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How to be a landlord

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HOW TO BE A LANDLORD IN MASSACHUSETTS AND AVOID LEGAL TROUBLE

By A. Joseph Ross., J.D.
Revised, January 2002

CONTENTS

Introduction

In many years of practicing landlord-tenant law, mostly, though not always, as a tenant advocate, it has become clear to me that many landlords, especially small property owners, don't fit the stereotype of the evil landlord. More often than not, they cause trouble for their tenants and themselves simply because they don't know their legal rights and obligations.

If you are like many small property owners, you've probably assumed that there was nothing to renting a unit but finding a tenant and collecting the rent.

Guess again. Most of us heard at an early age that ignorance of the law is no excuse for violating it. But all too often, the small property owner winds up in the lawyer's office only after getting in trouble. When that happens, all we can do is try to cut your losses. Please review these materials and consult with us if you have any questions. The best time to learn about these things is before you have a problem. My long experience has shown that better informed landlords are better landlords. This guide is a summary of things you may not know that can hurt you. Many of the same things also hurt your tenants.

Most of the time, your tenants want nothing more than to enjoy their apartment, pay a reasonable rent, and go about their lives. But economic hardship can drive some people to desperate measures. And the Landlord from Hell that they had last year may have destroyed their ability to trust you and made them all too willing to try to get the edge before you do. There are also, unfortunately, bad tenants in the world. I cannot tell you how to absolutely prevent getting a bad tenant. But I can tell you how to improve your odds immeasurably. And if you do get the Tenant from Hell, I can help you to minimize the damage and, if necessary, get rid of the bad tenant as quickly and inexpensively as possible. And I can help you to be a better landlord to your good tenants - and encourage them to continue to be good tenants.

This booklet is based on Massachusetts law. In many instances, the laws are similar in other states, but there are no guarantees. Many situations are very complicated. This booklet does not constitute legal advice and is no substitute for individual legal advice by a competent attorney who is familiar with all the details of your situation.

AJR

1. Some Basics

Whether you own a large apartment building or a single rental unit, you must treat the business of being a landlord as just that: a business. This means that you must act in a businesslike manner at all times. Even if your tenant is a friend and neighbor, you must be certain to treat the business relationship as a business relationship. This does not mean being unfriendly, but it does mean keeping proper records and dealing with things in a businesslike manner.

Large landlords can afford to have lawyers on retainer and fight lawsuits on a regular basis. But most readers of this guide are small landlords. As such, even one lawsuit can cost you a great deal in legal fees, aggravation, and lost rent, even if you win. But legal information is not enough, by itself, to avoid legal trouble. You also need certain business policies. Since you cannot afford a lawsuit, you must try to keep your tenants from wanting to take you to court. This is easier than it seems.

Most businesses in our society have a fundamental rule: The customer is always right. Much of the acrimony between landlords and tenants arises because people in the rental housing business all too often forget that rule. If you are dissatisfied with your purchase at a local department store, they will give you a refund with a smile. They would never say, "If you don't like it, don't shop here." A department store would never try to get rid of a customer for complaining. Yet many landlords do exactly that. Your tenant is your customer. A satisfied customer doesn't bring lawsuits.

This doesn't mean you have to comply with every request. It means that you should try to respond promptly to reasonable requests. It also means being friendly and courteous. If you approach your tenants with a chip on your shoulder, you shouldn't be surprised if they respond in kind. Much of the secret of getting along with tenants is nothing more than the secret of getting along with people in general.

This may also mean not charging the absolutely highest rent that you think you can get. It can be well worth your while to keep the rent a little lower than market in order to keep a good tenant.

2. Keep a Paper Trail

If you learn nothing else from this guide, learn to keep good written records. Roughly six thousand years after the invention of writing, in a society with almost universal literacy, many people are inexplicably reluctant to keep written records of even the simplest things. As we said in the previous section, even if you own only one rental unit, you must operate in a businesslike manner.

Maintain a file for each tenant. Keep in it a rent ledger, copies of the lease, correspondence between you and the tenant, security deposit and last month's rent documents, and any other relevant documents.

An important part of keeping a paper trail is keeping clean documents. We often get documents from clients on which they have written their own notes, hi-lightings, random phone numbers, or doodles. Courts want to see clean documents, preferably originals. If you must mark up a document, make a photocopy and make your notes on that. Don't mark up the originals. The original of the letter from your tenant is not a good place to write your notes. If you take pictures, don't write descriptions directly on the pictures. Keep them separate. Your own notes on a document may make the document inadmissible in court.

Your rent ledger should show the day the rent was received (not just the posting date), the check number, the amount, and the name of the account the check is drawn on or who paid the money. This is important. If a group of tenants sharing an apartment pay in multiple checks, your records should show the amount of each check, the date it was received, and the person who wrote it. If you have a dispute over rent, the winner may well be the person with the better rent records.

Pay attention to the distinction between a last month's rent and a security deposit, and make sure that any receipt that you give for these deposits states the purpose correctly. Generate the proper documentation for these deposits and keep copies in the tenant's file.

Often it is important to communicate with tenants in writing. Even if you communicate orally, it is a good idea to send a letter confirming the conversation in writing. Landlord-tenant disputes often turn on variant interpretations of conversations. When you write a letter, be sure to spell everything out in detail. Your letter to your tenant isn't just for the tenant. It's also for your own records, to refresh your memory years later, and, if necessary, to show a court. Date each letter and keep a copy. If you deliver letters personally by sliding them under the apartment door, note the date and time you did so on your copy. You should also save the originals of all correspondence from the tenant. If you correspond by fax, be sure to print out and save a transmission record for every fax that you send. We have seen some judges refuse to admit a fax communication into evidence without a transmission record.

Keep hard copies of all correspondence. If you fax by computer, print out and save a hard copy of every fax with the transmission record. If you use e-mail, print out and save every e-mail to and from each tenant. Be sure that the header on the printout contains the basic information of to, from, subject, and date. We've seen some e-mail software which omits this information on printouts. Write any missing information on the printout as soon as you print it out.

If you learn that a tenant is violating the lease, send the tenant a letter demanding that s/he cure the violation promptly. State in the letter that any future rent will be accepted without waiving your right to insist that the violation be cured. If your tenant can show a court that you accepted rent, month after month, while knowing of a lease violation, and without reserving your rights, the court may find that you have waived your right to complain about the lease violation.

We saw a case recently where a tenant moved out, turned in the keys, left some property in the apartment, and then, a month or so later wanted the apartment back and brought suit in Housing Court, claiming that he had been illegally evicted, without judicial process. This could have been prevented by a paper trail, preferably something from the tenant in writing about his moving intentions. Failing that, the landlord might have written letters to the tenant about the impending move or kept a record copy of a receipt given the tenant for the keys he turned in.

Keep a tickler system to keep track of lease expirations and notice dates. If you use leases with automatic renewal clauses (which we don't recommend), this is particularly important - unless you enjoy the frustration of a self-extending lease that has just extended itself automatically for another year at the old rent!

As a property owner, you have probably already learned the need to keep careful records of operating expenses for tax purposes. Before the repeal of rent control in Massachusetts, these records also were important in justifying a rent increase. That may still be the case if you own property subject to a subsidy program which regulates rents.

When you talk to anyone at any business or government agency, get the name of the person you talk to. "Somebody in the office told me..." has little credibility. If anyone won't give you their name, ask for someone who will.

A casual, informal system of recording and responding to tenant complaints is a lawsuit waiting to happen. Document tenant complaints, work assignments, repairs made, and denials of access for repairs in an organized way. The more organized your records, the more credible your presentation will be, if necessary, before a court or administrative agency.

3. Use Written Agreements

There are two reasons for using written agreements. The first is that an oral agreement is only as good as the memory and the honesty of the parties to the agreement. With a written rental agreement, you can spell out without ambiguity, and without fear of later memory lapses, the terms of the tenancy and who is responsible for what. This is part of keeping a paper trail.

Another reason for using a written lease or tenancy-at-will agreement is to take advantage of explicit provisions defining the terms of the tenancy. For example, if you have a written agreement, you can restrict the tenant's right to sublet. Without express provision in writing, the tenant has virtual carte blanche ownership of the apartment during the tenancy.

Unless the contract says otherwise, the tenant has the right to bring in new occupants without your approval. The tenant has the right to have pets unless there is a written agreement to the contrary. Surprisingly, there is no law entitling you to a key to the apartment. If you want the right to a key, and to restrict the tenant's right to change locks, you must reserve that right in a written agreement.

Under provisions of the State Sanitary Code, you are responsible for paying for the fuel for heat and hot water. You can only require the tenant to pay for heat and hot water in a written agreement. Small, nonprofessional landlords renting unheated apartments by oral agreement have been sued successfully for tenant's heating fuel costs.

Make sure that the rental agreement reflects reality. Your ability to enforce lease provisions depends, to some extent, on the lease provisions relation to reality. For example, the standard RHA lease forms provide that only the persons named in the agreement can occupy the apartment. If you intend to enforce that provision rigorously, make sure that all persons, including children, who are going to occupy the apartment are listed in the lease. Otherwise, you create an ambiguity which may work against you.

If you are going to allow the tenant to have a pet, delete or alter the clause in the standard lease form which prohibits pets. If you are allowing the tenant to have a washing machine, air conditioner, or waterbed, make sure that the standard lease clause prohibiting those items is crossed out. Make sure that all changes are made on all copies of the lease. You and the tenant should both initial each change.

Make sure, when you meet with the tenants, that the broker didn't tell them that some lease clause which is important to you doesn't really matter. This happens all too often and causes no end of headaches for both landlords and tenants.

Make sure it is clear what is included in the rent. The agreement should accurately reflect whether heat, hot water, electricity, and gas are included in the rent or are to be paid for separately. If you are making additional charges for parking or recreational facilities, make sure the agreement says so. If you are providing parking, make sure the clause to the contrary in some lease forms is altered accordingly.

Make sure all the blanks have been filled in correctly. Make sure the tenant initials the rent clause where provided. If you are relying on a tax escalator clause, make sure that it is filled in correctly, with the correct tax years and with the correct percentage, not simply the word "proportionate."

Make certain that all paperwork is complete before you give the tenants the keys and permit them to move in. We've seen too many problem tenants who never signed a lease before they moved in and refuse to do so afterwards. If you collect rent and let the tenants move in before the lease is signed, a court may find that you have created a tenancy at will.

For the same reason, if you are renewing a lease, make sure that a new lease or lease extension is signed before the expiration of the old lease. Once the tenant has held over after the expiration of the lease, a tenancy at will can be created if you accept rent.

If a tenancy at will is created, you can lose the benefit of having a written rental agreement. If you find yourself with tenants who have moved in without completing the paperwork or with tenants who have held over their lease, be careful how you accept rent. See the section on Tenancies and accept rent in the manner described there for tenants at sufferance.

If you listed the apartment with a realtor, and the realtor prepared the lease, be sure you go over it, with your lawyer if necessary, to make sure that it reflects your understanding of the arrangement. Just because someone else prepared the lease doesn't make it any less a binding contract.

It is not uncommon for a landlord to offer tenants a rent discount in exchange for doing snow removal, taking out the trash, or fixing up the apartment. Often, the rent discount isn't spelled out, it exists only as a lower rent figure in the lease. Since these things are your responsibility as landlord, the tenant can then refuse to do them and still insist on paying the rent set forth in the lease. You can't condition a lease on the tenant's willingness to do what is your responsibility as a landlord.

However, you can agree, in a separate written agreement that the tenant will perform certain services in exchange for payment. The payment may take the form of a rent deduction. Then, if the tenant doesn't do what s/he agreed to do, or doesn't do it properly, you can simply terminate that agreement and stop accepting the rent deduction. Make sure you keep records of the amounts involved. If you have such an agreement and you pay or credit the tenant more than $600.00 in any calendar year, be sure to send the tenant IRS form 1099-MISC.

4. Screen Tenants

Good tenant relations starts with your choice of tenants. It's hard to evict tenants, even for non-payment of rent. It's much easier not to rent to a problem tenant in the first place.

You should have each tenant fill out an application. A simple form is available from the Greater Boston Real Estate Board/Rental Housing Association, whose address appears at the end of this booklet. Be careful not to ask for irrelevant or unlawful information, such as race, religion, age, or sex, which could give rise to a discrimination claim. If you have access to a credit reporting agency, do a credit check and speak with the present and previous landlords and work references.

But beware. Landlords sometimes are sometimes hesitant to speak about a problem tenant. The current landlord may have a special incentive to give a glowing recommendation to a tenant he or she wants to get rid of. A more useful reference may be the landlord before the current one, who will have less reason to be untruthful. Ask specific questions. Did the tenant pay all rent due? On time? Did they keep the apartment clean?

Despite all your efforts, no system is perfect, and some problem tenants may slip through the cracks. One answer is to rent to someone responsible who is known to you or your friends. Lowering the rent to get a responsible tenant can pay off by saving you unpaid rent, broker's commissions, and legal fees - not to mention aggravation. Once you find good tenants, keeping rent increases moderate will help you keep them. Remember this rule about investments: The higher the return, the higher the risk.

Students, especially undergraduates, are a particular problem. At best, they may be in their first apartment and not know how to take care of the place or how to be considerate of neighbors. They may simply not realize that their loud stereo at 3:00 AM disturbs other residents. At worst, they may hold weekly keg parties and do extensive damage to your property. Many landlords have found that, in general, undergraduate students and working people simply do not mix in the same building.

There are now tenant screening services who will provide credit, prior landlord, and reference checks on tenants. Some check court indexes to see if a tenant has been involved in legal proceedings with a prior landlord. These services are generally less expensive than the cost of evicting a problem tenant. But they must be used with judgment. A tenant who had a bitter dispute with a bad landlord may appreciate a good landlord and go out of their way to be a good tenant in return.

If possible, try to see a prospective tenant's current living quarters. One professional landlord we know of likes to try to sign a new lease in the tenant's kitchen. He feels, with some justification, that he can learn valuable information about new prospective tenants by seeing how they keep their kitchen.

A special problem arises when you buy a building with tenants already there. It's usually best to try to meet the tenants before you sign an agreement. Then you can ask the seller for information about them and decide whether you want to buy a building with those tenants in it or find out whether they are moving soon. Any representations by the seller about tenants (or anything else, for that matter) should be written into the purchase and sale agreement. You have good reason to be suspicious about any representations that the seller doesn't want to put in writing.

Ultimately, the decision on whom you should rent to is up to your own judgment. One landlord we know has a blanket rule against students, and his staff enforces it. But if the students manage to meet with him and he believes that they will be responsible tenants, he will make an exception. No rule is absolute. Keep your eye on the goal: to have tenants who will take care of your property and pay the rent on time.

A special word about real estate brokers: Some are competent. Some are honest. Some are both honest and competent. Unfortunately, too many are neither. If you must list a rental with a broker, make sure you meet with the tenant yourself. Not only do you want your own chance to approve the tenant, but you want to find out what the broker promised in your name. Some of the most intractable landlord-tenant disputes have to do with things the broker promised the tenants but never told the landlord! Others arise because the broker told the tenant that certain lease clauses, such as no pets or no smoking in the apartment, don't really matter or mean what they say.

5. Utilities

The State Sanitary Code provides that you can only require a tenant to pay for utilities if the utilities are separately metered, through meters which serve only that tenant's unit. You cannot, even inadvertently, make the tenant pay for utilities for any other part of the building. In some small buildings, it is common for basement lights, outlets, or laundry facilities to be metered to the unit once occupied by the owner and now occupied by a tenant. When you acquire a building, have the gas and electric service checked to make sure that the metering is proper. Otherwise, you could find yourself reimbursing tenants for their electric or gas bills.

There is one exception. In a building of three or fewer units, a light fixture in a common hallway may be metered to a unit on the same floor provided that the rental agreement explicitly states that the tenant is responsible for paying for that light and the owner notifies the occupants of all other units. These requirements are complicated and must be observed to the letter. For that reason, we recommend that you straighten out the metering, rather than trying to rely on this exception.

An agreement for the tenant to pay for fuel for heat and hot water must be in writing. When the agreement is not in writing, tenants have been known to sue the landlord for all funds the tenant has expended on fuel. Under the most recent decisions of the Massachusetts Appeals Court, your liability in such cases is usually limited to $25.00 if the tenant has verbally agreed to pay for fuel. But if the tenant can convince the court that he or she was deceived in some way, you could be liable for all the tenant's fuel costs, past and future, or even double or treble that amount, plus the tenant's attorneys fees. Even if the tenant is only awarded $25.00, you can also be ordered to pay the tenant's attorneys fees, which may be substantial. The safest course is to have the agreement in writing. The consequences of violation can be expensive.

6. Housing Discrimination

Under state and federal law, you cannot discriminate against prospective tenants based on race, religion, color, national origin, sex, sexual orientation, age, ancestry, marital status, or because a person is a veteran or a member of the armed forces, blind, hearing impaired, otherwise handicapped, or has children, or because of a person's source of income.

Discrimination includes refusing to rent, setting different rental terms, providing different services or facilities, stating falsely that an apartment is unavailable, and advertizing or making any statement which indicates a preference based on race, religion, color, etc.

The "source of income" rule sometimes causes confusion. You cannot refuse to rent to a person because that person receives any form of public assistance. But you may refuse to rent to someone because, regardless of source, his or her income is not enough to be able to afford the rent. You must take care to apply the same standard of affordability to everyone, regardless of the source of their income. Here again, careful record-keeping can avoid problems.

Take care what you tell people when you turn them down for an apartment. If you tell them you're turning them down because you don't take subsidized tenants, or you don't take children, you're asking for a lawsuit. If you apply a neutral standard which applies to all prospective tenants, you can explain that the rent is too high for their income, and you don't think they can afford the apartment. A common rule of thumb is that no tenant should be paying more than one-third of his or her monthly income in rent. Verify income. It may come as a surprise to you, but some people lie (Really!).

In general, you may not refuse to rent to a tenant because the tenant has children. This creates a problem for many small property owners because of the dangers of lead paint and the high cost of deleading. Your liability insurance carrier may also pressure you to avoid renting to families with children. But since discrimination is against the law, you must find other ways to protect yourself from liability. See the section on lead paint for more details.

Under state law, you may refuse to rent to a tenant with children in an owner-occupied two-family dwelling or in a dwelling containing three or fewer apartments if one apartment is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. For this purpose, an elderly person is someone age 65 or over, and an infirm person is one who is disabled or suffering from a chronic illness.

You may also refuse to rent to a tenant with children in a temporary rental of a single unit for a period of one year or less if you are the owner or tenant of the unit and usually occupy it as your principal residence.

Although you cannot refuse to rent to anyone because of their sexual orientation, the law explicitly allows you to refuse to rent to anyone whose sexual orientation involves minor children as the sex object.

7. Disabled Tenants

Both state and federal law prohibit discrimination against tenants with disabilities. This is a difficult area because it is not sufficient just to treat all tenants or rental applicants equally. The law also requires you to treat some people differently by making "reasonable accommodations" for a tenant who has a physical or mental impairment which substantially limits one or more major life activities. Some examples are hearing, mobility and visual impairments ,alcoholism, mental illness, mental retardation, or AIDS.

