Signing a lease is an important part of the landlord/tenant process. A leases spells out the terms of the landlord/tenant relationship, namely the amount of rent and how long the lease will last. Most landlords use a standard form lease that is pre-written, and only requires the landlord to fill in the blanks (The Greater Boston Real Estate Board has a form lease that is popular for landlords in the Boston area). Form leases are extremely helpful in drafting a lease; there is no need to “recreate the wheel” in preparing a new agreement when a model lease is available.
However, when using a sample lease, landlords should note that there are important things to include in a lease, many of which are not found in these sample drafts. Here are a few important things that I think every lease should include:
Payment of Utilities: Massachusetts law requires landlords to provide all utilities to tenants, but allows landlords to “transfer” the payment of these utilities . . . in writing. Failure to include, in writing, a requirement that the tenant pay these utilities can be a major problem for a landlord. As such, a statement that the tenant must pay for utilities is one of the most important things to include in a lease.
No Security Deposit: The Massachusetts Security Deposit Law is a pro-tenant law that has many traps for landlords. As such, I (and most other attorneys) advise landlords not to accept security deposits. If you follow this wise advice, include a term in the lease that the landlord isn’t accepting a security deposit from the tenant. This helps prevent a claim for a tenant, down the road, that such a deposit was taken by the landlord, setting up a potential problem at the end of the lease.
Description of the Property: If the rental property is something that is unambiguous (such as an apartment), this might not be necessary. However, if there is any chance that the scope of the rental property may be misconstrued, it is worth including a description of what is, and what isn’t, included in the lease. Use of the backyard, driveway, and other common areas are all important things that should be mentioned in the lease.
Allowance of Guests: The difference between a guest v. a permanent tenant is not always clear. While a tenant generally has a right to have guests at the rental property, only those persons stated on the lease are allowed to live in the property. To keep the difference between a guest and tenant clear, consider a term about how long guests are allowed at the property. This can be helpful if, down the road, the tenant allows others to move into the rental property.
No Smoking: If you do not want your tenants to smoke in the rental property, be sure to include it as part of the lease agreement.
By no means is this a comprehensive list of everything that should be included in a lease; this will depend on your particular circumstances. For help in drafting a lease, contact me for a consultation.
Ask a room full of lawyers a legal question, and you will likely get a handful of different responses. I would bet, however, that there is a major exception to this on the question of whether a landlord should accept a security deposit from tenants in Massachusetts. On that question, Massachusetts landlord attorneys (including your’s truly) would likely uniformly answer no. A Massachusetts landlord should never accept a security deposit from a tenant.
Why? The Massachusetts Security Deposit Law is one of the most complex and detailed consumer laws on the books in Massachusetts. Few lawyers and judges understand the detailed requirements of this law, and I imagine even fewer landlords actually comply with every part of it. The Massachusetts Security Deposit Law has lengthy provisions for accepting, holding, and returning a deposit, making the acceptance of a security deposit a huge hassle for landlords.
The danger for landlords under the Massachusetts Security Deposit Law are the penalties associated with a landlord’s failure to comply with this law. Several specific violations will result in a tenant being entitled to treble damages (three times the tenant’s security deposit), costs, and attorney fees. This means, for example, that a violation of a tenant’s $500 security deposit can result in over $2,000 of damages, if the security deposit is not handled correctly. If the tenant is represented by an attorney, expect these damages to be even higher.
An even greater danger to landlords is the use of the Massachusetts Security Deposit Law as a defense to a eviction case. A recent Supreme Judicial Court decision has held that violation of this law not only entitles a tenant to monetary damages, but also serves as a defense to an eviction. In other words, if a landlord fails to comply with the Massachusetts Security Deposit Law, he or she likely will not be able to evict a tenant, and may face a huge penalty from the court.
What can a landlord do to avoid the Massachusetts Security Deposit Law but still get some security from their tenants? Plan accordingly by incorporating a “security deposit” into your monthly rent. For example, say you wish to rent an apartment for $1000/month, and want a security deposit. Instead of renting for $1000/month, add $80-$100 more to the rent ($1000/12 months = $83.33) , and set that money aside. If, at the end of the lease, there is damage in the apartment, you’ll have the funds to deal with it, without the burdens of the Massachusetts Security Deposit Law. Even better, if there are no damages in the rental property, you’ll have some extra cash at the end of the tenancy.
