant, and the same rules apply, except the certification does not need the submeter statement in item 5(3), and the tenant's submeter-testing right in § 22(n) does not apply. On tenant request, you must apply for a meter test under G.L. c. 165, § 10, at the tenant's cost. (§ 22(p))
Public housing developments under the listed state programs cannot charge tenants for water at all. (§ 22(s))
2. The written rental agreement
You cannot bill for water unless the tenant signed a written rental agreement that clearly and conspicuously provides for the separate water charge and discloses, in plain language, the details of the submetering and billing arrangement. (§ 22(f)) A tenant at will with no written agreement cannot be billed.
The agreement (or a signed water addendum) should cover at least:
• that the tenant will be charged separately for water and sewer based on the unit's submeter;
• how the per-unit charge is calculated (see Section 3);
• the billing schedule and when payment is due;
• the tenant's right to request a submeter test and how the cost is handled;
• how leaks are handled and credited; and
• a copy of the certification filed with the board of health, attached.
You remain the water company's customer of record and are responsible for paying the water bill regardless of whether tenants pay you. (§ 22(k))
3. Calculating and sending bills
Calculate the rate from your own water bill. Take the water company bill for the period, including usage charges, the customer service charge, and taxes. Exclude late interest, penalties, and other discretionary charges. Divide by the total consumption for the whole building. That is your cost per unit. (§ 22(g))
The tenant's charge cannot exceed that cost per unit times the units delivered to that tenant's submeter for the same period.
Check the submeters against the main meter. Before billing, confirm that the total of all submeters, including common-area submeters, does not exceed the primary meter reading for that period. (§ 22(g))
No fees of any kind. You cannot charge any servicing, administrative, setup, meter-reading, meter-testing, billing, or submetering fee, however it is labeled. This includes third-party billing company fees passed through to the tenant. (§ 22(j))
What every bill must show (§ 22(f)):
• current and prior submeter readings, with the date of each;
• water used since the last reading;
• charge per unit of water;
• total charge; and
• payment due date.
Frequency and due dates. Bill at least as often as the water company bills you, or monthly if the rental agreement says so. A monthly bill is due 15 days after mailing. A bill covering more than one month is due 30 days after mailing. (§ 22(f))
Move-in mid-period. If a tenancy starts mid-billing period, mail the tenant the submeter reading on the first day of the tenancy, and bill only for usage after that reading. (§ 22(h))
Move-out mid-period. Give the tenant the submeter reading and a final bill on the last day (or mail it by the next day), using the rate from the water company's last bill. The final bill is due immediately. If unpaid, it may be deducted from the security deposit in compliance with G.L. c. 186, § 15B. If the water company later bills at a lower rate, recalculate and refund the difference promptly. (§ 22(i))
Nonpayment. Unpaid water charges are a material breach of the rental agreement, but the tenant can cure by paying in full before any court hearing on the breach. (§ 22(f)) You may never shut off or refuse water service because a tenant has not paid a water charge. (§ 22(l))
4. Leaks, repairs, and submeter disputes
Maintenance stays with you. You must keep the water supply system, conservation devices, and submeters in good working order under the State Sanitary Code, and respond in a timely way to repair requests, including leaks. (§ 22(m))
Leak credits. After a leak is repaired, work with the repairing plumber and the billing records to estimate the water lost to the leak, then reduce the tenant's bill or refund the amount. If the tenant knew or should have known about the leak, you only have to credit usage from the date the tenant notified you to the date of repair. (§ 22(o)) Document the notice date and the repair date every time.
Tenant's right to test the submeter. After receiving a bill, and within the time to pay it, a tenant may ask for an independent tester with no ties to you to test the submeter (§ 22(n)):
• If it over-reads: you replace the submeter and pay for the test, and the tester estimates the over-measured water. You credit or refund the prior period and reduce the current bill before sending it.
• If it is accurate: the tenant pays for the test. If the tenant does not pay, you may add the cost to the next water bill.
5. What happens if you get it wrong
Noncompliant water billing is one of the most common counterclaims in Massachusetts eviction cases. The statute preserves all of the tenant's remedies for overcharges and Sanitary Code violations under G.L. chapters 111, 186, and 239. (§ 22(m)) In practice, exposure includes:
• repayment of all water and sewer charges collected without full compliance, often going back the length of the tenancy;
• c. 93A claims under the Attorney General's landlord-tenant regulations (940 CMR 3.17), with possible multiple damages and attorney's fees;
• if water service is shut off or interfered with, liability under G.L. c. 186, § 14; and
• counterclaims and defenses in summary process under G.L. c. 239, § 8A, which can defeat or delay possession.
Unpaid water charges are a lease breach under § 22(f), not unpaid rent. Talk to counsel before serving any notice to quit based on them.
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Sources
• DPH Guidance for the Submetering of Water and Sewer
This memo is general information, not legal advice for any particular property. Contact Sandonato Law at 617-481-2742 or [email protected] with questions about your building.