The really hard question is what is a "reasonable" accommodation. The answer depends entirely on the situation. If a tenant needs a wheelchair, you must install a wheelchair ramp because you can do so easily and inexpensively. An elevator, on the other hand, may not be reasonable. If you have a "no pets" policy, you must make an exception for a guide dog. If you have to make changes to the physical facilities, you can condition any changes in the physical facilities on the tenant's agreeing to restore the property to its original condition when the tenant moves out, provided that the requirement is "reasonable."

"Reasonable accommodation" does not mean that a person with a disability is excused from complying with the basic obligations of a tenancy. But it does mean that they can have help or can comply in a manner different from other tenants. The law does not require you to rent to a person who directly threatens the health or safety of others or who is currently using illegal drugs.

8. Lead Paint

By law, you can be held responsible for the presence of lead paint in a unit sometimes even if you did not know it was present. You can even be held liable for lead poisoning in a child who regularly visits your tenants. For this reason, it is important to find out all you can about lead paint when you are negotiating to buy a property. Ultimately, deleading properties as soon as possible is the only completely effective way to deal with lead paint issues. When you are considering a purchase, figure the cost of deleading into your budget. Cities and towns often have programs, including loans and grants, to provide financial assistance for deleading. This can both increase the value of your property and, if done properly, eliminate dead paint as a source of problems.

If a child under age 6 resides or will reside in the unit, the unit must be deleaded completely. You cannot refuse to rent to a tenant because the tenant has children and the unit contains lead paint (See the section on Housing Discrimination.). Since the tenant must vacate the unit while deleading is taking place, you may also be required to pay for the tenant's temporary lodging during deleading.

At the same time, you may not be able to afford to delead. Some landlord lawyers suggest that you try to market the unit only to friends or relatives without children. But there has been no court ruling on whether this is legal, and it may violate anti-discrimination laws.

If no one has suffered lead poisoning yet, you can delay complete deleading by developing an emergency lead management plan and obtaining a Letter of Interim Control from a licensed inspector. The inspector must do an inspection and determine if any urgent lead hazards are present, such as chipping and peeling lead paint; lead dust; or structural defects, such as roof or plumbing leaks or deteriorating windows that could cause damage to lead-containing surfaces.

If these or any other urgent problems are found, you will have to abate or contain them and have a re-inspection before you can get a Letter of Interim Control. You must provide your tenants with educational materials and notices from the Department of Public Health as part of the emergency lead management plan.

A Letter of Interim Control is valid for one year and can be renewed for one more year. After that, you must delead completely and obtain a full Letter of Compliance. The Letter of Interim Control can be rescinded if you fail to maintain the required standards of lead control.

If your tenant has been withholding rent because of lead paint violations, you can ask the court to order that the withheld rent be applied toward the deleading costs. But if the tenant is also withholding rent because of other code violations, only the portion attributable to lead violations can be applied to deleading. This is a new law, and we expect a lot of litigation before its meaning becomes clear.

A revised lead law was enacted during the 1993 session of the Massachusetts Legislature and took effect on 14 April 1994. New regulations now allow encapsulating, rather than removing, lead. All lead-removal must be done by a certified deleader and inspected by a certified lead inspector. Since these are private contractors, their quality varies, and the danger of collusion between lead inspectors and deleaders, so that an inspector may pass a unit which still contains unlawful levels of lead. This can result in further problems for you down the road, when an apartment you thought was lead-free turns out to need deleading all over again. If possible, you should try to get a town or state inspector to verify the results of the final deleading inspection. New technologies and increased sensitivity to the cost of deleading are producing new ways to alleviate the financial burden of deleading.

9. Financial Aid for Deleading

You can get some help from the state with the cost of deleading. Massachusetts provides a state income tax credit equal to the cost of deleading or $1500.00 per dwelling unit. There is also a credit for the costs of interim control deleading measures in the amount of $500.00 or one half the cost of the interim control measures, whichever is less. The amount of the credit for interim controls applies to the total limit of $1500.00. Only residential properties qualify for the Lead Paint Credit.

The Lead Paint Credit covers work done in actually deleading contaminated areas. Deleading, for this purpose, means the removal or covering of contaminated paint, plaster, or other materials that could readily be accessible to children under six years of age. Only costs incurred for legally required deleading qualify for the credit. Costs of repainting or refinishing deleaded surfaces are not eligible for the tax credit.

In order to take the Lead Paint Credit, you must be the owner of the premises and meet the following requirements:

  • The unit must be inspected by an inspector who is registered or licensed by the Department of Public Health, Childhood Lead Poisoning Prevention Program. The inspector must establish the presence of dangerous levels of lead in the residence, in violation of the lead paint law;

  • the contaminated areas must be deleaded or interim control measures undertaken in a manner prescribed by state regulations;

  • the property must be reinspected by a registered or licensed inspector, who certifies that all materials on the premises that contained dangerous levels of lead have been properly deleaded and issues a Letter of Compliance or Letter of Interim Controls.

You are entitled to take the Lead Paint Credit in the taxable year in which the property was brought into full compliance or in the year in which the payment for the deleading was made, whichever is later. To take the credit, you must complete and file Massachusetts Schedule LP and attach a copy of the Letter of Compliance or Letter of Interim Control.

If the lead paint credit is greater than the amount you owe on your state taxes for the year, you may carry over the balance into the next year, continuing for up to seven years. In order to take advantage of the credit, you must follow certain procedures strictly. For further information, call the Massachusetts Department of Revenue at 617.727.4545 or 800.392.6089.

The Massachusetts Housing Finance Agency administers a program called "Get the Lead Out," which provides low-interest loans to delead homes with one to four dwelling units. For more information, call the MHFA Office of Single Family Programs at 617.451.2766.

Some cities and towns also administer grant or load programs for deleading. Call the Community Development Office or housing agency in your city or town.

10. Lead Paint Notification

Effective 1 September 1995, you must provide all prospective tenants with an official notice outlining the hazards of lead poisoning on a form prepared by the state Department of Public Health. You must enclose a copy of the most recent lead inspection report for the unit if there has been one, a letter of "interim control" if intermediate steps are being taken to control the lead paint, or a letter of compliance indicating that any necessary deleading measures have been taken. Tenants must sign a statement certifying that they have received these materials.

Between 1 December 1995 and 1 December 1996, you were also required to provide these same materials to all existing tenants. If you have not done so, do it now.This is required whether or not the tenants have children under the age of 6. Tenant notification forms can be obtained free of charge from the state Department of Public Health. We also have forms available for our clients. The tenant notification can also be included in a written lease and has been incorporated into some versions of the Greater Boston Real Estate Board/Rental Housing Association standard form lease.

This notification requirement parallels the tenant notification requirements under Title X, a comprehensive federal lead poisoning prevention law signed by President George H. W. Bush in 1992.

If you fail to comply with these provisions, you will be liable for all damages caused by the failure to comply and will be subject to a penalty of up to one thousand dollars. A violation by any person engaged in trade or commerce is also considered an unfair and deceptive act or practice under the consumer protection law, giving rise to potential liability for treble damages plus attorneys fees.

11. Rent Control

As a result of a statewide ballot question in 1994, rent control ended for almost all tenants on 31 December 1996. Certain subsidized apartment complexes still have their rents regulated by HUD or by the Massachusetts Housing Finance Agency (MHFA). There are also about a dozen communities in Massachusetts that still have rent control for mobile home parks only.

12. Satellite and Cable TV

State law provides that you cannot refuse to permit a cable TV operator access to your building to provide cable service to the tenants. Your are deemed to have consented when the cable operator delivers to you a copy of the state cable TV law and a signed statement in which they agree to be bound by its terms. You cannot prevent a cable operator from entering the building for the purpose of installing or maintaining the cable system if one or more tenants have requested cable. The cable company cannot install cable in an individual unit without permission from the tenant.

The state law provides that the cable operator must install the cable TV system at no cost to you, must indemnify you for any damage arising from the installation, and must not interfere with the safety, functioning ,appearance, or use of the dwelling. If the value of your property is diminished by the cable installation, you can file a legal action to recover damages. A cable operator cannot interfere with any tenant's existing rights to use any existing master or individual antenna system.

You cannot discriminate, in rental or other charges, between tenants or occupants who subscribe to cable TV and those who don't. However, you may require reasonable compensation from the cable company in exchange for permitting the installation of the cable systems.

A regulation of the Federal Communications Commission provides that you cannot prohibit any tenant from installing a TV antenna, within the part of the building which is under the tenant's control. The regulation applies to video antennas, satellite dishes less than one meter in diameter, and wireless cable antennas. That means that you can prohibit a tenant from putting an antenna on the roof, or on the exterior of the building, but you cannot prohibit the tenant from putting one inside a window or on a porch or patio which is part of the tenant's apartment.

The FCC regulation prohibits any restriction on property within the exclusive use or control of the tenant which impairs a viewer's ability to install, maintain, or use a video antenna. A restriction impairs if it unreasonably delays or prevents the use, unreasonably increases the cost, or precludes a viewer from receiving an acceptable quality signal. The regulation does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the purpose.

13. Habitability

The State Sanitary Code contains detailed requirements for the physical condition of all rental units. This includes many requirements that we ordinarily would not associate with "sanitation," such as requirements for security locks and regulations concerning who pays for utilities. Here are some of its requirements:

  • Heat: You must provide and maintain a heating system in good operating order. You must provide and pay for heating fuel unless the tenant is required to supply the fuel under a written rental agreement. From 16 September to 14 June every room must be heated to a temperature of at least 68 degrees Fahrenheit between the hours of 7:00 a.m. and 11:00 p.m. and at least 64 degrees between the hours of 11:01 p.m. and 6:59 a.m. During the heating season, the maximum heat allowable in the apartment is 78 degrees

  • Cockroaches and Rodents: In a dwelling of two or more units, you must maintain the units free from rodents, cockroaches, and insect infestation and are responsible for exterminating them. Upon reasonable advance notice, the tenant must give you access for exterminating.

  • Kitchens: You must provide, within the kitchen, a sink of sufficient size and capacity for washing dishes and kitchen utensils, a stove and oven in good repair, and space and proper facilities for the installation of a refrigerator. NOTE: You do not have to provide a refrigerator. However, if you do provide a refrigerator, or agree to provide one, there are other laws which require you to continue doing so.

  • Water: You are responsible for providing and paying for water. You cannot require the tenant to pay for water.

  • Hot Water: You must provide and maintain in good operating condition the facilities capable of heating hot water to a temperature of not less than 110 degrees and not greater than 130 degrees Fahrenheit, in a quantity and pressure sufficient to satisfy the ordinary use of all plumbing fixtures. You are required to pay for the fuel for heating the water unless a written rental agreement provides that the occupant provides the fuel.

  • Structural Elements: You must maintain the foundation, floors, walls, doors, windows, ceilings, roof, staircases, porches, chimneys, and other structural elements of the dwelling so that it excludes wind, rain, and snow; and it is rodent-proof, weathertight, watertight, and free from chronic dampness; in good repair, and in every way fit for the use intended.

  • Snow Removal: You are required to keep all means of egress at all times in a safe, operable condition. You must keep exterior stairways, fire escapes, egress balconies, and bridges free of snow and ice. You cannot require the tenant to be responsible for snow removal.

  • Extermination: As owner of a rooming house or in any other dwelling containing two or more dwelling units, you are responsible for maintaining the premises free of rodents, skunks, cockroaches, and insect infestation.

  • Garbage and Rubbish: As owner of a rooming house or in any other dwelling containing three or more dwelling units, you are responsible for collection and final disposal of garbage and rubbish. As owner of any parcel of land, vacant or otherwise, you are responsible for maintaining it free from garbage, rubbish, or other refuse. In any dwelling, you are responsible for maintaining common areas free of garbage, rubbish, other filth, or causes of sickness. Your tenants are responsible for maintaining in sanitary condition parts of the building occupied or controlled by one occupant exclusively.

  • Smoke detectors: You are required to provide and maintain all smoke detectors required by state laws and regulations.

  • Locks: Every entry door of the building, every door of the main common entryway, every exterior door into the building, and every entry door of each apartment must be "capable of being reasonably secured against unlawful entry" and properly fitted with an operating locking device. The main entry door of a building containing more than three apartments must be equipped to close and lock automatically with a lock, including a lock with an electrically-operated striker mechanism, a self-closing door, and associated equipment. Every opening exterior window must also be capable of being reasonably secured and properly fitted with an operating locking device.

You should get a copy of these requirements before renting any unit. A copy of the Code is available at the State Book Store, at the State House, for about $4.00 and is money well spent.

14. Rent Withholding

Your tenants have the right to stop paying rent if conditions are not being corrected, provided they meet all of the following requirements:

  • The conditions are serious enough to endanger or materially impair the tenant's health or safety;

  • The tenant can show that you knew of the conditions before the tenant was in arrears in rent. This usually means a copy of a written complaint to you or a notice from the local code enforcement agency. The law presumes that you knew of conditions which have existed since the tenant first moved in (or since you acquired the building, if the tenant has been there longer).

  • The violations were not caused by the tenant or by anyone acting under the tenant's control;

  • The violations can be repaired while the tenant continues to live in the apartment. Lead paint is an exception to this rule. You are required to provide the tenant with alternate housing while the apartment is being deleaded.

You won't necessarily get all the withheld rent back when the repairs have been made. The tenant is usually entitled to an "abatement," a credit off the rent for having had to live with the conditions until they were repaired. However, a court can order that rent withheld because of the presence of lead paint be applied towards the cost of deleading.

At the present time, there is no legal requirement for tenants to place withheld rent in any form of escrow account. Legislation which would require tenants to put withheld rent in escrow is pending as of this writing.

Repair and Deduct. Under certain circumstances, a tenant can make the repairs and then deduct the cost from the rent. This can be done if the tenant first has a code inspection and verification that violations exist and that they may endanger the tenant's health and safety. After you have been notified by the code enforcement agency, you have 5 days to begin repairs and 14 days to substantially complete them. If you do not make the repairs within the time limit, the tenant may have the repairs made and deduct the cost from the rent. The tenant may not deduct more than 4 month's rent in any 12-month period. You can sue to recover any excess amounts deducted, but you cannot combine that claim with an eviction action.

15. Building Security

A number of recent lawsuits have produced high verdicts for tenants suing their landlords for negligence in maintaining building security. The State Sanitary Code requires that a dwelling "shall be capable of being reasonably secured against unlawful entry." Every entry door of the building and of each unit and every openable exterior window must be "capable of being reasonably secured from unlawful entry" and be "fitted with an operating locking device."

In a building containing more than three units, the main entry door must be able to close and lock automatically with a lock, including a lock with an electrically-operated striker mechanism, a self-closing door, and associated equipment.

These are the minimum requirements. If a tenant sues you because they were injured or their property stolen by an intruder, your actions will not be measured by the minimum legal requirement, but by what was reasonable. If you regularly leave security doors open, or give plumbers, carpenters, and "handymen" keys to tenants' apartments and leave them alone there, or fail to respond promptly to requests to repair locks, you are vulnerable to claims for negligent security. If you know that your property is in a high crime area, inadequate lighting or locks can cost you far more than the cost of maintaining proper security.

16. Disputes Between Tenants

Disputes between house-mates or between tenants in neighboring apartments can be very difficult for a landlord to deal with. You may be tempted to avoid getting in the middle of these disputes, and that is often the best course. But you can't always avoid involvement. We can't tell you how to handle every dispute, but we can try to offer some guidance.

It is easier to stay out of a dispute between tenants in the same apartment. However, when the lease is up for renewal, you have the right to determine which tenants, if any, you will allow to stay under a new lease. So long as you are not engaging in unlawful discrimination or retaliation, you can enter into a new lease with some house-mates and ask others to leave. If a court action is necessary to evict the tenant that you have asked to leave, it can get complicated. You may need to bring the eviction action as co-plaintiff with the tenants with whom you have signed the new lease.

It can be harder to stay out of a dispute between tenants of neighboring apartments. Lease clauses generally obligate tenants not to disturb residents of neighboring apartments, and courts have held that these clauses give you both the right and the obligation to control such conduct. You need to proceed carefully, since it may cause you more trouble if you take action against the wrong party. You can do a lot to avoid such disputes by trying to encourage an atmosphere of quiet and cooperation among tenants.

There are mediation services available which can often be helpful in such instances. In some courts, we have seen court personnel who can be very helpful in trying to resolve a dispute by mediation. Unfortunately, not all courts are so helpful.

17. Repairs

It is essential to have a regular, formal system, including regular record-keeping, for tenants to report the need for repairs and for getting necessary repairs done. When a tenant facing eviction files counterclaims for failure to make essential repairs, there is no substitute for records kept in the ordinary course of business, showing complaints received and actions taken.

It is also important to monitor the people you hire to do work for you. Some landlords try to hire unlicensed and unskilled handymen, hoping to save money on repairs. This can be false economy. Doing a job right the first time can often be less expensive than having to fix a sloppy job after several failed attempts, not to mention litigation with a tenant who has become frustrated and has begun withholding rent. A tenant can make serious legal trouble for a landlord who uses unlicensed workers and doesn't get proper permits to do work.

Another reason for monitoring tradespeople is that some may steal from tenants or damage their property. We know of one instance where a plumber, left alone in an apartment, made a long-distance call from the tenant's phone. And many tradespeople seem incapable of making or keeping appointments. Your tenants are required to allow access for repairs, but, except for emergencies, they are entitled to an appointment with reasonable advance notice. They will tend to blame you if they stay home from work and the painter, carpenter, or plumber doesn't show up. And if tradespeople show up without an appointment, the tenant may be perfectly justified in refusing to let them in.

Some tradespeople have been known to fail to show up for an appointment and then to report to the landlord that the tenant wasn't home or wouldn't let them in. Then they will charge you for the service call, and you will blame the tenant, who was waiting for them all along.

These are all good reasons why you or someone you trust should accompany workers in tenant apartments whenever possible.

18. Illegal Drugs

If you are aware that a tenant is involved in illegal drug-related activities, state law requires you to "take all reasonable measures" to evict the tenant "as soon as it can be lawfully done." If you knowingly tolerate illegal drug activity on your property, you may be subject to a fine of up to $1,000 and a prison sentence of from three to twelve months. You also run the risk of the state confiscating your property. Other tenants may move out or withhold rent because of the unsafe conditions associated with drug activities.

The law gives you some special remedies to evict a tenant quickly when illegal drugs are involved. If a tenant is involved in illegal drug activities, you can begin immediate legal action against the tenant, without waiting for the standard notice requirements. The statute used to say that you could "without process of law, make immediate entry upon the premises." But that has been repealed. It was less helpful than it appeared because it could subject a landlord to litigation even more costly than the eviction process.

Evicting a tenant for illegal drug activities requires proof that these activities are taking place on the premises. Without a lab analysis, a bag of white powder is only a bag of white powder. You do not have the right to enter the unit and take what you believe to be illegal drugs for analysis. If you believe that illegal drug activities are taking place on your property, you should go to the police. They can assure your safety and obtain the evidence that you will need in court.

19. Security Deposits and Last Month's Rent

This is the most common problem area for the small property owner. Because the law is very complex and the consequences of even an innocent misstep can be expensive, we generally recommend that you do not charge a security deposit, but only a last-month's rent deposit. Whatever you do, be careful to specify in writing the type of deposit you are charging and refer to it correctly and consistently.