If you’re a landlord and think you have violated the Massachusetts Security Deposit Law, don’t despair: it may be possible to remedy the situation by returning the deposit or reaching a resolution with the tenant. To do so, contact an experienced landlord/tenant attorney as soon as possible.
The Massachusetts Landlord Tenant Blog is proud to have Attorney Joseph N. Schneiderman guest blog on the Massachusetts Supreme Judicial Court’s recent Meikle v. Nurse decision, an appeal involving the important issue of defenses in Massachusetts eviction cases. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at firstname.lastname@example.org.
Supreme Judicial Court:
Violation of the Security Deposit Statute is A Defense to Possession In An Eviction Case
On April 27, in Meikle v. Nurse, Slip Op., SJC-11859, 474 Mass.—, the Supreme Judicial Court held that a residential tenant could assert a violation of the security deposit statute (G.L. c.186, §15B) as a defense to possession in a summary process action (a copy of the decision is posted below).
In October 2011, Ms. Nurse executed a one-year lease to live in a residence Mr. Meikle owned and paid a $1,300 security deposit equivalent to one month’s rent. Although Mr. Meikle acknowledged receipt of the deposit, he neither informed Ms. Nurse where he deposited the lease-nor paid her interest. Ms. Nurse lived there until April 2014, when Mr. Meikle commenced the instant summary process action. Ms. Nurse counterclaimed on multiple grounds, including a violation of the security deposit statute.
A Judge in the Boston Housing Court held for Ms. Nurse on her security deposit claim because Mr. Meikle failed to provide proper receipts and interest. However, in conflict with at least three past Housing Court rulings, the Judge ruled that the violation would only offset the unpaid rent and was no defense to possession. Ms. Nurse appealed and the Supreme Judicial Court took the case directly on their own motion.
Writing for the Court, Justice Geraldine S. Hines distilled the case to the interplay of G.L. c.186, §15B and G.L. c.239, §8A, establishing defenses to eviction. The Court applied two established interpretive principles to resolve this issue. First, the Court interprets statutes to effectuate the intent of the Legislature based on the language of the statute and its purpose. Plain and unambiguous language in a statute was “conclusive of the intent of the Legislature.” Second, the Court interprets remedial statutes broadly to best effectuate their purposes.
Against this backdrop, the Court noted that the fifth paragraph of Section 8A provided that “a tenant may retain possession if: (1) the tenant prevails on a counterclaim or defense brought “under this section; and (2) the damages on that defense or counterclaim exceed the amount due the landlord, the tenant pays to the court the amount due within one week.” Construed harmoniously, the phrase “under this section” referred back to the first paragraph of Section 8A to assert a defense or counterclaim “arising out of such property, rental, tenancy…occupancy of breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.”
The Court held that violation of the security deposit statute “fits squarely within this framework [as relating to or arising] out of the tenancy” and its violation was one “of any other law.” The Court emphasized that security deposits were a “prerequisite to most residential tenancies” the security deposit statute was “part of an elaborate scheme of rights and duties to prevent abuses and to insure fairness to the tenant.” Moreover, a contrary interpretation would frustrate both statutes, especially the historic expansion of Section 8A leading to the language “violation of any other law” in 1977. Finally, Mr. Meilke was not without a remedy. If he ameliorated the security deposit violation, he could later bring a new summary process action-even if Ms. Nurse paid the amount due.
The Court’s decision reflects a thoughtful balance. First, the Court broadly effectuates two remedial statutes as a harmonious whole to protect residential tenants. Security deposits are a sine-qua-non of residential tenancies and the Legislature enacted a broad constellation of rights to protect tenants. Holding that a security deposit violation was not “a violation of any other law” ignored two lessons of history: the expansion of defenses to tenants and robust protection of security deposits.
At the same time, the Court establishes a key limit for future cases by interpreting “any other law” to invariably correlate to the landlord tenant relationship. Future tenants will therefore need to make this showing to have a defense to possession. Landlords also may remedy their violation and bring a new summary process action; indeed, “the Legislature’s [was to provide…] a time limited equitable remedy.” The open question thus potentially becomes how long a tenant may retain possession for a security deposit violation-or, conversely, how long a landlord has to remedy a security deposit violation before commencing a new summary process action. Hopefully, despite the summary nature of summary process, the SJC will address these issues again strike a balance.
Joseph N. Schneiderman has an appellate practice “on circuit” in Massachusetts and Connecticut, and argued his first civil appeal in the SJC on March 10. See Goodwin v. Lee Public Schools, SJC-11977. Joe gratefully thanks Adam for the opportunity to guest blog (again)!
