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City and town governments are responsible for keeping their residents safe. One way that this is done is through code enforcement, headed by an Inspectional Services Department (ISD), or equivalent bodies, that enforce the various state and municipal building, health, safety, sanitary, and housing codes.

Cities and towns receive a wide variety of complaints that are handled by ISD each day. Some examples include work being done without permits, animal infestations, unsafe structures, and the neglect or wholesale abandonment of residential properties. When a complaint is received, ISD is tasked with investigating to determine whether it is true. The building and sanitary codes, in addition to laying out the minimum standards for safe work and habitation, also provide inspectors with the power to conduct inspections of private property. If blocked, barred, or otherwise denied access by an owner or tenant, an inspector may petition a court for an administrative search warrant to inspect the premises for health and safety violations and other unsafe conditions. Inspections work best when done by a team of specialized inspectors, including representatives from at least the building, health, and fire departments, so that the broadest array of health and safety issues can be identified. After an inspection, ISD is responsible for providing an inspection report or Order listing the conditions found at the time of the inspection and any violations that must be abated.

For violations that require construction or other specialized work, a homeowner or contractor will typically need to apply for a permit to do the work. The permitting process is meant to act as a safeguard at several different points throughout the life of the repairs and upgrades to protect against the danger of illegal or improperly done work. An initial review of the scope of the work and the credentials of the applicant is typically followed by rough and intermittent inspections and a final sign off on the completed work.

However, sometimes work stalls or a homeowner refuses to address and remove violations from their property after being ordered to do so. In these cases, a City or Town may with to issue tickets to address such noncompliance. Ticketing can be used as leverage to force homeowners to deal with situations on their property impacting their health and safety, and the health and safety of tenants, neighbors, and first responders, that would otherwise be ignored.

Though there are many statutes that authorize cities and towns to issue fines as a form of enforcement, two commonly used statutes are M.G.L. c. 40, § 21D and M.G.L. c. 40U. In essence, 21D allows municipalities to issue fines against individuals in the amount of $300.00 per day, while 40U allows fines to be issued against properties in amounts up to $500.00 per violation per day. One drawback to 21D tickets, from a collections standpoint, is that a ticket must go through a lengthy attachment and recording process to become a lien, while 40U tickets can be added directly after a property’s real estate tax bill after going unpaid or being upheld on appeal.

Other less common but nonetheless effective tools used by ISD in code enforcement include the removal of a nuisance, demolition of a structure, condemnation of a dwelling, and appointment of a receiver.  For meaningful code enforcement to succeed, ISD must use the inspection, permitting, and ticketing processes together to identify and investigate violations within properties, regulate their repair, and compel those repairs when necessary. When all three phases work together, the public health and safety of residents is secured.

Attorney Anthony Brunco

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