Under current law, the security deposit provides very little protection against a tenant damaging the apartment. Almost any damage will cost more than the deposit. If you try to keep any part of the deposit for damages, you can be almost certain of a lawsuit from your tenant. And if the court disagrees with any part of the deduction, the tenant's award will be trebled, and you will have to pay the tenant's attorney's fees. It's a lot cheaper and less aggravating to protect yourself by carefully screening tenants.

Under Mass. General Laws, ch.186, 15B, at the beginning of the tenancy, you may charge only:

  • rent for the first month;

  • rent for the last month, calculated at the same rate as the first month;

  • a security deposit equal to the first month's rent; and

  • the purchase and installation cost for a key and lock. This does not mean a key deposit. The law does not allow a key deposit.

The law also regulates how you can accept and hold these funds. For a security deposit, you must:

  • place it in an escrow account in a Massachusetts bank free from the reach of your creditors;

  • transfer the deposit to the new owner when you transfer the premises;

  • give the tenant a receipt showing the amount of the deposit, your name, the address of the premises, and the name of the bank and the account number in which the security deposit is being held;

  • give the tenant a statement of the present condition of the premises (The Greater Boston Real Estate Board has a form to comply with this requirement.);

  • if the tenant submits to you a separate list of damages, return a copy of the tenant's list to the tenant within fifteen days of receiving it, with either your signed agreement with the list or a clear statement of your disagreement attached;

  • pay the tenant 5% interest per year (or the amount of interest you receive from the bank each year if that is less) on the deposit;

  • keep careful records on the security deposit and make them available to the tenant at reasonable times.

You must return the deposit within 30 days after the end of the tenancy. You may only deduct unpaid rent which has not been validly withheld or deducted, taxes due under an escalator clause, and the cost of damage the tenant has done to the premises (This does not include normal wear and tear). If you deduct for damages, you must follow the procedure in the statute exactly.

You must provide the tenant with an itemized list of damages, signed under penalties of perjury, and written evidence of repair cost (such as estimates, bills, invoices, or receipts) within 30 days of termination of the occupancy. This must be followed exactly, or you could be hit with treble damages plus attorneys fees. Be careful. We've seen landlords hit with damages just because they didn't sign the list under penalties of perjury!

For the last month's rent, you must:

  • give the tenant a receipt that states:

    • the amount of the rent,
    • the address of the premises,
    • the person receiving the rent,
    • that you must pay 5% interest, and
    • that the tenant should provide you with a forwarding address where the interest may be sent; and

  • pay the tenant 5% interest yearly or notify the tenant that the interest may be deducted from the next rental payment. You don't have to hold the last month's rent in an escrow account, but you may not deduct for damages to the unit from the last month's rent. If you do use an escrow account for last-month's rent, you may pay the tenant the amount of interest you actually receive in the account, if it is less than 5%.

If you fail to comply with any of these requirements, the law allows the tenant to sue you for damages including return of the deposit. For some violations, damages include three times the interest due or three times the amount of the deposit, plus the tenant's attorney's fees. The Massachusetts Appeals Court has ruled that you may avoid the treble damages by returning the security deposit on demand. (Castenholz v. Caira, 21 Mass. App. Ct. 758, 490 N.E. 2d 494 (1986).) A violation of any of these provisions may also be a violation of Mass. General Laws, ch.93A, the Massachusetts Consumer Protection Act.

If you have already violated the law, it is generally safest to return the security deposit immediately to avoid having to pay treble damages. You may not like to do this, especially where the tenant owes rent or has severely damaged the unit. But even if it isn't clear that you have violated the law, returning the deposit will probably save you money. And now you know why we advised you not to take a security deposit!

The security deposit and last month's rent law does not apply to any rental for a vacation or recreational purpose of 100 days or less in duration. It also does not apply to commercial rentals.

20. Getting Reimbursed for Property Damage

Whether you have a security deposit or intend to sue tenants for damages, your claims must be carefully documented. The Greater Boston Real Estate Board/Rental Housing Association has forms for recording the condition of the premises at the outset of the tenancy. These forms are often treated too casually by both landlords and tenants. You should hold a careful inspection of the apartment by a management-level person, with careful notes taken, either before the apartment is turned over to the tenant or, if possible, with the tenant present.

You should also consider a regular inspection every year or so. This is not an inspection of the tenant's housekeeping or lifestyle. It is to discover repair problems while they are still small and to update your records of the apartment's condition.

A tenant is not responsible for ordinary wear and tear to the apartment. A court will not look kindly on claims for every nail in the wall or every scuff-mark on the linoleum. Only serious damage is worth the trouble of a lawsuit, even in small claims court. The best protection against tenant-caused damage is careful tenant screening.

If you intend to sue a former tenant for damages, consider whether your former tenant has the financial resources to pay a damages judgment. Suing a low-income tenant for damages can be a colossal waste of your time. Even if you win a judgment, you will very likely never collect it. However, if you participate in a rent-subsidy program, the program may reimburse you for damages, and then seek to recover the money from the tenant. Since this can affect a tenant's ability to continue in the program, it can form an important incentive for the tenant to care for the property.

If, despite our advice, you have taken a security deposit and you intend to take a deduction from a tenant's security deposit for damages, you need to be familiar with the state law on security deposits and follow all requirements to the letter. Document the damage with pictures and itemize them in detail. Get detailed bills and estimates for repairs. Make sure to sign the itemization "under penalties of perjury."

21. Entering the Unit

It may come as a surprise to you, but legally, even a rented home is a person's castle. Even though you are the landlord, you do not have an unlimited right of access. Once the unit is rented, it belongs to the tenant. You have no right to enter the tenant's home without permission. Unless the rental agreement specifies otherwise, you do not even have a right to a key.

Originally, in an agricultural society, the law expected the landlord to rent the property to the tenant and then leave the tenant alone. It gave the landlord no right of access, but also no responsibility for repairs. The modern urban tenancy, especially in a multi-unit building with many building-wide systems, has changed that law. You now have an obligation to make repairs, and you get a right of access for that purpose. But your right of access does not supersede the tenant's rights to privacy and to "quiet enjoyment" of the premises.

One of the most common landlord-tenant disputes involves access for making repairs. The State Sanitary Code requires the tenant to allow you "reasonable access" at "reasonable times" to repair code violations. What is "reasonable" is the subject of frequent disputes. You should negotiate access by appointment whenever possible. If the tenant will not allow you access to make needed repairs, either by being unreasonably difficult about making appointments or by not keeping them, you should document the situation carefully with witnesses, written communications, and logs.

You also should make every effort to keep appointments yourself. Unfortunately, this is not always easy when you have to rely on plumbers, carpenters, painters, and other workers who sometimes seem to live in a completely different time zone. Again, document everything in writing. And keep careful track of workers you hire. Sometimes they will not keep appointments and blame the tenant. See the section on repairs for more detailed advice on this point.

In a genuine emergency, you may enter the tenant's unit without penalty. But this is risky, so make sure it is a true emergency. A fire or a burst pipe is an emergency. The sudden availability of your brother-in-law-the-carpenter is not. Make sure to document the emergency carefully. Unless there is an emergency, entering a tenant's unit without permission may make you liable for three months' rent plus the tenant's attorney's fees.

Housing courts can often be helpful in mediating disputes over access. Your strategy at all times should be to comply carefully with the requirements of the law and to document your compliance with careful record-keeping. If necessary, with a particularly difficult tenant, a witness who can observe and later testify about the tenant's refusal of access, can be valuable.

You or your representative should be with repair personnel at all times in a tenant's apartment. Be careful to whom you give keys to tenants' apartments. Courts may hold you responsible for any damage, theft, or long-distance telephone calls attributable to unsupervised workers in the apartment. Doing this will also protect you from the occasional tradespeople who don't show up, then claim that the tenant refused access and bill you for the call.

Under Massachusetts General Laws, ch.186, 15B, you may include in a rental agreement only the following rights to access:

  • to inspect the premises;

  • to make repairs;

  • to show the premises to a prospective tenant, purchaser, mortgagee, or its agent.

You may also enter the premises in accordance with a court order or if the premises appear to have been abandoned by the tenant.

A tenant has not necessarily abandoned the apartment just because he or she hasn't been around for awhile, hasn't paid rent, or has moved some furniture out. A tenant who is moving out has the right to full possession of the apartment until the last day of the lease or rental period. If you get impatient and go into the apartment before the end of the tenancy and remove what you think the tenant has left behind, and the tenant intended to return for those things, you can later be charged with trespassing and larceny. You must be very careful before assuming that a tenant has abandoned the apartment. Try to get the tenant's moving plans in writing. If you are unsure of the tenant's plans, ask.

We once saw a case where the tenant came back from vacation and found someone else living in his apartment and his furniture stored in the cellar. He wasn't behind on the rent, but the landlord somehow decided that he had abandoned the apartment. The landlord was liable for damages (a minimum of three months' rent, and potentially much more) plus the tenant's attorney's fees. And the tenant had the right to recover possession of the apartment. If we hadn't settled the matter, that landlord would have faced another lawsuit from the new tenants, who didn't expect to be considered trespassers in an apartment they were renting in good faith!

22. Retaliation

When your tenant has complained to the Board of Health and forced you to make some expensive repairs, it's natural for you to be upset. You may want to raise the tenant's rent. Or take away the tenant's parking space or yard privileges. Or perhaps even get rid of the tenant for being so troublesome. It may be natural, but it's illegal.

By law, you cannot try to evict a tenant, raise the rent, or change the terms of the tenancy because the tenant has complained of conditions to you in writing or to any government agency or because the tenant has organized or joined a tenants' union or engaged in certain other protected activities.

If you try to raise the rent, evict the tenant, or make any change in any of the terms of the tenancy within six months after the tenant has done any of these things, it will be presumed to be an unlawful retaliation. That means that in any court proceeding, the burden will be upon you to prove that you are not retaliating against the tenant.

But what if you were going to raise the rent anyway, before the tenant did those things? To defeat a retaliation claim, you must convince the court, with "clear and convincing evidence," that you are acting out of non-retaliatory motives and would have taken the same action in the same way if the tenant hadn't done whatever they did. This takes more than simply your assertion of your motives. Clear and convincing evidence means complete records carefully kept.

But that can be risky, and the consequences of losing in court can be expensive. Sometimes, the best course may be to wait until at least six months after the tenant's actions that are protected by the retaliation law. Even then, retaliation may still be found. But during the first six months, you have the burden of proving that what you did wasn't retaliatory. After six months, the tenant will have the burden of proving retaliation.

If you are found to be retaliating against a tenant, you will not be able to evict the tenant and may have to pay damages of from one to three months' rent plus the tenant's attorney's fees.

You also cannot willfully deprive a tenant of heat, hot water, gas, electricity, lights, water, or refrigeration service. Nor can you lock a tenant out or remove the tenant from the apartment without going through the proper court procedure. If you try, the tenant can obtain a restraining order, file a criminal complaint against you, and sue you for money damages and attorneys fees.

23. Consumer Protection Law

Chapter 93A of the Massachusetts General Laws is commonly called the "Consumer Protection Act." Like the Federal Trade Commission Act on which it is based, and similar "baby FTC" laws in other states, it prohibits the use of any unfair and deceptive acts and practices in the conduct of any trade or business.

Renting housing is generally considered to be a trade or business, and the state Attorney General has issued regulations which define unfair and deceptive acts or practices in the rental housing field. Among the things that constitute an unfair practice is if you fail to disclose to a tenant or prospective tenant any fact the disclosure of which may have influenced the tenant not to enter into the transaction. Also listed as an unfair practice is any violation of any law meant to protect consumers and any act which is oppressive or otherwise unconscionable in any respect. A copy of the consumer protection regulations is available at the State Book Store, at the State House. It is also available on the Web.

If you receive a letter from your tenant which says that it is a demand letter under Chapter 93A, you should have a lawyer look at it as soon as possible. Failure to respond within 30 days can make you liable for three times the tenant's damages, plus the tenant's attorneys fees.

If you are the owner-occupant of a two-family or three-family house and own no other rental property, you are not considered to be engaged in a trade or business and are not subject to this act.

24. Types of Tenancies

There are two types of tenancies in Massachusetts. They are a tenancy for a fixed term and a tenancy at will.

Fixed Term Tenancy. A tenancy for a fixed term must be created by a written lease, signed by both the landlord and the tenant. A lease, in its simplest form, is a contract that you will rent the apartment to the tenant, and the tenant will rent it from you, for a fixed term at a fixed rent. The term is usually for one year, although any other term is possible. The lease binds you as well as the tenant, and you cannot raise the rent during the term of the lease unless the lease itself provides for it.

In order for a lease to be valid, it must be in writing and must indicate the date on which it ends. It should also state the amount of the rent and what the rent includes. The standard RHA lease forms contain a trap here for the unwary landlord. It provides a space for you to fill in the "term rent" and says that this "term rent" is payable in monthly installments, in an amount which you also must fill in. The "term rent" is the total rent which the tenant must pay over the initial term of the lease.

In the most common situation, a one-year lease, the "term rent" is simply twelve times the monthly rent. The problem arises when some landlords sign a lease for an unusual term. In one case we saw recently, the lease was for thirteen months, which means that the "term rent" should have been thirteen times the monthly rent. But the amount filled in as "term rent" was twelve times the monthly rent, and the tenant claimed that he was entitled to one month's free rent. If you are signing a lease for an unusual term, make sure that the "term rent" correctly reflects the monthly rent times the actual number of months in the rent term.

Self-extending Lease. Some leases are "self-extending." A self-extending lease is a one-year term lease which automatically extends itself from year to year unless one of the parties gives notice to the other by the deadline specified in the lease, to terminate the lease at the end of its current term.

If you use a self-extending lease, be careful to fill in the deadlines correctly in the blank spaces and to give notice by the proper deadline if you want to raise the rent. Otherwise, the lease will self-extend for another year at the same rent. A notice terminating a self-extending lease must actually be received by the tenant by the specified deadline.

Self-extending leases used to be very popular in the 1960s and 70s. They became much less popular during the 1980s. Their supposed advantage is that, if the tenant doesn't give you notice by the date specified, you can hold the tenant to the lease for another year. Since it is rare to collect rent from a tenant who has skipped out, and a tight rental market makes it very easy to replace a departed tenant, this advantage is minimal. In a cooler rental market, this advantage may be more meaningful, at least as leverage to keep a tenant from leaving mid-term. But since rental markets tend to rebound, the disadvantage of a self-extending lease may well outweigh the advantage.

The disadvantage of a self-extending lease is that unless you fill in the form correctly and give termination notice properly, the tenant can hold you to the lease for another year at the old rent. During the 1980s, many landlords wanted to keep their options open. Some envisioned condo conversions or simply a rapidly growing market. Some got stuck when they didn't properly terminate a self-extending lease. This made self-extending leases less popular than before. For the same reasons, written tenancies at will, rather than fixed-term or self-extending leases, became much more popular during the 1980s than ever before.

Escalator Clauses. Whether and how you can raise the rent during the term of a lease depends on what the lease says. Most leases in the Boston area run from September to August. The lease will continue in effect until it expires according to its terms. You cannot raise the rent before the current lease expires unless the lease itself contains a special provision which allows it. Such a special provision is called an "escalator" clause. There are two kinds of escalator clauses which are commonly found in residential leases in Massachusetts.

The most common kind of escalator clause is a tax escalator clause. A tax escalator clause assumes that you have set the initial rent with the current real estate taxes in mind. It provides that if the real estate taxes on the property increase in the future over and above the current amount, the tenant will pay some portion of the increase as additional rent. The RHA form, which is the one most commonly used in the Boston area, provides that the tenant must pay the amount when you demand it. If the sum is large, of course, you should try to make your demand in accordance with a good tenant's ability to pay.

If you want to use a tax escalator clause, you must be careful to fill in the clause properly in the lease form. The "base year" should be the most recent year for which you have received a tax bill. You must specify the exact percentage, in figures, of the tax increase that the tenant must pay. The percentage must represent the proportion that the tenant's unit bears to the whole property.

As a simple example, assume you have a three-floor building with three identical apartments. Each apartment is one third of the building. So, if the tenant in each unit has a tax escalator clause in the lease, it would provide that each tenant would pay one-third of the property's increase in taxes over the base year.

But what if the apartments aren't identical? Let's assume the same three-floor building, but this time it has four apartments: The first and second floors still have identical apartments which cover the entire floor. But now the third floor contains two apartments of equal size. In that building, a proper tax clause in the leases would require each of the tenants of the first and second floor apartments to pay one-third of the increase in taxes over the base year. The third floor units would each be required to pay one-sixth the tax increase.

In larger buildings with apartments of differing sizes, this can get much more complicated. In a tax escalator clause, the exact percentage of the taxes to be paid by the tenant must be filled in. Don't just fill in the word "proportionate." The tax clause is invalid if the exact percentage is not filled in.

The law requires the tax clauses to express an exact percentage which corresponds with that apartment's proportion of the whole building. You cannot require a tenant whose apartment is one-third of the building to pay one half the tax increase. You cannot make one tenant pay more because another tenant doesn't have a lease with a tax clause. If a tax escalator clause is not filled in and implemented correctly a court may find it to be invalid.

The RHA form, which is the one most commonly used in the Boston area, provides that the tenant must pay the amount when you demand it. But the tenant may not be able to afford to make the escalator payment in one lump sum when you demand it. To keep a good tenant, it may be to your advantage to accept a payment arrangement.

The tax clause must also provide that if you get a tax abatement, you will pass that abatement on to the tenant according to the same percentage. The current RHA lease forms comply with this requirement.

The other kind of escalator clause that has been commonly used in residential leases is the "rent control escalator." Although the RHA lease form still contains the rent control escalator clause, the abolition of rent control has made this clause obsolete.

The RHA form lease contains a space in the margin where the tenant is asked to initial the rent clauses signifying that he or she understands and accepts them. You should make sure that the tenant does this. If this is not done, the lease will be ambiguous as to whether both parties accepted the escalator clauses as part of the contract. The tenant could argue (and a court might agree) that the escalator clauses were not part of the contract.

This is a special case of a more general rule of construing documents. Whenever a document is ambiguous, the courts will resolve the ambiguity against the interests of the person who prepared the document. Since you prepare the lease, you must be careful to fill in all blanks correctly and cross out any language which does not apply. Any ambiguity created by your lack of care will be construed against your interests.

The law requires that you must give the tenant a copy of the lease, signed by you, within 30 days after the tenant signs it. The same goes for a written tenancy at will agreement. If you fail to return the lease within the time specified, the tenant may be considered a tenant at will. The law also provides a criminal fine of $300.00, though this is rarely enforced. Failure to return a signed copy of a lease may also constitute a violation of the Consumer Protection Act.

Tenancy at Will. A tenancy at will may be in writing, but is often an oral agreement. If you want to have tenancies at will, we recommend that you use a written agreement. See the section on written agreements for further information as to our reasons. The RHA written tenancy at will form is a good example of a tenancy at will agreement that will protect your rights.

