Landlord-Tenant law in Massachusetts stems from the concept that there are two legal components of a tenancy. The first component is the right to own the property. The second is the right to occupy the property. The landlord is usually the owner of the property. The tenant has a right to occupy that property. For purposes of this discussion, the landlord-tenant relationship will assume a lawful occupancy of the tenant by means of a lease or tenancy-at-will. Much of this discussion is centered on minimizing landlord liability on legal fronts.
1. BE CLEAR ON THE TYPE OF TENANCY AND WHO ARE THE TENANTS
In most cases, there is either a lease or some other document which defines the responsibilities of the parties. I strongly recommend a lease in all circumstances. The purpose of a lease is to define the occupants, terms and duration of the tenancy. The lease should clearly define the obligations of the landlord. Where the lease is silent, statutes and common law will apply, as relevant and lawful. In some cases this may be beneficial or detrimental. As a landlord, there is comfort in knowing that the unit will be occupied for a fixed period of time. As a tenant, there is comfort in knowing the repair responsibilities of the parties and that the rent will not increase. First, many landlords make the mistake of not renewing their leases each year. Depending on the terms and conditions, it could result in a tenancy month-to-month, tenancy at sufferance or some other mutation of either. Second, all of the adult and minor occupants residing in the property, even if they are not legally bound to the lease, should be clearly identified. Generally, under Massachusetts laws, all persons occupying a dwelling for three (3) consecutive months shall constitute a tenancy-at-will. Therefore, even though you may not have intended to create a tenancy with a third party, the mere existence of that third party in the dwelling may make them a tenant. This is typically the situation when a significant other or family member moves into the apartment after the lease was signed.
2. RENT, SECURITY DEPOSIT, LAST MONTHS RENT AND USE AND OCCUPANCY
In Massachusetts landlord-tenant law, there is much to know however, the following terms should be committed to the permanent memory of every landlord:
a. RENT. Rent is what the landlord receives as compensation from the tenant during the agreed upon tenancy. Normally, this is a monthly fixed amount due on the first of each month and applied for that month.
b. SECURITY DEPOSIT. A security deposit is an amount, no greater than the amount of monthly rent, usually created at the inception of the tenancy, and held by the landlord in an account which meets the requirements of M.G.L.c.186 Section 15B. The landlord must notify the tenant of the location and details of the account in at the bank where it was created. In addition, the landlord must issue the tenant a Property Statement of Conditions. Lastly, the landlord must pay the tenant interest which accrues on the account every 12 months and within 30 days after the termination of the tenancy. The penalties for violating the security deposit laws are severe and may result in the return of the security deposit to the tenant, and damages, including attorney’s fees and costs.
c. LAST MONTH’S RENT. Last month’s rent is an amount received by the landlord from the tenant, which shall not exceed the first month’s rent, to be applied at the end of the tenancy. The landlord ‘shall give to such tenant or prospective tenant at the time of such advance payment a receipt indicating the amount of such rent, the date on which it was received, its intended application as rent for the last month of the tenancy, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom the rent is received, and a description of the rented or leased premises, and a statement indicating that the tenant is entitled to interest on said rent payment at the rate of five per cent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held payable in accordance with the provisions of this clause, and a statement indicating that the tenant should provide the lessor with a forwarding address at the termination of the tenancy indicating where such interest may be given or sent,’ M.G.L.c.186 Section 15B (2)(a).
d. USE AND OCCUPANCY. Use and Occupancy are like rent payments insofar as they are intended to be applied towards the amount the tenant owes for residing on the property however, the classification has a very important legal significance. Use and occupancy payments are received by the landlord after the proper termination of the tenancy (ie., 30-Day Notice to Quit or 14-Day Notice to Quit). All payments received by the landlord after the proper termination of the tenancy should be identified and acknowledged by the tenant as ‘use and occupancy’ or else the landlord runs the risk of establishing a new tenancy and nullify all the time and expenses related to terminating the tenancy in the first place.