The Massachusetts Landlord Tenant Blog is proud to have Attorney Joseph N. Schneiderman guest blog on the Massachusetts Appeals Court’s recent Clark v. Leisure Woods Estates, Inc. decision, an appeal involving the important issue of damages in landlord tenant cases. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe
Appeals Court Partially Affirms and Vacates Damages To Tenants At Manufactured Housing Community in Orange
On February 23, 2016, the Massachusetts Appeals Court decided Clark v. Leisure Woods Estates, Inc., 89 Mass. App. Ct. 87 (2016). (full copy of the decision is below). Justice Gregory Massing wrote for a unanimous Court and held that a Housing Court judge properly awarded treble damages under G.L. c.93A for breaches of the covenant of quiet enjoyment but erroneously awarded each household two triple rent awards under G.L. c.186, §14.
Leisure Woods Estates is a large manufactured housing community in Orange, Franklin County, home mainly to senior citizens. Id. at 88. Residents own their own units but pay a monthly rental fee for the lots. Id. Twenty-two residents sued Leisure Woods in the Western Housing Court over conditions there and a three-day bench trial followed. Id. at 89. On the last day, Leisure Woods’ president, Glenn Gidley, was set to testify but did not arrive at court until plaintiff’s counsel began her summation. The judge refused to reopen evidence to permit Gidley’s testimony. Id. at 95.
The judge found that Leisure Woods committed “three distinct violations” of the convent of quiet enjoyment codified in Section 14. First, since 2007, Leisure Woods blocked access to common walking trails, which had been their selling point. Second, Leisure Woods permitted retaining walls to collapse, walkways to deterioriate, and flooding, which were particularly aggravating to Leisure Woods’ aged population. Third and finally, Leisure Woods “chronically failed” to clear snow and ice, causing potholes and impassable roads. Id. at 89. Leisure Woods appealed, asserting that (1) the Housing Court judge erred in determining damages and (2) in barring Gidley’s testimony.
The Appeals Court recalled that “an injury party may recover damages for claims or injuries that are ‘factually separable and distinguishable [but not] multiple awards for the same injury based on different theories.” 89 Mass. App. Ct. at 90-91. Section 14 permitted a tenant to recover either “actual and consequential damages [of] all reasonably foreseeable [personal and economic] losses”, or, three months rent, if the tenant could not calculate actual damages. Id. Against this backdrop, the plaintiffs had not received “repeated [or otherwise duplicative] damages for each rental period, but rather one triple rent award for each of two factually distinct breaches.” Id. at 92.
However, the Appeals Court held that “only one triple rent award is available in a single proceeding under §14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.” Id. at 92-93, citing Simon v. Solomon, 385 Mass. 91, 112-113 (1982). Since the plaintiffs could not prove actual damages, only one triple award was proper-unless Leisure Woods continued to violate Section 14. Id. at 93, n.6.
Turning next to c.93A, the trial judge had found that Leisure Woods willfully and knowingly failed to repair extensive pot holes and permitted snow and ice to accumulate. 89 Mass. App. Ct. at 89. Leisure Woods contended that natural snow accumulation in and of itself could not constitute a defect. Although the Appeals Court noted that this specific position was of dubious merit in light of recent caselaw, the Appeals Court instead concluded that Leisure Woods’ conduct violated the Attorney General’s regulations on manufactured housing requiring maintenance of community roadways promulgated pursuant to c.93A. Id. at 93, and n.7. Because the regulations required removal of snow and pothole repair, “overwhelming evidence” of damaged roads caused by these conditions made the treble damages award appropriate. Id. at 94.
Finally, the judge did not abuse his discretion in refusing to permit Gidley to testify. The defendants had multiple opportunities to bring Gidley to court timely that they missed, despite the judge calling a recess and tending to other matters. Because Gidley did not arrive until summations, the judge correctly precluded his belated testimony because it would likely prejudice the plaintiffs. Id. at 95-96.
Two open issues emerge from this case. First, although a landlord may commit multiple breaches of the covenant of quiet enjoyment, only one default award of triple rent is available under Section 14, unless the breach survives the initial suit-or actual damages can be calculated. 89 Mass. App. Ct. at. 93, n.6. Although this rule will avoid duplicative damage awards, it does not appear to incentivize the landlord to remedy the breach-and may undervalue a tenant’s damages, frustrating the purpose of Section 14.