With a tenancy at will, either party may terminate the tenancy with a notice in advance of one rental period or 30 days, whichever is longer. A notice to terminate a tenancy at will must be written in a certain way, or it will not be effective. It must specify the date on which the tenancy terminates, and it must state that date correctly. A termination notice is often called a 30-day notice, but it isn't just any 30 days. It would be clearer if we called it a "rent-period notice." The notice must terminate the tenancy on a rent day.

In other words, if the rent is payable on the first of the month, the notice must terminate the tenancy on the first. If the rent is payable on the 15th, the notice must terminate the tenancy on the 15th. One form which the courts have found acceptable reads, "Your tenancy in [Unit address] is hereby terminated as of the end of the rent period which begins next after you receive this notice."

To raise the rent for a tenant at will, you must give a proper notice terminating the tenancy. You may then offer to enter into a new tenancy at a new amount. The offer may be in the same notice as the termination. If the tenant agrees to pay the new rent, that will form a new contract at the new rent.

Landlords who don't know the legal requirements often try to raise a tenant's rent with a notice which is not legally sufficient. A notice in the form "As of 1 October 1999, your new rent will be $xxx" is not sufficient.

If you send a notice like that, the old tenancy continues in effect, and the tenant is legally entitled to continue paying the old rent. If you try to evict the tenant for non-payment of rent, and the tenant contests it in court, you will lose.

Now suppose the rent is due every month on the 15th, and you send a notice which says, "Your tenancy is hereby terminated as of the first of January. If you desire to remain a tenant, your new rent will be $1000." Remember, a notice terminating a tenancy at will must expire on a rent day. So, if the rent is due on the 15th of each month, you can only give the tenant a notice which terminates the tenancy on the 15th. To be valid, the tenant must receive the notice no later than the 15th of the previous month. Since the rent is not due on the first, a notice which claims to terminate the tenancy on the first does not terminate the tenancy at all.

Here is an example of a valid notice which you may send to terminate a tenancy at will and ask for a rent increase. Assume that the rent is due on the first of the month and the tenant actually received the following notice from the landlord on 30 November 2001:

I am terminating your tenancy as of the end of that month of your tenancy which begins next after your receipt of this notice. If you wish to remain in the apartment, I hereby offer you a new tenancy at a monthly rent of $1000 per month, under the same terms and conditions as before, starting 1 January 2002.

This is a valid notice to terminate the tenancy on 1 January 2002. But the tenant may not have to pay the new rent starting that month. This is because even if it isn't in writing, a tenancy at will is a contract. You cannot unilaterally dictate new terms to a contract.

A notice terminating a tenant at will must be received at least 30 days in advance in order to be effective. This means that tenants who pay rent by the week are entitled to at least 30 days notice of termination. Note: Since February does not have 30 days, a notice to terminate a tenancy at the end of February is not valid unless it is received several days before the end of January.

Raising the rent for a tenant at will is complicated, and many landlords don't do it right. See the section on rent increases for further information.

Rooming Houses. At one time rooming house tenants hardly ever had written rental agreements. Now they are becoming more common. If there is one, the parties have the rights stated in the agreement. If not, a tenant who has lived in the rooming house for three months or more has all the rights of a tenant at will. Although a notice of one rent period is necessary to terminate a tenancy at will, the law also requires a minimum notice period of 30 days. A notice on 17 December cannot terminate a tenancy on 31 December, even if the tenant pays rent every week.

A tenant who has lived in your rooming house for 30 days or more is entitled to at least 7 days notice to vacate. If the tenant has been there for less than 30 days, there is no specific notice requirement. The other rights of the parties are less clear. The tenant probably has the right to a court hearing before eviction, at least if s/he has been there for 30 days. The best thing is probably to assume that the tenant can successfully assert the right to a court hearing and go to court if the tenant will not leave voluntarily.

25. Breaking Leases

A lease is a contract which binds you to rent the apartment to the tenant and the tenant to rent the apartment from you for the term specified. But circumstances change, and when this happens, tenants try to break leases.

If there are code violations or other breaches on your part, the tenant may be legally entitled to break the lease. If that is the case, there is little you can do. If there are no such problems, the tenant is responsible for the rent for the balance of the lease term, but this responsibility is qualified by a number of considerations, both legal and practical.

First of all, you are not allowed to sit with an empty apartment for the rest of the lease term and look to the tenant to pay. You must make reasonable efforts to find a substitute tenant. The legal term for this is "mitigating damages." If you find a substitute tenant, you are entitled to sue the departed tenant for your losses. If, in a recessionary market, you couldn't get as much rent as the departed tenant was paying, you can sue the departed tenant for the difference for the balance of the lease. If the apartment was vacant for a month or two before a new tenant took over, you can seek the lost rent from the departed tenant. You can also sue for the cost of re-renting, such as a real estate broker's fee or the cost of advertising.

Often, a tenant who wants to break the lease will try to find a substitute tenant. You are entitled to screen tenants and determine to whom you will rent. But if you unreasonably turn down someone found by your departing tenant, a court may find that you have failed to mitigate damages.

In an inflationary rental market, you may want to try to re-rent the apartment for a higher rent than the departing tenant was paying. If you can get a higher rent, you are entitled to do so. But if you over-estimated the market and can't rent the apartment at the higher asking rent, the departed tenant may not have to pay the lost rent for the months the apartment was vacant because you "got greedy." Should you succeed in re-renting the apartment at a higher rent, the additional rent you receive, for the remaining months of the old lease, will offset any losses that you try to collect from the departed tenant.

You are not entitled to collect double rent for the apartment. If, say, the departed tenant has paid rent through the end of March, and you re-rent the apartment for the first of March, you must refund the March rent to the departed tenant.

A practical consideration is that it is almost never worth the effort to sue a tenant who has moved out. This is especially so if the tenant has moved to another state, but even if the tenant has remained nearby, unless you know of assets that can be used to satisfy a judgment, the time and effort of trying to collect money from a departed tenant is usually wasted.

26. Rent Increases

Most landlords and tenants think that a landlord can raise the rent any time by decree. But a tenancy is a contract. Changing the rent requires the agreement of both parties. How that happens depends on whether or not there is a lease. Many notices sent by landlords attempting to raise the rent are invalid. For further information, see the section on Types of Tenancies.

If, after having reviewed expenses and market conditions, you decide on a rent increase, you should implement it with care. Pay attention both to the legal requirements and to good tenant relations. If you have one of the few apartments still covered by some form of rent regulation, be sure to comply with whatever rules are in effect.

Notice requirements depend on the type of tenancy, and you must give the notice required by the type of tenancy you have with the tenant. If you have a term lease, you will not be able to raise the rent until the lease expires, except to invoke a valid escalator clause. In order to invoke an escalator clause, you must give notice to the tenant in the time and manner required by the lease clause.

If you have a fixed-term lease which is expiring, you are not required to give the tenant any notice. But since most leases are renewed annually, and most tenants expect that to be the case, it is a good idea to give at least a month's advance notice to the tenant if you intend to raise the rent or if you otherwise don't want to renew the lease. To do otherwise invites a fight with a tenant which you might have avoided.

While you don't legally have to give a tenant a notice of a fixed-term lease expiring, the tenant doesn't have to give you notice either. If you ignore the situation until a day or two before the lease is due to expire -- or even after the expiration date -- you may find that the tenant is planning to move out at the end of the lease and you didn't know it. Or, as we've discussed elsewhere, you may think the tenant has gone, clean up the apartment, and throw out items that the tenant intended to return for. Discussing an expiring lease in advance with the tenant may not be the law, but it is a good idea.

If you are using a self-extending lease, be sure to give notice in accordance with the lease provisions. Otherwise, the lease will extend itself for another year at the old rent.

When the lease expires, the tenant is technically a "tenant at sufferance." That is the legal term for a tenant who holds over after the tenancy has ended. If the tenant pays rent after the lease has expired, and you accept the rent, he or she will then be a tenant at will, at the rent that you accepted. This means if you intend to raise the rent when a lease expires, and the tenant pays the old amount, you must be careful about what you do with the rent. We will discuss how to do this properly in a moment.

Before giving any required legal notice, you may wish to communicate less formally with the tenant to discuss the need for an increase. A tenant who first learns of a rent increase from a legal notice is more likely to resent the increase and be a problem tenant.

Since some tenants may respond to a impending rent increase by calling for a code inspection, you should send the formal written notice as quickly as possible after the friendly, informal notice. If you meet with the tenant personally, you can hand the tenant the written notice in a friendly manner. By giving the written notice as quickly as possible, you can defeat a later claim by a tenant that the rent increase was a retaliation for the tenant's reporting code violations, when the tenant actually reported the violations after learning orally of the increase.

Having given the required legal notice, beware of accepting a lesser amount. Courts have held that accepting rent, without reserving rights in the correct way, may constitute a waiver of the increase. See below on how to reserve your rights correctly.

Most tenants and landlords think that a landlord can raise the rent any time by decree. But a tenancy is legally a contract, and changing the rent requires the agreement of both parties. How that happens depends on whether or not there is a lease. Many notices from landlords attempting to raise the rent are invalid.

To raise the rent for a tenant at will, you must give a proper notice terminating the tenancy. You may then offer to enter into a new tenancy at a new amount. The offer may be in the same notice as the termination. If the tenant agrees to pay the new rent, that will form a new contract at the new rent. For further information about this, see the section "Types of Tenancies: Tenancies at Will."

A tenant who receives a notice of a rent increase from a landlord has several options:

First, if it is a legally invalid notice, the tenant can ignore it.

Or, the tenant may try to negotiate with you. As we've said, rent is established by contract, not decree. The extent to which you want to negotiate with your tenant is for you to decide. Often a tenant will be content with a few minor improvements in the apartment. In other cases, there may be serious sanitary code violations, and your attempt to raise the rent may trigger a housing code complaint and a bitter battle.

Perhaps the tenant simply cannot afford to pay the increase. Tenants in that position may use housing code complaints to buy time while they look for a place to move. In other cases, the code complaint may reflect a tenant's willingness to pay a higher rent if certain things are fixed that they were willing to tolerate when the rent was lower.

You must be careful about bringing an eviction action against a tenant who has made a housing code complaint. You could be liable for the code violations and also for retaliation and for the tenant's attorney's fees.

Still another option for the tenant is to stay put and keep paying the old rent. The tenant is not legally obligated to pay the new rent unless he or she agreed to pay it. So you cannot evict the tenant for non-payment of rent. But you can evict the tenant for not moving out when the lease or tenancy at will terminated. In order to do that, you must be very careful about how you accept rent from the tenant.

Since a tenancy at will is often not in writing, the terms of the agreement can be implied from the conduct of the parties. It is quite possible, after a lease is expired, for a new tenancy at will to be created if the parties act as if that has happened. It is also possible for you to waive the termination of a tenancy at will and create a new tenancy at the old rent, if you and the tenant act as if that is the case. So, after a lease expires or you terminate a tenancy at will, you cannot act as if a tenancy still exists, or the courts may find that it does.

One of the things that leads courts to find that you have established a new tenancy at the old rent is if you accept the old rent without objection. If the tenant continues to pay the old rent, the correct way to accept it is as follows:

  • Hold the check until the end of the month for which it is paid. Accepting rent in advance is an indication of a tenancy. At the end of the month, you may accept the money, not as rent but as payment for "use and occupancy" of the premises. If the occupant has moved out during the month, you may only accept money for the period that he or she actually occupied the premises. You must return the balance.

  • When you receive the check, send the tenant a letter immediately stating that you will hold it until the end of the month and then accept it for use and occupancy of the premises. State also that if the tenant vacates during the month, you will refund the balance. Some landlords make up a form letter and do this every month until either the tenant moves out or they agree to enter into a new tenancy.

  • When you negotiate the check, write on the back, above your endorsement, "Accepted on account for use and occupancy, without waiving termination notice and without creating a new tenancy."

  • If you are worried about whether the check will be good by the end of the month, you may take it to the bank on which it is drawn and have it certified. That is not a waiver of the termination notice.

  • If the tenant has paid you in cash, put the cash aside until the end of the month and send the tenant the letter described above. Don't spend the money until the end of the month.

Some landlords, and even some lawyers, think that it is sufficient to write your reservation of rights on the back of the tenant's rent check. It is not. The tenant may not see the check for at least a month., and some banks nowadays don't even return cancelled checks to their customers. If you want to accept rent while reserving your rights under a notice to quit, you cannot rely on just putting the notice on the back of the check.

When you go to court to evict a tenant who has refused to pay a rent increase but has continued to pay the old rent, it is not an eviction for non-payment. You usually cannot get a judgment against the tenant for the increased rent. When an eviction is based on a termination of tenancy which is not for non-payment of rent and is not otherwise the tenant's fault, the court can give the tenant time to find another apartment. See the section on Evictions for more information.

27. Condominium Units

There are special problems in renting a condominium unit. As a landlord, the law makes you responsible for providing heat, hot water, and other services to the tenant. But in a condominium, these services may be controlled by the unit owners association. The association has to deal with you as the unit owner, but they also must deal with the tenant as the person who is actually on the premises.

Some condo associations, in times of high fuel costs, have been known to keep the heat below the legal temperature limits in order to save money. As an owner, you may favor such measures to reduce your condo fees. But as a landlord, you are still responsible to provide your tenant sufficient heat as defined by law, and your tenant can withhold rent if the heat is insufficient.

If the local code enforcement agency issues an order to you to correct conditions which are the responsibility of the association, you should notify the association as soon as possible. You should also notify the code enforcement agency and ask them to cite the association. Although they should do so, some local code enforcement agencies may not do so without pressure.

Although the tenant is entitled to withhold rent if services are lacking, the courts have held that you have no right, as a unit owner, to withhold condo fees from the association. This is because the association is not a private business, and they cannot maintain the building without the contributions of all unit owners. Your remedy is either to sue the association or to seek the election of different trustees.

A pair of statutes enacted in 1991 and 1992 provide that if you don't pay your condo fees, the condo association can legally require your tenant to pay rent directly to the association, to be applied toward your condo fees. The law prohibits you from taking any reprisal against the tenant for doing so. The law also gives the association a lien on your unit, by which your unit can be foreclosed on and sold to collect condo fees.

Most condominiums have rules which apply to all residents, including tenants. Make sure to give the tenant a copy of such rules and require, in the rental agreement, that the tenant abide by them.

28. Condominium Conversions

The rights of tenants in a building undergoing a conversion to condominiums or cooperatives are governed by special legislation called Chapter 527 of the Acts of 1983. It applies to nearly all residential condominium and cooperative conversions. It does not apply to buildings containing fewer than four residential units unless the building is part of a housing development with two or more adjacent, adjoining, or contiguous buildings under common ownership, used in whole or in part for residential purposes, and containing four or more units.

Notice. When you are going to convert a property, you must give to each tenant a notice of your intent to convert. The notice must state in clear and conspicuous language:

  • that you have filed or intend to file a master deed at a registry of deeds whose location is stated in the notice or have filed or intend to file cooperative articles of organization with the State Secretary's office;

  • that any tenant residing there on the date the notice of intent is given shall have a period of time stated in the notice, counted from the date the tenant receives the notice, before the tenant will have to vacate;

  • that any tenant residing there on the date the notice is given shall have a period of time stated in the notice to purchase the unit on terms and conditions which are substantially the same as or more favorable than those which you extend to the public generally for 90 days following the expiration of the tenant's right to purchase;

  • a statement of the other rights and obligations described below.

If you intend to sell or offer for sale units in only part of the development within the first year after you have formed the intent to convert, you must give to each tenant in any unit which you don't intend to sell or offer for sale within the year, a notice informing the tenant of the date when you reasonably expect to offer or sell the unit. Thereafter, you must give the notice of intent to convert as above.

Eviction Restrictions. You cannot bring any action seeking a "condominium or cooperative eviction" during the "notice period," which is one year after the tenant receives the notice. If the housing unit is occupied in whole or in part by a handicapped tenant or is occupied by a tenant who is 62 years of age or older or a low or moderate income tenant, the notice period is two years. The tenant has the burden of proving his or her entitlement to the extended notice period. If there is a rental agreement in force, the notice period does not expire before the rental agreement expires under its own terms.

A "condominium or cooperative eviction" is an eviction by you or by a purchaser or prospective purchaser in order to facilitate the sale of the unit as a condominium or cooperative unit. An eviction is presumed to be a "condominium or cooperative eviction" if you have formed the intent to convert. The law contains extensive provisions for determining when you have "formed the intent to covert." An eviction for non-payment of rent or other violation of a rental agreement is not a "condominium or cooperative eviction," and you can still evict a tenant for those reasons.

A low or moderate income tenant is a person or group of persons residing in the same unit where the total income of all residents for the twelve months immediately preceding the date of the notice is less than 80% of the median income for the area as promulgated by the U. S. Department of Housing and Urban Development.

Rent Increase Limits. During the notice period, you cannot increase the rent more than the percentage increase of the Cost of Living Index, and in any event no more than 10% per year, except that you may collect under a valid tax escalator clause. You must extend the rental agreement until the end of the notice period or the 90 day right to purchase period, whichever is later. Except for a permitted rent increase, you cannot change the terms of the rental agreement during the notice period.

Right to Purchase. With the notice of intent to convert, you must give the tenant the right to purchase the unit on terms and conditions which are substantially the same as or more favorable than those which you will extend to the public generally for the 90 days after the expiration of the tenant's right to purchase. The tenant may exercise the right to purchase by executing a purchase and sale agreement within 90 days after the date the tenant has received a copy of the purchase and sale agreement properly executed by you.

Relocation Benefits. You must pay to any tenant who does not purchase the unit or another unit in the same development the actual documented cost of moving, up to $750.00 per housing unit. If the unit is occupied by a tenant who is entitled to an extended notice period, the maximum benefit is $1000.00 per housing unit. The payment is due within ten days after the tenant vacates the unit. To be eligible for these benefits, the tenant must have paid all rent and must voluntarily vacate the unit on or before the last day of the notice period.

Relocation Assistance. You must assist elderly, handicapped, and low or moderate income tenants in finding comparable rental housing within the same city or town which rents for no more than the rent which the tenant was paying when s/he received the notice of intent to convert. If you fail to find such substitute housing for the tenant, the notice period is extended until you find such comparable rental housing, or two additional years, whichever comes first.

Subsequent Tenants. If the tenant who is entitled to notice of intent to convert vacates before the first sale and transfer of the unit, and you seek to re-rent the unit, you must give to each prospective tenant a written notice, prior to the inception of the tenancy, informing them that the unit is a condominium unit and, if applicable, that it is currently being offered for sale or will be offered for sale within ninety days of the inception of the tenancy.

Violations. Violations of the act or any local ordinance or bylaw adopted under its authority are punishable by a fine of not less than $1000.00 or by imprisonment of not less than 60 days. Each unit converted in violation of the act constitutes a separate offense. A violation does not affect the validity of a conveyance to a purchaser for value who has no knowledge of the violation. The District, Superior, and Housing Courts may issue orders to restrain violations.

Local Legislation. A city or town may adopt provisions different from these by a 2/3 vote of the local legislative body and, in a city, the approval of the mayor. If you are contemplating a conversion, you should check with the city or town clerk to see if there is any local legislation governing condo conversions.