3. MAINTAIN A PROPERTY/TENANT JOURNAL
Most landlords tend to get sloppy with their paperwork as years pass. This is often the case when the property is in excellent condition and the tenants are stable. However, in most cases of tenant default, it comes with little notice and with great upset. When a landlord initiates an eviction action, the tenant will most likely allege the landlord failed to do certain things to the property which entitles them to damages. Regardless of whether the claims are real or fabricated, the landlord needs to be able to recount the history of the property during the tenant’s occupancy including, but not limited to the following: rent receipts; delinquencies; disturbances; damages; repairs; and, communications. The landlord’s actions, as well as inactions are very credible at trial when he’s able to recount a detailed history of complaints, defaults, repairs, and communications. The journal is also invaluable as it supplements and assists the landlord in compiling an accounting of expenses and capital improvements for tax purposes. My personal tip is to encourage all tenants to use technology when available. Text messages and email are excellent forms of communication, may be stored for years and are admissible forms of evidence at trial.
4. REGULAR INSPECTIONS OR HABITABILITY INSPECTIONS.
This is an issue which is very debatable and should be exercised with caution. When push comes to shove and a landlord is forced to initiate an eviction action, the tenant will most likely counterclaim against the landlord. These claims may include the condition of the premises, technical lease violations or other issues which involve the tenancy. Often, the tenant will contact inspectional services or the local Board of Health to conduct an inspection of the premises. In which case, the landlord will most likely receive a demand including a laundry list of violations. From experience, I can say that often times the landlord never actually knew the conditions existed prior to recieving the demand notice. It could be that the violations were actually the intentional destruction of the premises by the tenant. The tenant simply may have never notified the landlord in advance. Or perhaps the landlord knew about the condition, but simply overlooked or forgot about the repair. Nevertheless, the conditions now exist and must be addressed prior to going forward with the eviction action. Trust be told, there are some landlords who simply hedge the bet that they will never have to address the repair problem. However, for the diligent landlord who never wants to become a victim of an allegation of disrepair, there are several preventative options available. First, some cities and towns offer habitability inspections on vacant units. The inspections usually cost approximately $50.00 and are conducted by city or municipal agents. They are independent third parties who conduct a thorough inspection of the property and issue a Certificate of Compliance. These certificates are wonderful evidence of the fact that the premises where fit and habitable for human occupation and no violations existed at that time. It is important to note that these inspections may yield unfavorable results, including unknown structural problems. However, if a landlord is not willing to maintain the property in compliance with the laws then there will be severe consequences in the event the tenant litigates the matter. Lastly, the landlord should conduct their own regular inspections of the property annually. I understand that tenants don’t want their landlord snooping around their home however, ‘an ounce of prevention is worth a pound of cure.’ Have a contractor or home inspector go through the basement, electrical and plumbing. Specifically, the following are common areas of concern: sinks, toilets, boilers; shower areas; windows (open and close); smoke detectors; carbon monoxide levels; lock mechanisms; steps and railings; and, external doors.
5. KNOW YOUR TENANTS
This may seem obvious; however, many big problems can be avoided simply by knowing your tenants, their likes and dislikes, personalities and habits. A simple random act of kindness (birthday card, taking in the trash barrels, or a new mailbox) can go a long way. As humans, we are not always perfect. However, the relationships you establish will dictate the behavior you receive in return. In the event you have to experience the eviction of a tenant and things become ugly, the basis of the relationship may be a factor in trying to mediate a resolution. And, maybe even the forgiveness of some technical landlord violations. A random knock on the door for something other than rent may reveal some interesting facts. I have personally observed everything from illegal contraband on a kitchen table to arguments which became less than civil. I’m not suggesting that every landlord compile a ‘Howard Hughes’ type file on each tenant, but simply that the landlord know something more than just the names on the check.
Jonathan J. Moriarty, Esq.
Law Office of Jonathan J. Moriarty
53 S. Main Street, Suite 3
Randolph, MA 02368
Telephone: (781) 961-2200