Second, does negligent snow accumulation in and of itself breach the covenant of quiet enjoyment? As the Court noted, the law of premises liability no longer distinguishes between natural and unnatural snow accumulation. 89 Mass. App. Ct. at 93, n.7, citing Papadopoulos v. Target Corporation, 457 Mass. 368 (2010). In light of that case and the attendant hazards of snow accumulation to tenants and visitors from snow accumulation, such accumulation should constitute a freestanding breach of the covenant of quiet enjoyment. Papadopoulos, 457 Mass. at 382-384. Given the severe winters of 2014-2015, landlords should take care to clear snow or risk a litany of litigation.
Joseph N. Schneiderman has an appellate practice “on circuit” in Massachusetts and Connecticut. Joe gratefully thanks Adam for the opportunity to guest blog!
A common problem for landlords is abandoned tenant property. When a tenant leaves an apartment, what should the landlord do about any property left behind?
If the landlord is certain that the tenant has completely moved out of the apartment, the problem is easy to solve. A landlord should first contact the tenant and see if they want the property. If the landlord can’t get an answer from the tenant, the landlord should store the property for as long as they can. I recommend that landlords wait a minimum of sixty days before discarding any left behind possessions. Landlords should take pictures of abandoned tenant property and contact the tenant in writing.
If it isn’t clear whether the tenant has moved out of the apartment, discarding abandoned tenant property becomes tricky. Landlords need to avoid the worst possible mistake a landlord can make: self-help (where a landlord attempts to evict a tenant outside of the law). In other words, landlords need to be sure that the tenant has left the apartment before discarding abandoned tenant property. Common sense is the best test for this: if the tenant hasn’t been back to the property in months, has taken most of their items with them, and has made no contact with the landlord, it is likely the tenant has left the apartment for good.
However, if the landlord has any doubt about this, the landlord should proceed with caution. The safest approach is an eviction proceeding against the tenant. In most cases, the tenant will never show up to court, allowing the landlord to get a default judgment (an automatic win). An eviction isn’t a quick process; even if uncontested, an eviction will likely take up to two months. However, if it is possible for a tenant to ever claim that they never left the apartment, this extra time may be well worth it for the landlord.
If you are a landlord with a case of abandoned tenant property, contact me for a consultation.
Raising rent is always a contentious issue among Massachusetts landlords and tenants. I often get asked, are raises in rent allowed? The answer depends upon the rental agreement between the parties: whether there is a lease or tenancy-at-will.
A lease is where the landlord and tenant contract for the rental of property, most often in one year terms. With a lease, the rent is fixed, and unless the lease says otherwise, raises in rent are not allowed. Some leases have provisions that apply to raises in rent if the lease continues beyond its original terms, so landlords and tenants should read these agreements carefully.
A tenancy-at-will is an ongoing, indefinite rental agreement, which either party can break at any time (with proper notice to the other side). Here, raises in rent are allowed: the landlord must provide the tenant with at least thirty days notice (and more if the rental period is longer than the standard month that these types of rental agreements usually go for).
For subsidized housing (such as the federal government’s Section 8 program), special rules often apply for raises in rent. Landlords and tenants should carefully check on the terms of these leases and applicable laws and regulations.
Raises in rent are not allowed as a form of “retaliation” against a tenant for reporting bad conditions about the property. Landlords who raise rent solely for this purpose face stiff legal penalties. The same is true if the raise in rent is due to discrimination based on a protected class, such as race or ethnicity.
To avoid potential problems down the road, landlords who want to raise rent should reach out to their tenants in advance and discuss the need for these increases.
Question: Does a landlord have a right to inspect a tenant’s apartment?
Answer: Yes. A landlord has the right to enter an apartment for the purpose of an inspection. No specific notice for such an inspection is required, but a landlord must give “reasonable notice.” I recommend that landlords always provide at least one days notice before such an inspection.
A landlord almost certainty has the right to designate an agent to do this inspection in his or her place: a landlord can likely ask a property management service, real estate broker, or attorney to perform an inspection for them. A good argument could be made by a tenant that there are limits to this: a landlord probably could not allow any random person to enter the apartment on the landlord’s behalf.
Implicit with this right to inspect is a proper time and place for doing so: for example, a landlord who tries to do an inspection in the middle of the night (without a good reason for doing so) would likely be disfavored by the court. Similarly, a landlord’s repeated request to inspect an apartment could be seen as harassment, and proper grounds for a tenant’s objection.
If you are a landlord or tenant in need of assistance with this matter, contact me for a consultation.