29. Evictions

The first thing you need to know about evictions is that you cannot lock a tenant out of the apartment. If you try, you may be subject to criminal prosecution, a judicial restraining order, and a suit for money damages. Only a judge can order a tenant to move. Until then, the tenant has the right to remain in the apartment. If the eviction is not legally the tenant's fault, the court can give the tenant time to find another place and move.

While you cannot retaliate against a tenant (see the section on Retaliation), you may otherwise evict a tenant at will or a tenant whose lease has expired for any reason whatever or for no reason at all.

Before you can go to court, you usually have to send a written Notice to Quit. This is the official way of terminating a tenancy. Depending on the type of notice, it may order the tenant to "quit and deliver up" the apartment in seven, fourteen, or thirty days or some other period. The tenant does not really have to move in the time stated in the notice, but you must wait until that time has run out before you can start court proceedings.

Non-Payment of Rent. If the eviction is for non-payment, the notice will tell the tenant to vacate in 14 days. For a tenant at will, the notice should also contain the required statutory language to the effect that if the tenant hasn't received a notice to quit for nonpayment of rent within the past twelve months, s/he may avoid eviction by paying all rent due within ten days. If the notice does not say that, the tenant may reinstate the tenancy by paying all rent due at any time up until the day the answer is due in a court action for eviction. If there is a lease, the tenant always has the right to reinstate the tenancy by paying all rent due, with interest and costs of suit, at any time up until the answer is due in a court action for eviction. If you refuses the tenant's tender of rent, the tenant may still win if they tried to pay it.

Some landlords routinely include on all 14-day notices the notice meant for tenants at will. But this could mislead lease tenants into thinking that they can no longer reinstate the tenancy after 10 days. For that reason, sending such a notice could be held to be a deceptive practice (See the section on Consumer Protection Law.). It is best to keep track of which of your tenants are under lease and which are tenants at will, so that you can send each tenant the proper notice.

Other Kinds of Eviction. If the eviction is for some reason other than non-payment of rent, a tenant at will is entitled to a Notice to Quit at least one full rental payment period in advance, or 30 days, whichever is greater. If you sent a proper termination notice in order to raise the rent, that notice may be sufficient if the tenant hasn't paid the new rent and you have reserved your rights as described in the section on Rent Increases.

If there was a lease which has just expired, the tenancy is already terminated, and no other notice is legally necessary. But if you have accepted rent from the tenant since the lease expired, without reserving your rights, you have probably created a new tenancy at will. If you are evicting a tenant for violating some provision in the lease, the lease will state how much notice you must give. Most leases in the Boston area provide for a seven-day notice for violation of the lease.

Court Action. In Massachusetts, a legal action to evict is called a "summary process" action. After the time specified in the Notice to Quit has expired, you or your lawyer will serve on the tenant a Summary Process Summons from the court. It will state the date of the trial and the date by which the tenant may serve a written answer. If the tenant files "discovery," the trial will automatically be postponed for two weeks.

Discovery is a legal request for information about your case. It can take the form of written questions ("interrogatories"), requests for you to produce documents, or requests for you to admit certain facts. You must respond to the tenant's discovery within ten days of the day you receive it. You must be especially careful to respond promptly to Requests for Admissions. Any facts which you do not deny within the ten days, under penalties of perjury, may be deemed admitted for purposes of this lawsuit. Court rules also allow you to send discovery to the tenant.

If the eviction action is brought for non-payment of rent or for any reason which is not the tenant's fault, the tenant may bring counterclaims against you seeking damages for any claims which arise out of the property or rental. It is common for tenants to bring claims for code violations, quiet enjoyment, retaliation, consumer protection violations, and the like. Before bringing an eviction action, it is a good idea to evaluate realistically whether the tenant will have any legitimate counterclaims. If so, making a deal with the tenant may be the most economical way to resolve the situation.

Jury trials are available in Housing Court, in District Courts in Middlesex, Norfolk, Essex, and Berkshire Counties, and in Superior Court (Pending legislation may eventually extend the availability of jury trials to District Courts in additional counties.). If the action is brought in a court where jury trials are available, your tenant may claim a jury trial no later than the date the answer is due. Otherwise, the trial will be before a judge sitting without a jury.

If the action is brought in a District Court where a jury trial is not available, after the case has been tried before a judge in the District Court, your tenant will be able to appeal the case to the Superior Court for a new trial before a jury.

At trial, you must prove your case with hard evidence. This is done with documents, records, and witnesses. That's why we keep talking about keeping a paper trail. But documents can only go so far. Our system of justice requires the testimony of live witnesses. A written statement from a witness is not admissible in court -- not even if it's notarized. The other side must have the opportunity to cross-examine the witness, and the court must be able to observe the witness in order to assess the witness's credibility. This cannot be done with a written statement.

After trial, the judge will usually take the matter under advisement. That means that you or your attorney will receive the decision in the mail. This can take anywhere from a few days to many months, depending on the complexity of the case. If the eviction is for non-payment of rent or for some other reason which is the tenant's fault (violation of lease provisions, unsanitary conditions, noise, etc.), a physical eviction can take place as soon as twelve days after the Court makes its decision.

Unless the tenant lives in a rooming house and has lived there for less than three months, or the eviction is for non-payment of rent or for some other reason which is the tenant's fault, the court can give the tenant time to move. If the tenant has not agreed to pay a rent increase, but has continued to pay rent at the old rate, the eviction is not for non-payment. And the fact that the tenant has not agreed to pay a rent increase does not make the eviction the tenant's fault.

The court generally can give a tenant up to six months to find another apartment. If the tenant is 60 years of age or older or is handicapped, the court can give up to twelve months. This is in the discretion of the judge. Most judges prefer to give a couple of months at a time, so that the tenant won't wait until the last month to look for a new place. If the tenant can't move that fast, s/he can go back for an extension, so long as the six months (or twelve months) hasn't been used up yet.

Settlement. Negotiating with your tenant can save you the expense and stress of a trial and a forcible eviction. In a tight housing market, a tenant may genuinely need several months to find another apartment, and in reality, the court is usually not going to force the tenant to leave more quickly. For low-income tenants, the cost of moving can be as great an obstacle as finding an apartment. Since you will have to pay more for a forcible eviction, consider offering to pay for the tenant's moving costs. Also, if the tenant has made counterclaims, consider the risk of a judgment against you and whether it may be cheaper to offer other financial concessions. Since a judgment for unpaid rent can almost never be collected, it costs you little to agree to forgive unpaid rent, but it may make a tenant more cooperative on some other point. Make sure that any settlement agreement is in writing and filed with the court.

The Execution. After you have received a judgment for possession and any stays allowed the tenant have expired, the court issues a document called an "execution." You give the execution to a constable or deputy sheriff, who comes with a mover to move the tenant out. The constable or deputy sheriff must give forty-eight hours notice in advance of the day they will come to move the tenant out. Some courts say that the forty-eight hours cannot be Friday to Monday, but must be over two business days. The actual moveout cannot take place between 5 PM and 9 AM or on Saturday, Sunday, or a legal holiday. Sometimes, the tenant will go to court during that time to try to get more time.

When the move finally does take place, the tenant's possessions will be placed in storage and will be released when the tenant pays the storage company its fees. After six months, the storage company may sell the possessions to pay for the storage fees. The constable or deputy sheriff will probably ask for $1000 or more in advance for a physical move-out, depending on the size of the apartment.

If the tenant brings the rent up-to-date by paying you the amount of the money judgment in full, plus any additional payments for use and occupancy that has accrued since the judgment, the tenant again becomes a lawful tenant. In that case, you cannot use the execution for possession and must return it to the court. If the tenant brings the rent current before the execution issues, you must notify the court, and no execution will issue.

In other words, you cannot continue to evict the tenant if you accept full payment of the rent. If you want to evict the tenant, you should refuse to accept full payment of the back rent. If you refuse to accept full payment, you may still try to enforce the judgment through collection process. In practice, however, it is rare for any landlord to collect unpaid rent from a tenant who has moved out.

30. Housing Courts

In the early 1970s, the state began to recognize that landlord-tenant law was a specialized area which required a specialized court. The Boston Housing Court was established in 1972, followed the next year by the Hampden County Housing Court. Other Housing Courts have been created since then for other parts of the state, and the Hampden County Housing Court has been expanded to cover all of Western Massachusetts. But as of yet, not all parts of the state are covered by a Housing Court.

The Boston Housing Court covers the city of Boston. The Northeast Housing Court covers all of Essex County, the city of Lowell, and the towns of Billerica, Chelmsford, Dracut, Dunstable, Groton, Pepperell, Shirley, Tewksbury, Tyngsborough, and Westford in Middlesex County. The Southeast Housing Court covers all of Bristol and Plymouth Counties. The Worcester County Housing Court covers all of Worcester County, the town of Bellingham in Norfolk County and the towns of Ashby and Townsend in Middlesex County. The Western Massachusetts Housing Court covers all of Hampden, Hampshire, Franklin, and Berkshire Counties. Anywhere else in Massachusetts, the case goes to District or Superior Court.

Note that Cambridge, Somerville, and Brookline are not covered by a Housing Court. Note also that there are some border areas, especially near Commonwealth Avenue in Brighton which have Brookline postal addresses and phone numbers but are actually in Boston and are covered by the Boston Housing Court.

If your property is within the jurisdiction of a Housing Court and you bring an action for eviction in any other court, your tenant can transfer the action to Housing Court by filing a simple form which is available from the Housing Court. This results in further delay. If a Housing Court has jurisdiction over your case, it is generally to your advantage to bring the action in Housing Court to start with.

31. Forms

You can obtain standard form leases in many stationery stores, but these leases are often not well-drafted for use in Massachusetts. The Greater Boston Real Estate Board / Rental Housing Association has far better lease and tenancy-at-will forms, which have been drafted to comply with current Massachusetts landlord-tenant law. They also have rental application forms and forms for compliance with the security deposit and last months' rent deposit laws. Their forms can be obtained online at www.formsforrealestate.com . Their address is:

15 Beacon Street, First Floor
Boston, MA 02108
617.423.8700

This summary is provided by the law office of A. Joseph Ross, J.D. It is based on Massachusetts law at the time it was written and is intended to alert clients to issues. It is not exhaustive and is not a substitute for specific legal advice. Copyright 1994 - 2002 by A. Joseph Ross. Permission to reproduce this summary is freely granted, provided that it is reproduced in its entirety, without any change, addition, or deletion.

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How to be a tenant

.

HOW TO BE A TENANT IN MASSACHUSETTS AND AVOID GETTING RIPPED OFF

by A. Joseph Ross, J.D.
Revised, January 2002

CONTENTS


Introduction

There are many perils for a tenant in a tight housing market. Without rent control, and with cutbacks in local code-enforcement budgets, a landlord often has little incentive to provide decent value for the high rents being charged. Laws give tenants many rights, but only by being an aware consumer can you have the benefits of those rights.

Most of us heard at an early age that ignorance of the law is no excuse for violating it. But all too often, a tenant winds up in the lawyer's office only after getting in trouble. When that happens, you may have already lost important rights, important evidence may have become unavailable, and all we can do is try to cut your losses. Please review these materials and consult with us if you have any questions. The best time to learn about these things is before you have a problem.

This booklet is based on Massachusetts law. In many instances, the laws are similar in other states, but there are no guarantees. Many situations are very complicated. This guide does not constitute legal advice and is no substitute for individual legal advice by a competent attorney who is familiar with all the details of your situation.

AJR

1. Keep a Paper Trail

If you learn nothing else from this guide, learn to keep good written records. Roughly six thousand years after the invention of writing, in a society with almost universal literacy, many people are inexplicably reluctant to keep written records of even the simplest things. It is important to document the landlord-tenant relationship, and, indeed, all consumer transactions.

Get Everything in writing. Don't believe spoken promises, especially when you are being shown an apartment. An oral promise isn't worth the paper it's not written on! Get all agreements between you and your landlord in writing. If you cannot do this, have a witness with you when talking to the landlord. Follow up with a letter "confirming our conversation of (date), ..." But beware of a landlord or real estate agent who won't put a promise in writing. It likely means they don't intend to keep it.

Get the names of the people you talk to. When you talk to anyone at any business or government agency, get the name of the person you talk to. "Somebody in the office told me..." has little credibility. If anyone won't give you their name, ask for someone who will.

Keep records. Get signed and correctly dated receipts for any money that you give to the landlord and make sure the receipt states the purpose for which payment was made. Save cancelled checks and copies of money orders. Pay attention to the distinction between a security deposit and a last month's rent deposit and make sure that any receipt or check for these deposits states the purpose correctly. If you have a dispute over rent, the winner may well be the person with the better rent records. Save all receipts and letters from your landlord and make copies of any letters that you send him or her. Use certified mail, return receipt requested.

Often it is important to communicate with landlords in writing. Even if you communicate orally, it is a good idea to send a letter confirming the conversation in writing. Landlord-tenant disputes often turn on different interpretations of the same conversations. When you write a letter, be sure to spell everything out in detail. Your letter to your landlord isn't just for the landlord. It's also for your own records, to refresh your memory years later, and, if necessary, to show a court. Date each letter and keep a copy. If you deliver letters personally by sliding them under the landlord's door, note the date and time you did so on the back of your copy. Save the originals of all correspondence from the landlord. If you correspond by fax, be sure to print out and save a transmission record for every fax that you send. We have seen some judges refuse to admit a fax communication into evidence without a transmission record.

Keep hard copies of all correspondence. If you fax by computer, print out and save a hard copy of every fax with the transmission record. If you use e-mail, print out and save every e-mail to and from the landlord. Be sure that the header on the printout contains the basic information of to, from, subject, and date. We've seen some e-mail software which omits this information on printouts. Write any missing information on the printout as soon as you print it out.

Keep your records in an organized file and don't alter documents. We often get documents from clients on which they have written their own notes, hi-lightings, random phone numbers, or doodles. Courts want to see clean documents, preferably originals. If you must mark up a document, make a photocopy and make your notes on that. Don't mark up the originals. The original of the letter from your landlord is not a good place to write your notes. If you take pictures, don't write descriptions directly on the pictures. Keep them separate. Your own notes on a document may make the document inadmissible in court.

It is important to keep an inventory of the contents of your apartment, especially of valuable items such as a computer or a home entertainment center. Keep records of when and where you acquired each major item and how much it cost. Pictures of the items are also helpful. Keep these records, or a copy, in some safe place off the premises. These records can be valuable in case of a fire, theft, or other disaster, in making an insurance claim. They can also be helpful in the rare case where the landlord moves your property out of the apartment without warning.

2. Read your Rental Agreement

A standard lease or tenancy-at-will agreement has no special status; it is merely a form which has been adopted by the landlord for his or her own use. The most commonly used forms in the Boston area are published by the Rental Housing Association of the Greater Boston Real Estate Board, a landlord organization. They are written to the landlord's advantage. Read the agreement carefully before signing it. Like all contracts, it must be taken seriously. Make sure that it protects you as well as the landlord. Ask questions about any wording which is unclear. Write in as part of the lease any additional clauses or clarifications which you desire. You and the landlord should both initial each change.

Make sure that the rental agreement reflects reality. For example, the RHA forms provide that only the persons named in the agreement can occupy the apartment. Make sure that everyone, including children, who os going to live in the apartment is listed. If not, make sure that the agreement allows you to bring in additional persons.

Check whether the agreement permits subletting or pets. Don't rely on an oral promise that your dog or cat is OK. Remember what we said about oral promises. If you are going to have a washing machine, air conditioner, or waterbed, make sure that any standard lease clause prohibiting those items is crossed out. Make sure that any changes are made on all copies of the lease.

Some brokers are all too willing to tell you that a clause in the written lease doesn't really matter. The landlord doesn't really care if you have pets, or the no-smoking clause is just there for insurance purposes, etc. While some lease clauses may be invalid for legal reasons, you should generally assume that provisions in a written lease mean exactly what they say.

Make sure you know what is included in the rent. The agreement should accurately reflect whether heat, hot water, electricity, and gas are included in the rent or are to be paid for separately. Additional charges are sometimes imposed for parking or recreational facilities. If the landlord is providing parking, make sure the agreement says so and that any standard clause to the contrary is altered accordingly.

Finally, make sure all the blanks have been filled in correctly.

The written agreement usually limits your rights in important ways. Leases and tenancy-at-will agreements often restrict whether you can have an air conditioner or washing machine or other appliances. You can be evicted for not complying with these provisions.

Without express provisions in writing, you have virtual carte blanche ownership of the apartment during the tenancy. Unless the contract says otherwise, you have the right to bring in new occupants without the landlord's approval. You also have the right to have pets unless there is a written agreement to the contrary. It surprises many people, but there is no law entitling the landlord to a key to the apartment without a provision to that effect in a rental agreement.

3. Utilities

The State Sanitary Code provides that you can only be required to pay for utilities which are separately metered, through meters which serve only your unit. You cannot be made to pay for utilities for any other part of the building. In some small buildings, it is common for basement lights, outlets, or laundry facilities to be metered to the unit once occupied by the owner and now occupied by a tenant. If you believe that you are paying for electricity, gas, or heat for any part of the building outside your own apartment, you should call the local code enforcement agency for an inspection.

There is one exception. In a building of three or fewer units, a light fixture in a common hallway may be metered to a unit on the same floor provided that the rental agreement explicitly states that you are responsible for paying for that light and the owner notifies the occupants of all other units. These requirements are strict, and the landlord must observe them to the letter.

An agreement for you to pay for fuel for heat and hot water must be in writing. If it is not, you may be able to require the landlord to pay for your fuel bills. However, recent Appeals Court decisions suggests that if you pay for fuel for a long time without objecting, you may lose the right to object or may be entitled only to $25 damages, plus attorneys fees.

4. Housing Discrimination

Under state and federal law, a landlord cannot discriminate against you based on race, religion, color, national origin, sex, sexual orientation, age, ancestry, marital status, or because you are a veteran or a member of the armed forces, blind, hearing impaired, otherwise handicapped, have children, or because of your source of income.

Discrimination includes refusing to rent, setting different rental terms, providing different services or facilities, stating falsely that an apartment is unavailable, and advertizing or making any statement which indicates a preference based on race, religion, color, etc.

The "source of income" rule sometimes causes confusion. A landlord cannot refuse to rent to you because you receive any form of public assistance. But they may refuse to rent to you because, regardless of source, your income is not enough to be able to afford the rent. The landlord must to apply the same standard of affordability to everyone, regardless of the source of their income.

Under state law, a landlord may refuse to rent to a tenant with children in an owner-occupied two-family dwelling or in a dwelling containing three or fewer apartments if one apartment is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. For this purpose, an elderly person is someone age 65 or over. An infirm person is one who is disabled or suffering from a chronic illness.

A landlord may also refuse to rent to a tenant with children in a temporary rental of a single unit for a period of one year or less if the landlord is the owner or tenant of the unit and usually occupies it as their principal residence.

Although a landlord cannot refuse to rent to you because of your sexual orientation, the law explicitly allows a landlord to refuse to rent to anyone whose sexual orientation involves minor children as the sex object.

5. Disabled Tenants

Both state and federal law prohibit discrimination against tenants with disabilities. This is a difficult area because it is not sufficient just to treat all tenants or rental applicants equally. The law also requires a landlord to treat some people differently by making "reasonable accommodations" to a tenant who has a physical or mental impairment which substantially limits one or more major life activities. Some examples are hearing, mobility and visual impairments ,alcoholism, mental illness, mental retardation, or AIDS.

The really hard question is what is a "reasonable" accommodation. The answer depends entirely on the situation. If you need a wheelchair, your landlord must install a wheelchair ramp because this can be done easily and inexpensively. An elevator, on the other hand, may not be reasonable. A landlord who has a "no pets" policy must make an exception for a guide dog. If a landlord must make changes to the physical facilities, they can condition any changes in the physical facilities on your agreeing to restore the property to its original condition when you move out, provided that the requirement is "reasonable."

"Reasonable accommodation" does not mean that a person with a disability is excused from complying with the basic obligations of a tenancy. But it does mean that you can have help or can comply in a manner different from other tenants. The law does not require a landlord to rent to you if you directly threaten the health or safety of others or if you are currently using illegal drugs.

6. Lead Paint

If a child under age 6 resides or will reside in your unit, the landlord must delead the unit. A landlord cannot refuse to rent to you because you have children and the unit contains lead paint (See the section on Housing Discrimination.). If you must vacate the unit while deleading is taking place, the landlord may also be required to pay for your temporary lodging during deleading. Because of the cost burden to the landlord of deleading, a court can order rent that you withhold because of lead paint in the premises to be applied toward the expense of deleading.

If no one has suffered lead poisoning yet, your landlord can delay complete deleading by developing an emergency lead management plan and obtaining a Letter of Interim Control from a licensed inspector. The inspector must do an inspection and determine if any urgent lead hazards are present, such as chipping and peeling lead paint; lead dust; or structural defects, such as roof or plumbing leaks or deteriorating windows that could cause damage to lead-containing surfaces.

If these or any other urgent problems are found, your landlord will have to abate or contain them and have a re-inspection before getting a Letter of Interim Control. Your landlord must provide you with educational materials and notices from the Department of Public Health as part of the emergency lead management plan.

A Letter of Interim Control is valid for one year and can be renewed for one more year. After that, your landlord must delead completely and obtain a full Letter of Compliance. The Letter of Interim Control can be rescinded if your landlord fail to maintain the required standards of lead control.

A revised lead law was enacted during the 1993 session of the Massachusetts Legislature and took effect on 14 April 1994. New regulations now allow encapsulating lead, rather than removing it. All lead removal must be done by a certified deleader and inspected by a certified lead inspector. Since these are private contractors, their quality varies, and the danger of collusion between lead inspectors and deleaders, so that an inspector may pass a unit which still contains unlawful levels of lead. If possible, you should try to get a town or state inspector to verify the results of the final deleading inspection.

7. Lead Paint Notification

Effective 1 September 1995, your landlord must provide you with an official notice outlining the hazards of lead poisoning on a form prepared by the state Department of Public Health. Your landlord must enclose a copy of the most recent lead inspection report for the unit if there has been one, a letter of "interim control" if intermediate steps are being taken to control the lead paint, or a letter of compliance indicating that any necessary deleading measures have been taken. You will be asked to sign a statement certifying that you have received these materials.

This notification requirement parallels the tenant notification requirements under Title X, a comprehensive federal lead poisoning prevention law signed by President George H. W. Bush in 1992.

8. Rent Control

Tenants often ask us, "Is there any limit to how much the landlord can increase my rent?" Nowadays, the answer is almost always, no. As a result of a statewide ballot question in 1994, rent control ended for almost all tenants on 31 December 1996. Certain subsidized apartment complexes still have their rents regulated by HUD or by the Massachusetts Housing Finance Agency (MHFA). There are also about a dozen communities in Massachusetts that still have rent control for mobile home parks only.

9. Satellite and Cable TV

State law provides that your landlord cannot refuse to permit a cable TV operator access to the building to provide cable service to tenants. A landlord cannot prevent a cable operator from entering the building for the purpose of installing or maintaining the cable system if one or more tenants have requested cable. The cable company cannot install cable in your unit without your permission and cannot interfere with your existing rights to use any existing master or individual antenna system. Your landlord cannot discriminate, in rental or other charges, between tenants or occupants who subscribe to cable TV and those who don't.

A regulation of the Federal Communications Commission provides that your landlord cannot prohibit you from installing a TV antenna within the part of the building which is under your control. The regulation applies to video antennas, satellite dishes less than one meter in diameter, and wireless cable antennas. That means that the landlord can prohibit you from putting an antenna on the roof or on the exterior of the building, but cannot prohibit you from putting one inside a window or on a porch or patio which is part of your apartment.

The FCC regulation prohibits any restriction on property within the exclusive use or control of the tenant which impairs a viewer's ability to install, maintain, or use a video antenna. A restriction impairs if it unreasonably delays or prevents the use, unreasonably increases the cost, or precludes a viewer from receiving an acceptable quality signal. The regulation does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the purpose.

10. Habitability

The State Sanitary Code contains detailed requirements for the physical condition of all rental units. This includes many requirements that we ordinarily would not associate with "sanitation," such as requirements for security locks and regulations concerning who pays for utilities. Here are some of its requirements:

  • Heat: The landlord must provide and maintain a heating system in good operating order. The landlord must provide and pay for heating fuel unless the tenant is required to supply the fuel under a written rental agreement. From 16 September to 14 June every room must be heated to a temperature of at least 68 degrees Fahrenheit between the hours of 7:00 a.m. and 11:00 p.m. and at least 64 degrees between the hours of 11:01 p.m. and 6:59 a.m. During the heating season, the maximum heat allowable in the apartment is 78 degrees.

  • Cockroaches and Rodents: The landlord of a dwelling of two or more units must maintain the units free from rodents, cockroaches, and insect infestation and is responsible for exterminating them. Upon reasonable advance notice, you must give the landlord access for exterminating.

  • Kitchens: The landlord must provide within the kitchen a sink of sufficient size and capacity for washing dishes and kitchen utensils, a stove and oven in good repair, and space and proper facilities for the installation of a refrigerator. NOTE: The landlord does not have to provide a refrigerator. However, if the landlord does provide a refrigerator, or agrees to provide one, there are other which laws require him or her to continue doing so.

  • Water: The landlord is responsible for providing and paying for water. The landlord cannot require you to pay for water.

  • Hot Water: The landlord must provide and maintain in good operating condition the facilities capable of heating hot water to a temperature of not less than 110 degrees and not greater than 130 degrees Fahrenheit, in a quantity and pressure sufficient to satisfy the ordinary use of all plumbing fixtures. The landlord is required to pay for the fuel for heating the water unless a written rental agreement provides that the occupant is required to provide the fuel.

  • Structural Elements: The landlord must maintain the foundation, floors, walls, doors, windows, ceilings, roof, staircases, porches, chimneys, and other structural elements of the dwelling so that it excludes wind, rain, and snow; and it is rodent-proof, weathertight, watertight, and free from chronic dampness; in good repair, and in every way fit for the use intended.

  • Snow Removal: The landlord is required to keep all means of egress at all times in a safe, operable condition. The landlord must keep exterior stairways, fire escapes, egress balconies, and bridges free of snow and ice. The landlord cannot require you to be responsible for snow removal.

  • Extermination: The owner of a rooming house or in any other dwelling containing two or more dwelling units is responsible for maintaining the premises free of rodents, skunks, cockroaches, and insect infestation.

  • Garbage and Rubbish: The owner of a rooming house or in any other dwelling containing three or more dwelling units is responsible for collection and final disposal of garbage and rubbish. The owner of any parcel of land, vacant or otherwise, is responsible for maintaining it free from garbage, rubbish, or other refuse. In any dwelling, the owner is responsible for maintaining common areas free of garbage, rubbish, other filth, or causes of sickness. As a tenant, you are responsible for maintaining in sanitary condition parts of the building which you occupy or control exclusively.

  • Smoke detectors: The landlord is required to provide and maintain all smoke detectors required by state laws and regulations.

  • Locks: Every entry door of the building, every door of the main common entryway, every exterior door into the building, and every entry door of each apartment must be "capable of being reasonably secured against unlawful entry" and properly fitted with an operating locking device. The main entry door of a building containing more than three apartments must be equipped to close and lock automatically with a lock, including a lock with an electrically-operated striker mechanism, a self-closing door, and associated equipment. Every opening exterior window must also be capable of being reasonably secured and properly fitted with an operating locking device.

11. Reporting Code Violations

If you think that there are violations of the Code in your apartment, you should call the landlord to notify him or her of your concerns. If you cannot get action from your landlord or if you do not want to deal with him or her, call the local code enforcement agency and ask for an inspection. The local code enforcement agency can order the landlord to make repairs. It can also document conditions. Code violations can be used as a defense to any court action brought by your landlord. Your landlord is also prohibited from retaliating against you for reporting code violations.

The name of the local code enforcement agency varies from community to community. In Boston and Cambridge it is the Inspectional Services Department. In Brookline, it is the Health Department. In most smaller towns, it is the Board of Health. For a heat or other serious violation, the Code requires an inspection within 24 hours.

In most communities, a code inspection is only available on weekdays during business hours. If your heat goes off at night or on a weekend, try calling the police department to document the problem. In some communities, they will take a temperature reading and report the results to the code enforcement agency.

When the inspector comes, s/he should fill out an inspection report and leave a copy with you. If s/he does not, you should ask for it. It is required by the State Sanitary Code. If the inspector finds a code violation, the inspector should issue an order letter to your landlord and mail you a copy. This is also required by the State Sanitary Code. Ask the inspector when you may expect to get your copy. After a week or so has gone by, and you haven't received a copy of the order, you should call the inspector from time to time to inquire about it. In some communities, local officials may be very cozy with property owners. Be pleasant and polite, but a squeaky wheel. If necessary, call the inspector's boss, the agency head, the Selectmen, the mayor's office, or a local state representative, town meeting member, or city councillor. Save all documents. It is your evidence in case of a court hearing.

Perhaps the violation will be corrected promptly. But if your landlord is a chronic violator of the Code (for example, if your heat goes off repeatedly), you should continue calling the code enforcement agency to document your complaint. But now you have additional options:

  • Rent Withholding: You have the right to stop paying rent if conditions are not being corrected and you meet all of the following requirements:

    • The conditions are serious enough to endanger or materially impair your health or safety;

    • You can show that your landlord knew of the conditions before you were in arrears in rent. Since your landlord may lie about what you reported orally, this usually means that you must be able to show a copy of written complaint from you or a notice from the local code enforcement agency before you began withholding rent. The law presumes that the landlord knew of conditions which have existed since you first moved in. But if you have lived in the apartment for several years and you can't show that you've complained about the condition in that time, you may have trouble getting the benefit of this rule.

    • The violations were not caused by you or by anyone acting under your control;

    • The violations can be repaired while you continue to live in the apartment. Lead paint is an exception to this rule. The landlord is required to provide you with alternate housing while your apartment is being deleaded.

    If you decide to use this remedy, you should consult with an attorney to make sure that you have followed all the correct procedures. If you have done so, you cannot be evicted, but you may be required to pay back some of the withheld rent. While the law does not require it, it is very important to put aside all withheld rent in a separate account and keep it there until the dispute has been resolved. When rent-withholding disputes get to court, landlords usually emphasize the non-payment of rent and try to make the tenant look like a deadbeat. It is important to the credibility of your case for you to show that you have all the rent money put aside. Legislation which would require tenants to put withheld rent in escrow is pending as of this writing.

  • Repair and Deduct: Under certain circumstances, you can make the repairs yourself and then deduct the cost from the rent. To do this, you must first have an inspection and verification that violations exist and that they may endanger your health and safety. After the landlord has been notified by the code enforcement agency, s/he has 5 days to begin repairs and 14 days to substantially complete them. If the landlord does not make the repairs within the time limit, you may have the repairs made yourself and deduct the cost from the rent. You may not deduct more than 4 month's rent in any 12-month period. If you decide to repair and deduct, save all bills and receipts for material and labor. The landlord may sue you for excessive deductions, but cannot combine that claim with an eviction action

12. Building Security

The State Sanitary Code requires that a dwelling "shall be capable of being reasonably secured against unlawful entry." Every entry door of the building and of each unit and every openable exterior window must be "capable of being reasonably secured from unlawful entry" and be "fitted with an operating locking device."

In a building containing more than three units, the main entry door must be able to close and lock automatically with a lock, including a lock with an electrically-operated striker mechanism, a self-closing door, and associated equipment.

These are the minimum requirements. But if you have any special needs, you should consider asking your landlord. If you are injured or your property is stolen by an intruder, your landlord's actions will not be measured by the minimum legal requirement, but by what was reasonable.

Some landlords or their employees regularly leave security doors open, or give plumbers, carpenters, and "handymen" keys to tenants' apartments and leave them alone there, or fail to respond promptly to requests to repair locks. In such circumstances, you should complain to the landlord in writing and keep a copy, so that if you are later injured, you will be able to show that the landlord had notice of the condition.

13. Disputes Between Tenants

Disputes between house-mates or between tenants in neighboring apartments can be very difficult to deal with. The landlord may prefer to avoid getting in the middle of these disputes, and that is often the best course. But sometimes you need the landlord's help. We can't tell you how to handle every dispute, but we can try to offer some guidance.

A dispute with a house-mate can be the most difficult to deal with, since you still have to live with the person. If the dispute must be solved through legal process, your rights may depend on who is on the lease. The person(s) on the lease may be a sub-lessor and the others sub-tenants. As sub-lessor, the lease tenants may have the right to evict house-mates who are not on the lease. if all tenants are on the lease, when the lease is up for renewal, the landlord has the right to determine which tenants, if any, s/he will allow to stay under a new lease. So long as the landlord does not engage in unlawful discrimination or retaliation, s/he can enter into a new lease with some house-mates and ask others to leave. If a court action is necessary to evict the tenant(s) who have been asked to leave, it can get complicated. The action may have to be brought with the landlord as a co-plaintiff with the tenants who have signed the new lease.

Lease clauses generally obligate tenants not to disturb residents of neighboring apartments, and courts have held that these clauses give the landlord both the right and the obligation to control such conduct. If you have a problem with a neighbor which you can't resolve by direct discussions, you should discuss this with your landlord. If a neighbor complains about your conduct, you should try to cooperate in resolving the problem.

There are mediation services available which can often be helpful in such instances. In some courts, we have seen court personnel who can be very helpful in trying to resolve a dispute by mediation. Unfortunately, not all courts are so helpful.

14. Illegal Drugs

If a landlord becomes aware that a tenant is involved in illegal drug-related activities on the premises, the law requires him or her to "take all reasonable measures" to evict the tenant as soon as it can be lawfully done. If you have a problem with drug-related activities in your building, you should complain to the police and to the landlord, in that order. If your landlord refuses to deal with drug-related activities in your building, this may entitle you to move out or to break your lease.

If you or any resident of your unit is involved in illegal drug-related activities on the premises, the law gives your landlord some special remedies to evict you quickly. If your landlord can prove that you are involved in illegal drug activities, he or she can begin immediate legal action against you, without waiting for the standard notice requirements. The statute used to say that the landlord could "without process of law, make immediate entry upon the premises." That has recently been amended, and the landlord now must go to court in an expedited eviction proceeding. Many housing authorities now have a zero-tolerance policy towards illegal drugs. If you live in public housing, you need to do your best to keep all illegal drugs out of your apartment at all times. You can get in trouble if other members of your household or even your visitors have drugs on the premises, including common areas, even if you didn't know about it.

If you are the subject of an eviction for illegal drug activities, you can insist that the landlord must prove that these activities are taking place on the premises. Without a lab analysis, a bag of white powder is only a bag of white powder. The landlord has no right to come into your unit and take what he or she believes to be illegal drugs for analysis. Only the police, with a proper search warrant, can come in and remove suspicious substances from the premises.

15. Security Deposits and Last Month's Rent

Under Mass. General Laws, ch.186, 15B, at the beginning of the tenancy, your landlord may charge only:

  • rent for the first month;

  • rent for the last month, calculated at the same rate as the first month;

  • a security deposit equal to the first month's rent; and

  • the purchase and installation cost for a key and lock. This does not mean a key deposit. The law does not allow a key deposit.

The law also regulates how your landlord can accept and hold these funds. For a security deposit, the landlord must:

  • place it in an escrow account in a Massachusetts bank free from the reach of the landlord's creditors;

  • transfer the deposit to the new owner when s/he transfers the premises;

  • give you a receipt showing the amount of the deposit, the landlord's name, the address of the premises, and the name of the bank and the account number in which the security deposit is being held;

  • give you a statement of the present condition of the premises (See the section on property damage for further information about this important document.);

  • If you submit to the landlord a separate list of damages, return a copy of your list to you within fifteen days of receiving it, with either the landlord's signed agreement with the list or a clear statement of disagreement attached.

  • pay you 5% interest per year (or the amount of interest the landlord actually receives from the bank if that is less) on the deposit;

  • keep careful records on the security deposit and make them available to you at reasonable times.

Your landlord must return the deposit within 30 days after you move out. The landlord may only deduct unpaid rent, taxes due under an escalator clause, and the cost of damage you have done to the premises (This does not include normal wear and tear). If the landlord deducts for damages, he or she must follow the procedure in the statute exactly.

The landlord must provide you with an itemized list of damages, signed under penalties of perjury, and evidence of repair cost within 30 days of the end of your occupancy. This rule must be followed exactly, or you can sue the landlord for treble damages plus attorneys fees.

For the last month's rent, your landlord must:

  • give you a receipt that states:

    • the amount of the rent,
    • the address of the premises,
    • the person receiving the rent,
    • that the landlord must pay 5% interest, and
    • that you should provide the landlord with a forwarding address where the interest may be sent; and

  • pay you 5% interest yearly or notify you that you may deduct the interest from your next rental payment. The landlord doesn't have to hold the last month's rent in an escrow account, but he or she may not deduct for damages to the unit from the last month's rent. If the landlord does use an escrow account for last-month's rent, he or she may pay you the amount of interest actually received in the account, rather than 5%.

If your landlord fails to comply with any of these requirements, the law allows you to sue the landlord for damages including return of the deposit. For some violations, damages include three times the interest due or three times the amount of the deposit, plus your attorney's fees. The Massachusetts Appeals Court has ruled that a landlord may avoid the treble damages by returning the security deposit promptly on demand. (Castenholz v. Caira, 21 Mass. App. Ct. 758, 490 N.E. 2d 494 (1986).) A violation of any of these provisions may also be a violation of Mass. General Laws, ch.93A, the Massachusetts Consumer Protection Act.

Since the rules are different for security deposits and last months rent deposits, it is important for you to see that the paper trail makes clear which kind of deposit you are paying. If you pay by personal check, be sure to write an accurate description of the payment in the "memo" section of the check. If you are paying in any other way, be sure that you get a receipt which includes an accurate description of your payment.

The security deposit and last month's rent law does not apply to any rental for a vacation or recreational purpose of 100 days or less in duration. It also does not apply to commercial rentals.

16. Property Damage

It goes without saying that it is important to be careful not to damage the apartment or its facilities. But, of course, no apartment is in perfect condition to start with. And even normal living will cause a certain amount of wear and tear on an apartment. In recent years, there seems to have been an increase in lawsuits over apartment conditions. Whether or not your landlord has taken a security deposit, it is important to document carefully the condition of the apartment when you move in. You must again take steps to document its condition when you move out.

If your landlord has a security deposit, s/he may send you a form labeled "Apartment Condition Statement," which you are supposed to return with any corrections or additions. Be thorough and take this form seriously. You can be blamed for causing the slightest thing wrong with the apartment that is not listed on the form. Be sure to keep a copy of the form that you send to the landlord, and keep it in a safe and secure place.

If your landlord does not give you an Apartment Condition Statement, consider taking an inventory of the apartment when you move in and send the landlord your own condition statement. Be careful to specify which conditions you are asking the landlord to fix and which ones you are just noting for the record.

As a tenant, you are not responsible for ordinary wear and tear to the apartment. But exactly what constitutes reasonable wear and tear is often a matter of opinion. The best protection for you is to document carefully the apartment condition, take care of the apartment while you occupy it, and again document carefully the condition of the apartment when you leave.

For more details on how to do this, see our information sheet "Moving Tips for Tenants." It appears as an appendix to the printed version of this pamphlet, or as a separate document on our Website.

17. Landlords Entering the Unit

It comes as a surprise to many people, but once you have rented an apartment, it belongs to you for the duration of your tenancy. The landlord has no right to enter your home without permission. Unless the rental agreement specifies otherwise, the landlord doesn't even have a right to a key.

Originally, in an agricultural society, the law expected the landlord to rent the property to you and then leave you alone. It gave the landlord no right of access, but also no responsibility for repairs. The modern urban tenancy, especially in a multi-unit building with many building-wide systems, has changed that law. The landlord now has an obligation to make repairs, and the landlord gets a right of access for that purpose. But that does not supersede your rights to privacy and to "quiet enjoyment" of the premises.

You have to allow the landlord "reasonable access" in order to make repairs. What is "reasonable" is the subject of frequent disputes. You may insist on giving the landlord access only by appointment, but you must be reasonable about scheduling appointments. To give an extreme example, since the landlord usually must schedule tradespeople during their normal working day, it is not reasonable for you to insist that the plumber can only come in on Friday and Saturday at midnight.

Plumbers, carpenters, painters, and other tradespeople sometimes seem to live in a completely different time zone. If they fail to keep appointments, make sure you document that fact by a letter to the landlord and keep a copy. Some landlords use lack of access as an excuse. Be sure you keep a good written record of your efforts to allow the landlord access to your apartment to make the repairs you want made.

In a genuine emergency (such as a fire or a burst pipe), the landlord may enter your unit without prior notice in order to deal with the emergency.

You should insist that the landlord or his/her representative be with repair people at all times when they are in your apartment in your absence. It is not unknown for tradespeople to use a tenant's good bath towel as a cleaning rag, steal property, or make long-distance telephone calls from a tenant's phone.

Many leases give the landlord certain entry rights. Under Massachusetts General Laws, ch.186, 15B, a rental agreement may only provide for the following rights to access:

  • to inspect the premises;

  • to make repairs;

  • to show the premises to a prospective tenant, purchaser, mortgagee, or its agent.

A landlord may also enter the premises in accordance with a court order or if you appear to have abandoned the premises.

If your lease allows the landlord to enter for any other reason, that provision is illegal and void. The landlord's right to inspect the premises or to show them to a prospective purchaser does not mean that s/he can do it every day twice a day. You can limit inspections to reasonable frequency. Unless the lease provides that you must give your landlord a key to your apartment, s/he has no right to one. The fact that a lease allows the landlord a right to enter for certain purposes does not mean that the landlord may enter at any time without appointment.

The right of the landlord to enter if you appear to have abandoned the premises sometimes causes a problem at the time of moving out. You may have moved out most of your furniture and intend to return to pick up the last few things and clean up the apartment before turning in the keys. But the landlord may jump the gun and come in ahead of you, remove your remaining property, and try to charge you for the "mess" you left. To avoid this, be clear with your landlord about your plans to vacate, and do it in writing.

We once saw a case where the tenant came back from vacation and found someone else living in his apartment and his furniture stored in the cellar. He wasn't behind on the rent, but he had been away for awhile, and the landlord somehow concluded that he had abandoned the apartment. If you are going away, it helps to inform the landlord of your plans, preferably in writing.

18. Retaliation

Your landlord cannot try to evict you, raise the rent, or change the terms of your tenancy because you have complained of conditions to the landlord in writing or to any government agency or because you have organized or joined a tenants' union or engaged in certain other protected activities.

Any act of raising the rent, attempting eviction (except for non-payment), or making any change in any of the terms of the tenancy within six months after you have done any of these things is presumed to be a retaliation. That means that in any court proceeding, the burden will be on the landlord to prove that s/he is not retaliating against you.

In order to defeat a retaliation claim, your landlord must convince the court that s/he took the action for reasons independent of what you did and that s/he would have done the same thing at the same time even if you hadn't done those things. If the landlord waits until six months after your protected actions, retaliation may still be found, but then it is your burden to prove it.

If your landlord is found to be retaliating against you, s/he will not be able to evict you, and you may be awarded damages from the landlord of from one to three months' rent plus your attorney's fees.

Your landlord also cannot willfully deprive you of heat, hot water, gas, electricity, lights, water, or refrigeration service. Nor can your landlord lock you out or remove you from your apartment without going through the proper court procedure. You can ask the court to issue a restraining order, you can file a criminal complaint against the landlord, or you can sue him for money damages and attorneys fees.

All of this means that it is actually to your advantage to complain about code violations before the landlord gets around to giving you a notice of an eviction or a rent increase. Some people try to claim retaliation when they didn't complain about the violations until after they got the notice from the landlord. It doesn't work. The court won't find that the landlord was retaliating against you for something you hadn't done yet!

19. Consumer Protection Law

Chapter 93A of the Massachusetts General Laws is commonly called the "Consumer Protection Act." Like the Federal Trade Commission Act on which it is based, and similar "baby FTC" laws in other states, it prohibits the use of any unfair and deceptive acts and practices in the conduct of any trade or business.

Renting housing is generally considered to be a trade or business, and the state Attorney General has issued regulations which define unfair and deceptive acts or practices in the rental housing field. Among the things that constitute an unfair practice is if the landlord fails to disclose to you, as a tenant or prospective tenant, any fact the disclosure of which may have influenced you not to enter into the transaction. Also listed as an unfair practice is any violation of any law meant to protect consumers and any act which is oppressive or otherwise unconscionable in any respect. A copy of the consumer protection regulations is available at the State Book Store, at the State House. It is also available on the Web.

If your landlord is the owner-occupant of a two-family or three-family house and owns no other rental property, s/he is not considered to be engaged in a trade or business and is not subject to this act.

20. Types of Tenancies

There are two types of tenancies in Massachusetts. They are: a tenancy for a fixed term and a tenancy at will.

Fixed-term tenancy. A tenancy for a fixed term must be created by a written lease, signed by both the landlord and the tenant. The lease binds both parties. In order for a lease to be valid, it must be in writing and must indicate the date on which it ends. The term is usually for one year, although any other term is possible. It should also state the amount of the rent and what the rent includes. The landlord cannot raise the rent or change what the rent includes during the term of the lease unless the lease itself provides for it. You cannot leave during the term of the lease without legal complications.

Self-extending Lease. Some leases are "self-extending." A self-extending lease is a one-year term lease which automatically extends itself from year to year unless one of the parties gives notice to the other by the deadline specified in the lease, to terminate the lease at the end of its current term. It is as binding as any other lease. Unless you or your landlord give notice terminating the lease, it will keep extending itself, every year, at the same rent. For example, a self-extending lease with a term which runs from September to August may provide that it will extend unless you or your landlord give notice to the other by 1 July. If the notice is not actually received by that date, the lease extends itself for another year. This is only an example. Your lease may provide for a different notice date.

If you have a self-extending lease, be careful that the deadlines are filled in correctly in the blank spaces and be sure to give notice so that it will be received by the proper deadline when you want to move out. Otherwise, the lease may self-extend for another year when you didn't intend it. The landlord can also fall into this trap. Once the lease has self-extended, the landlord can no longer raise the rent over the amount specified in the lease.

Escalator Clauses. Whether and how the landlord can raise your rent during the term of the lease depends on what the lease says. Most leases in the Boston area run from September to August. Your lease will continue in effect until it expires according to its terms. So if you have a lease, your landlord cannot raise the rent before the current lease expires unless the lease itself contains a special provision which allows it. Such a special provision is called an "escalator" clause. There are two kinds of escalator clauses which are commonly found in residential leases in Massachusetts.

The most common kind of escalator clause is a tax escalator clause. This allows your landlord to charge you a certain percentage of the increase in real estate taxes for the property. The exact percentage must be filled in, and it must be proportional to the percentage that your apartment bears to the whole property. If your apartment is one-third of the building, your landlord cannot require you to pay one half the tax increase. Some landlords just fill in "proportionate" in the percent space in the form. The law does not permit this. An escalator clause which does not have an exact percentage filled in is invalid and can be ignored.

If your lease contains a valid tax escalator clause, your landlord may increase your rent to cover the tax increase. You have a right to see the tax bills for the property and to check the landlord's calculation. If the landlord won't provide them to you, you can get the figures from the assessor's office in your city or town hall.

The RHA form, which is the one most commonly used in the Boston area, provides that you must pay the amount when the landlord demands it. If you cannot afford to make the escalator payment in one lump sum when the landlord demands it, you should discuss this with your landlord as soon as possible. If you have been a good tenant, your landlord may be willing to accept a payment arrangement.

The tax clause must also provide that if the landlord gets a tax abatement, s/he will pass that abatement on to the tenant according to the same percentage. The current RHA lease forms comply with this requirement.

The other kind of escalator clause that has been commonly used in residential leases is the "rent control escalator." Although the RHA lease form still contains the rent control escalator clause, the abolition of rent control has made this clause obsolete.

The RHA form lease contains a space in the margin where you are asked to initial the rent clauses signifying that you understand and accept them. If this is not done, the lease will be ambiguous as to whether both parties accepted the escalator clauses as part of the contract. You then could argue (and a court might agree) that the escalator clauses were not part of the contract.

This is a special case of a more general rule of construing documents. Whenever a document is ambiguous, the courts will resolve the ambiguity against the interests of the person who prepared the document. Since the landlord prepares the lease, any ambiguity created by the landlord's lack of care will be construed against the landlord's interests.

The law requires that your landlord must give you a copy of the lease, signed by the landlord, within 30 days after you sign it. The same goes for a written tenancy at will agreement. If the landlord fails to return the lease within the time specified, you may be considered a tenant at will. The law also provides a criminal fine of $300.00, though this is rarely enforced. Failure to return a signed copy of a lease may also constitute a violation of the Consumer Protection Act.

Tenancy at will. A tenancy at will may be in writing, but it is often an oral agreement. With a tenancy at will, either party may terminate the tenancy by giving the other a notice one full rental period or 30 days in advance, whichever is longer. A notice terminating a tenancy at will is commonly called a "30-day notice," but this is a misnomer. The notice is not effective unless it states when the tenancy is to terminate and the terminates the tenancy on a rent day. For example, if the rent is payable on the first of every month, you cannot send the landlord a letter on the 15th of this month terminating your tenancy on the 15th of next month. You can only terminate the tenancy on the first of the month.

The notice must be received one full rental period and at least 30 days in advance in order to be effective. This is so that tenants who pay rent by the week are entitled to at least 30 days notice of termination. Note: Since February does not have 30 days, a notice to terminate a tenancy at the end of February is not valid unless it is received several days before the end of January.

A common form of termination notice reads something like "I hereby terminate your tenancy as of the end of that month of your tenancy which begins next after you receive this notice." This legal formula usually covers most of the complications of these rules.

To raise the rent if you are a tenant at will, your landlord must give you a proper notice terminating your tenancy and offering you a new tenancy at the new amount. Landlords who don't know the legal requirements often try to raise a tenant's rent with a notice which is not legally sufficient. A notice in the form "As of 1 October 1999, your new rent will be $xxx" is not sufficient.

If you receive a notice like that, your old tenancy continues in effect, and you are legally entitled to continue paying the old rent. If the landlord tries to evict you for non-payment of rent, you should go to court and tell the judge that you think the notice is invalid. The judge should deny the landlord's eviction claim.

Now suppose your rent is due every month on the 15th, and you get a notice which says, "Your tenancy is hereby terminated as of the first of January. If you desire to remain a tenant, your new rent will be $1000." Remember, a notice terminating a tenancy at will must expire on a rent day. So, if your rent is due on the 15th of each month, your landlord can only give you a notice terminating your tenancy on the 15th. To be valid, you must receive the notice no later than the 15th of the previous month. Since your rent is not due on the first, a notice which claims to terminate your tenancy on the first does not terminate your tenancy at all.

Here is an example of a valid notice which a landlord may send to terminate your tenancy and ask you for a rent increase. Assume that your rent is due on the first of the month and you actually receive the following notice from your landlord on 30 November 2001:

I am terminating your tenancy as of the end of that month of your tenancy which begins next after your receipt of this notice. If you wish to remain in the apartment, I hereby offer you a new tenancy at a monthly rent of $1000 per month, starting 1 January 2002.

This is a valid notice to terminate your tenancy on 1 January 2002. Now you must decide how to respond. For some options, see the section on rent increases.

A notice terminating a tenant at will requires a minimum of 30 days notice. Depending on whether February has 28 or 29 days, a notice sent during the last two or three days of January, which purports to terminate a tenancy at the end of February, is not valid.

Rooming Houses. At one time rooming house tenants hardly ever had written rental agreements. Now they are becoming more common. If you have one, you have the rights stated in the agreement. If not, and you have lived in a rooming house for three months or more, you have all the rights of a tenant at will. Although a notice of one rent period is necessary to terminate a tenancy at will, the law also requires a minimum notice period of 30 days. A notice on 17 December cannot terminate a tenancy on 31 December, even if you pay rent every week.

If you have lived in a rooming house for 30 days or more, you are entitled to at least 7 days notice to vacate. If you have been there for less than 30 days, there is no specific notice requirement. Your other rights are less clear. You probably have the right to a court hearing before eviction, at least if you have been there for 30 days. The best thing is to insist that you have the right to a court hearing and force the landlord to go to court. When the situation is ambiguous, you should assert your rights under the interpretation that most favors you. Your landlord will do likewise, and the court will decide.

21. Breaking Leases

A lease is a contract which binds you to rent the apartment from the landlord and the landlord to rent the apartment to you for the term specified. But circumstances change, and when this happens, you may want to break the lease.

If there are code violations or other breaches on the landlord's part, you may be legally entitled to break the lease. If there are no such problems, you are responsible for the rent for the balance of the lease term, but this responsibility is qualified by a number of considerations, both legal and practical.

First of all, the landlord is not allowed to sit with an empty apartment for the rest of the lease term and look to you to pay. The landlord must make reasonable efforts to find a substitute tenant. The legal term for this is "mitigating damages." If the landlord finds a substitute tenant, they is entitled to sue you for their losses. If, in a recessionary market, the landlord couldn't get as much rent as you were paying, they can sue you for the difference for the balance of the lease. If the apartment was vacant for a month or two before a new tenant took over, the landlord can sue you for the lost rent. They can also sue you for the cost of re-renting, such as a real estate broker's fee or the cost of advertising.

You may want to try to find a substitute tenant yourself. The landlord is entitled to screen tenants and determine to whom to rent. But if the landlord unreasonably turns down someone you found, a court may find that they have failed to mitigate damages.

In an inflationary rental market, the landlord may try to re-rent the apartment for a higher rent than you were paying. If they can get a higher rent, they are entitled to do so. But if the landlord over-estimated the market and can't rent the apartment at the higher asking rent, you can refuse to pay the lost rent for the months the apartment was vacant because the landlord "got greedy." Should the landlord succeed in re-renting the apartment at a higher rent, the additional rent the landlord receives, for the remaining months of your lease, will offset any losses that they try to collect from you.

The landlord is not entitled to collect double rent for the apartment. If, say, you have paid rent through the end of March, and the landlord re-rents the apartment for the first of March, you are entitled to have the landlord refund your March rent payment. If you move to someplace nearby and can do so, it is a good idea to check on the apartment to see when new people have moved in.

22. Rent Increases

Most tenants and landlords think that a landlord can raise the rent any time by decree. But a tenancy is a contract. Changing the rent requires the agreement of both parties. How that happens depends on whether or not you have a lease. Many notices from landlords attempting to raise the rent are invalid. For further information, see the section on Types of Tenancies.

Notice requirements depend on the type of tenancy, and the landlord must give the notice required by the type of tenancy you have. If you have a term lease, The landlord cannot raise the rent until the lease expires, except to invoke a valid escalator clause. In order to invoke an escalator clause, the landlord must give you notice in the time and manner required by the lease clause.

If you have a fixed-term lease which is expiring, the landlord is not required to give you any notice. But since most leases are renewed annually, and most landlords and tenants expect that to be the case, landlords often give notice anyway if they don't want to renew the lease.

While you the landlord doesn't legally have to give you notice of a fixed-term lease expiring, you don't have to give the landlord notice either. You can simply leave on the last day of your lease. Usually you will want to give some notice in advance, if only to let the landlord know that you are using your last month's rent or the address to which the landlord should return your security deposit. Even if these reasons don't apply, it is a good idea to give the landlord some notice of your intentions. As we've mentioned elsewhere, keeping your landlord informed of your moving plans may prevent a misunderstanding where the landlord may come in before you're finished moving and throw out items that you intended to return for. If you intend to stay beyond the expiration of your lease, you have even more reason to want to discuss this with your landlord. You don't want to have a new tenant suddenly show up expecting to move into your apartment. Discussing an expiring lease in advance may not be the law, but it is a good idea.

When you receive a notice of a rent increase from your landlord, you have several options.

First, if it is an invalid notice, you can ignore it. This will probably result in a fight with your landlord and, perhaps, a court case. If the notice was clearly invalid, you should win in court, but the landlord will probably start again with a new notice, and eventually there will be a valid notice.

If you have gotten along well with your landlord and are happy with the apartment, and you think the increase is reasonable, you can agree to the increase and pay it, whether or not the notice was valid. This will establish a new tenancy at the new rent.

Another option is to try to negotiate with your landlord. As we've said, rent is established by contract, not decree. If you want to negotiate, take a day and go apartment-hunting. Look around and see what kind of apartments are available out there and at what price. If you find that the landlord's price is reasonable for the market, you may want to stay and pay the rent, if you can afford it.

If you think you may have code violations in your apartment, you should consider having a housing code inspection. Code violations may prevent your landlord from evicting you, give you claims for money damages against your landlord, and can be a helpful bargaining chip when you negotiate. See the section "Reporting Code Violations" for more information.

If you find another apartment which you like better or can afford better, even taking into account the cost of moving, you may want to move. If you find a better apartment for a price similar to what your landlord is asking, you may want to negotiate with your landlord and try to stay where you are at a lower rent. Or perhaps you can get the landlord to fix up your apartment in return for a rent increase. Without rent control, it's entirely up to your landlord what s/he is willing to do. If you can't come to an agreement with your landlord, you will eventually have to move.

Another option is to stay right where you are and keep paying the old rent. If that happens, the landlord must make a decision. If the landlord accepts your rent checks without reserving his or her rights in writing, that may be considered a waiver of the termination notice and creation of a new tenancy at the old rent.

On the other hand, the landlord may hold your rent check to the end of the month, write a note on the back accepting the money only for "use and occupation," and send you a letter to that effect. In that case, s/he may start an eviction action against you in the local District Court (or in Housing Court, if you live where one has jurisdiction). But so long as you have paid the old rent, this will not be an eviction for non-payment. This is important because when an eviction is based on a termination of tenancy which is not for non-payment of rent and is not otherwise your fault, the court can give you time to find another apartment. See the section on Evictions for more information.

Usually, you will not have to pay a rent increase if you have not agreed to pay it. When your tenancy expires or has been terminated, you are called a "tenant at sufferance" until a new tenancy is established. As a tenant at sufferance, your obligation is to pay the "fair value" of the use and occupation of the apartment. Almost always, the most recent rent that you contracted to pay is the best evidence of the fair value of the apartment. If the apartment is in bad condition, the fair value may actually be less. Thus it is unlikely that you will have to pay a rent increase that you haven't agreed to pay. Occasionally, however, your landlord may try to prove to the court that the fair value of your apartment is something higher than the rent that you last agreed to pay. It is rare for a court to accept such proof, but it does occasionally happen.

23. Condominium Units

There are special problems when you rent a condominium unit. The law makes your landlord responsible for providing heat, hot water, and other services. But in a condominium, these services may be controlled by the unit owners association. The association has to deal with the landlord as the unit owner, but they also must deal with you as the person who is actually on the premises.

Some condo associations, in times of high fuel costs, have been known to keep the heat below the legal temperature limits in order to save money. But your landlord, is still responsible to provide you sufficient heat as defined by law, and you can withhold rent if the heat is insufficient.

In general, any building-wide service is the responsibility of the condo association. Conditions within the apartment are more likely to be controlled by the landlord. This can be more complicated than it seems, and it may vary from one condominium to another. In some condos, the condition of the radiators and windows are the responsibility of the association, in others the individual unit owner. If the local code enforcement agency finds code violations which may be under the purview of the condo association, you should ask them to cite both the landlord and the association. Although they should do so, some local code enforcement agencies may not do so without pressure.

A pair of statutes enacted in 1991 and 1992 provide that if the landlord doesn't pay condo fees, the condo association can legally require you to pay rent directly to the association, to be applied toward condo fees. The law prohibits the landlord from taking any reprisal against you for doing so.

Most condominiums have rules which apply to all residents, including tenants. Make sure to get a copy of such rules, since the rental agreement will probably require that you abide by them.

24. Condominium Conversions

Your rights if you live in a building undergoing a conversion to condominiums or cooperatives are governed by special legislation called Chapter 527 of the Acts of 1983. It applies to nearly all residential condominium and cooperative conversions. It does not apply to buildings containing fewer than four residential units unless the building is part of a housing development with two or more adjacent, adjoining, or contiguous buildings under common ownership, used in whole or in part for residential purposes, and containing four or more units.

Notice. When your landlord is going to convert a property, s/he must give to each tenant a notice of intent to convert. The notice must state in clear and conspicuous language:

  • that the landlord has filed or intends to file a master deed at a registry of deeds whose location is stated in the notice or has filed or intends to file cooperative articles of organization with the State Secretary's office;

  • that any tenant residing there on the date the notice of intent is given shall have a period of time stated in the notice, counted from the date the tenant receives the notice, before the tenant will have to vacate;

  • that any tenant residing there on the date the notice is given shall have a period of time stated in the notice to purchase the unit on terms and conditions which are substantially the same as or more favorable than those which the landlord will to the public generally for 90 days following the expiration of the tenant's right to purchase;

  • a statement of the other rights and obligations described below.

If the landlord intends to sell or offer for sale units in only part of the development within the first year after s/he has formed the intent to convert, the landlord must give to each tenant in any unit which s/he doesn't intend to sell or offer for sale within the year, a notice informing the tenant of the date when the landlord reasonably expects to offer or sell the unit. Thereafter, the landlord must give you the notice of intent to convert as above.

Eviction Restrictions. The landlord cannot bring any action seeking a "condominium or cooperative eviction" during the "notice period," which is one year after you receive the notice. If the housing unit is occupied in whole or in part by a handicapped tenant or is occupied by a tenant who is 62 years of age or older or a low or moderate income tenant, the notice period is two years. You have the burden of proving your entitlement to the extended notice period. If there is a rental agreement in force, the notice period does not expire before the rental agreement expires under its own terms.

A "condominium or cooperative eviction" is an eviction by the landlord or by a purchaser or prospective purchaser in order to facilitate the sale of the unit as a condominium or cooperative unit. An eviction is presumed to be a "condominium or cooperative eviction" if the landlord has formed the intent to convert. The law contains extensive provisions for determining when the landlord has formed the intent to convert. An eviction for non-payment of rent or other violation of a rental agreement is not a "condominium or cooperative eviction," and you can still be evicted for those reasons.

A low or moderate income tenant is a person or group of persons residing in the same unit where the total income of all residents for the twelve months immediately preceding the date of the notice is less than 80% of the median income for the area as promulgated by the U. S. Department of Housing and Urban Development.

Rent Increase Limits. During the notice period, the landlord cannot increase the rent more than the percentage increase of the Cost of Living Index, and in any event no more than 10% per year, except that the landlord may collect under a valid tax escalator clause. The landlord must extend the rental agreement until the end of the notice period or the 90 day right to purchase period, whichever is later. Except for a permitted rent increase, the landlord cannot change the terms of the rental agreement during the notice period.

Right to Purchase. With the notice of intent to convert, the landlord must give you the right to purchase the unit on terms and conditions which are substantially the same as or more favorable than those which the landlord will extend to the public generally for the 90 days after the expiration of your right to purchase. You may exercise your right to purchase by executing a purchase and sale agreement within 90 days after the date you receive a copy of the purchase and sale agreement properly executed by the landlord.

Relocation Benefits. The landlord must pay to any tenant who does not purchase the unit or another unit in the same development the actual documented cost of moving, up to $750.00 per housing unit. If the unit is occupied by a tenant who is entitled to an extended notice period, the maximum benefit is $1000.00 per housing unit. The payment is due within ten days after you vacate the unit. To be eligible for these benefits, you must have paid all rent and must voluntarily vacate the unit on or before the last day of the notice period.

Relocation Assistance. The landlord must assist elderly, handicapped, and low or moderate income tenants in finding comparable rental housing within the same city or town which rents for no more than the rent which you were paying when you received the notice of intent to convert. If the landlord fails to find such substitute housing for you, the notice period is extended until the landlord find such comparable rental housing, or two additional years, whichever comes first.

Subsequent Tenants. If the tenant who is entitled to notice of intent to convert vacates before the first sale and transfer of the unit, and the landlord seeks to re-rent the unit, s/he must give to each prospective tenant a written notice, prior to the inception of the tenancy, informing them that the unit is a condominium unit and, if applicable, that it is currently being offered for sale or will be offered for sale within ninety days of the inception of the tenancy.

Violations. Violations of the act or any local ordinance or bylaw adopted under its authority are punishable by a fine of not less than $1000.00 or by imprisonment of not less than 60 days. Each unit converted in violation of the act constitutes a separate offense. A violation does not affect the validity of a conveyance to a purchaser for value who has no knowledge of the violation. The District, Superior, and Housing Courts may issue orders to restrain violations.

Local Legislation. A city or town may adopt provisions different from these by a 2/3 vote of the local legislative body and, in a city, the approval of the mayor. If you are facing a conversion, you may wish to check with your city or town clerk to see if there is any local legislation governing condo conversions.

25. Evictions

Tenants often receive eviction notices. Sometimes the landlord must send a notice terminating your tenancy in order to raise the rent legally. Sometimes the landlord simply wants to harass. Whatever the case, you are entitled to a hearing. A landlord cannot lock you out of your apartment, or even set foot in it without your permission. If s/he tries, the police may be able to help you. You can also get a restraining order against your landlord in the local District Court or Housing Court. Only a judge can order you to move. Until then, you have the right to remain in your apartment, continuing to pay the old rent. If the eviction is not your fault, the court can give you time to find another place and move.

While your landlord cannot retaliate against you (see the section on Retaliation), a landlord may otherwise evict a tenant at will or a tenant whose lease has expired for any reason whatever or for no reason at all.

Before the landlord can go to court, s/he usually sends a written notice to quit. This is the official way of terminating a tenancy. Depending on the type of notice, it may order you to "quit and deliver up" your apartment in seven, fourteen, or thirty days or some other period. You do not really have to move in the time stated on the form, but the landlord must wait until that time has run out before starting court proceedings.

Non-Payment of Rent. If the eviction is for non-payment, the notice will usually tell you to vacate in 14 days. If you are a tenant at will, the notice should also tell you that if you haven't received such a notice within the past twelve months, you may avoid eviction by paying all rent due within ten days. If the notice does not say that, you may pay reinstate your tenancy by paying all rent due at any time up until the day the answer is due in a court action for eviction. If you have a lease, you can always reinstate your tenancy by paying all rent due, with interest and costs of suit, any time up until the answer is due in a court action for eviction. Pay by certified mail, return receipt requested, or in person with a witness present. If the landlord refuses the rent, you're covered so long as you can prove that you tried to pay it.

Other Kinds of Eviction. If the eviction is for some reason other than non-payment of rent, a tenant at will is entitled to a notice to quit at least one full rental payment period in advance, or 30 days, whichever is greater (If your landlord sent you a proper termination notice in order to raise your rent, that notice is sufficient if you haven't paid the new rent.).

If you have a lease which has expired, your tenancy is already terminated, and no other notice is legally necessary. If you are evicted for violating some provision in the lease, the lease will state how much notice you must be given. Most leases in the Boston area provide for a seven-day notice for violation of the lease.

Court Action. In Massachusetts, a legal action to evict is called a "summary process" action. After the time specified in the Notice to Quit has expired, you will get a Summary Process Summons from the District Court or Housing Court (A summary process action may also be brought in Superior Court, but it is rarely done.). It will tell you the date of the trial and the date by which you must serve a written answer on the landlord. If you want to contest the eviction in court, you should have a lawyer. If you are proceeding without a lawyer, you should file an answer with the court clerk and serve it on the landlord or the landlord's lawyer so that it is received by the deadline stated in the summons. Courts usually have forms for you to file an answer.

If the eviction action is brought for non-payment of rent or for any reason which is not your fault, you may bring counterclaims against your landlord, seeking damages for any claims which arise out of the property or rental. It is common for tenants to bring claims for code violations, quiet enjoyment, retaliation, consumer protection violations, and the like.

You can also file "discovery" by the same deadline stated above. This will automatically postpone the trial date by two weeks. Discovery is a legal request for information about the landlord's case. It can take the form of written questions ("interrogatories"), requests for the landlord to produce documents, or requests for the landlord to admit certain facts. The landlord must respond to the your discovery within ten days of the day s/he receives it. Court rules also allow the landlord to send discovery to you.

Jury trials are available in Housing Court, in District Courts in Middlesex Norfolk, Essex, and Berkshire Counties, and in Superior Court (Pending legislation may eventually extend the availability of jury trials to District Courts in additional counties.). If the action is brought in a court where jury trials are available, you must claim a jury trial, if you want one, no later than the date the answer is due. Otherwise, you will lose your right to a jury trial, and the trial will be before a judge sitting without a jury. If you want a jury trial but aren't sure whether one is available in the court where you have been sued, the safest thing is to claim one anyway.

If the action is brought in a District Court where a jury trial is not available, after the case has been tried before a judge in the District Court, you will be able to appeal the case to the Superior Court for a new trial before a jury.

If you are contesting the eviction, or if you just want time to move, every person named in the summons must go to court on the trial date. Any person who you does not go to court will lose the case by default. You can represent yourself in court, but you cannot represent anyone else in your household unless you are a lawyer. One house-mate cannot represent another house-mate, nor can an adult child represent an elderly parent or a wife represent a husband. Representing someone other than yourself in court is practicing law, and only a lawyer is allowed to practice law.

At trial, your landlord must prove his or her case with hard evidence. You must do likewise with your counterclaims. This is done with documents, records, and witnesses. That's why we keep talking about keeping a paper trail. But documents can only go so far. Our system of justice requires the testimony of live witnesses. A written statement from a witness is not admissible in court -- not even if it's notarized. The other side must have the opportunity to cross-examine the witness, and the court must be able to observe the witness in order to assess the witness's credibility. This cannot be done with a written statement.

After trial, the judge will usually take the matter under advisement. That means that you or your attorney will receive the decision in the mail. This can take anywhere from a few days to many months, depending on the complexity of the case. If the eviction is for non-payment of rent or for some other reason which is your fault (violation of lease provisions, unsanitary conditions, noise, etc.), a physical eviction can take place as soon as twelve days after the Court makes its decision.

Unless you live in a rooming house and have lived there for less than three months, or the eviction is for non-payment of rent or for some other reason which is your fault, the court can give you time to move. If you have not agreed to pay a rent increase, but have continued to pay rent at the old rate, the eviction is not for non-payment. And the fact that you have not agreed to pay the increase does not make the eviction your fault. That is why it is important that you do not stop paying rent, but continue to pay the old rent during any eviction proceeding, unless you are withholding rent because of housing code violations.

Ordinarily, the court can give you up to six months to find another apartment. If you are 60 years of age or older or are handicapped, the court can give you up to twelve months. This is in the discretion of the judge. Most judges prefer to give you a couple of months at a time, so that you won't wait until the last month to look for a new place. If you can't move that fast, you can go back for an extension, so long as the six months (or twelve months) hasn't been used up yet.

Be sure to go back to the court a couple of weeks before the time expires. Give the landlord or his/her lawyer advance notice when you are going back to court for an extension. Be prepared to show ads that you have answered and other tangible evidence of your searching for another apartment. Remember that you cannot get more than six months altogether (or twelve months altogether if you are over 60 or handicapped.).

Settlement. Negotiating with your landlord can save you the expense and stress of a trial and a forcible eviction. In a tight housing market, you need several months to find another apartment. Usually, the court is usually not going to force you to leave more quickly, but knowing how much time you have can be helpful. If you are a low-income tenant, the cost of moving can be as great an obstacle as finding an apartment. Since the landlord will have to pay more for a forcible eviction, they may be willing to pay for your moving costs. If you have made counterclaims, try to get the landlord to pay you something or forgive unpaid rent for your most meritorious counterclaims. Be realistic about your counterclaims. Courts today do not award large sums of money to tenants with small apartment problems or technical infractions.

CAUTION: If you settle things with your landlord before the court hearing, make sure the settlement is in writing and some kind of agreement is filed in court. Go to the court hearing even if you have settled, to make sure that the landlord keeps his word. Some landlords have been know to "settle" with a tenant, then go to court and get a judgment for possession when the tenant doesn't show up.

The Execution. After a landlord has received a judgment for possession and any stays allowed the tenant have expired, the court issues a document called an "execution." The landlord gives the execution to a constable or deputy sheriff, who comes down with a mover to move you out. The constable or deputy sheriff is required to give you forty-eight hours notice in advance of the day they will come to move you out. Some courts say that the forty-eight hours cannot be Friday to Monday, but must be over two business days. The actual moveout cannot take place between 5 PM and 9 AM or on Saturday, Sunday, or a legal holiday. Your possessions will be placed in storage and will be released when you pay the storage company its fees. After six months, the storage company may sell your possessions to pay for the storage fees.

If you bring the rent up-to-date by paying the landlord the amount of the money judgment in full, plus any additional payments for use and occupancy that has accrued since the judgment, you again become a lawful tenant. In that case, the landlord cannot use the execution for possession and must return it to the court. If you bring the rent current before the execution issues, your landlord must notify the court, and no execution will issue. In other words, your landlord cannot continue to evict you if s/he accepts full payment of the rent. But at that point, the landlord may refuse to accept full payment of the back rent. If s/he does that, s/he may still try to enforce the judgment through collection process.

26. Housing Courts

In the early 1970s, the state began to recognize that landlord-tenant law was a specialized area which required a specialized court. The Boston Housing Court was established in 1972, followed the next year by the Hampden County Housing Court. Other Housing Courts have been created since then for other parts of the state, and the Hampden County Housing Court has been expanded to cover all of Western Massachusetts. But as of yet, not all parts of the state are covered by a Housing Court.

The Boston Housing Court covers the city of Boston. The Northeast Housing Court covers all of Essex County, the city of Lowell, and the towns of Billerica, Chelmsford, Dracut, Dunstable, Groton, Pepperell, Shirley, Tewksbury, Tyngsborough, and Westford in Middlesex County. The Southeast Housing Court covers all of Bristol and Plymouth Counties. The Worcester County Housing Court covers all of Worcester County, the town of Bellingham in Norfolk County and the towns of Ashby and Townsend in Middlesex County. The Western Massachusetts Housing Court covers all of Hampden, Hampshire, Franklin, and Berkshire Counties. Anywhere else in Massachusetts, the case goes to District or Superior Court.

Note that Cambridge, Somerville, and Brookline are not covered by a Housing Court. Note also that there are some border areas, especially near Commonwealth Avenue in Brighton which have Brookline postal addresses and phone numbers but are actually in Boston and are covered by the Boston Housing Court.

If you are within the jurisdiction of a Housing Court and are sued for eviction in any other court, you can transfer the action to Housing Court in order to buy some time and make sure that the judge who hears your case will be familiar with housing law. You can do so by filing a simple form which is available from the Housing Court. If you want a jury trial, be sure to claim it with your transfer, or you may lose the right.

27. Other Resources

The book Legal Tactics: Self-Defense for Tenants is a far more extensive handbook for tenants in Massachusetts. It is available to tenants for $15.00 from Massachusetts Continuing Legal Education, Inc., 1.800.966.6253.

    Some telephone numbers:

  • Boston Inspectional Services: 617.635.5322
  • Brookline Health Department: 617.730.2306
  • Cambridge Inspectional Services: 617.349.6100
  • Somerville Health Department 617.625.6600
  • Mayor's Office of Consumer Affairs (Boston): 617.635.4165
  • Mass. Commission Against Discrimination: 617.727.3990
  • Mass. Consumer Protection Division: 617.727.8400

  • Greater Boston Legal Services: 617.371.1270
  • Greater Boston Elderly Legal Services: 617.371.1234
  • Harvard Legal Aid Bureau (Cambridge): 617.495.4408
  • Cambridge/Somerville Legal Assistance: 617.494.1800
  • Boston College Legal Assistance (Waltham): 781.893.4798
  • Boston Bar Association Volunteer Lawyers Project: 617.423.0648

This summary is provided by the law office of A. Joseph Ross, J.D. It is based on Massachusetts law at the time it was written and is intended to alert clients to issues. It is not exhaustive and is not a substitute for specific legal advice. Copyright 1997 - 2002 by A. Joseph Ross. Some of the material in this pamphlet was contributed by Elena Rutrick, Esq. Permission to reproduce this summary is freely granted, provided that it is reproduced in its entirety, without any change, addition, or deletion.

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