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Real Estate: Rights and Duties of Landlords and Tenants
If an owner of a house or apartment rents that house or apartment to another, the parties enter into a legal relationship as a landlord and tenant. The owner of the property is referred to as the landlord, the renter as the tenant.
1. CREATION OF THE TENANCY
A tenancy may be created by oral agreement or through a written lease. There are two sorts of tenancies: tenancy-at-will and fixed term tenancy. If the landlord and tenant enter into a tenancy-at-will agreement, either party may terminate the agreement with or without reason as long as they give the other party proper notice. Tenancies at will can be oral or written. Usually notice to terminate a tenancy under this sort of agreement must be given either thirty days prior to termination of the tenancy or one full rental period before the tenancy is terminated.
2. TYPES OF LEASES
A fixed term lease binds both landlord and tenant to an agreement to lease a property for a particular period of time. Usually such an agreement would be in writing and would require both the landlord's and tenant's signatures to be binding. A landlord or tenant cannot break such a lease unless the other party fails to perform their part of the contract. For instance, under certain circumstances, if the landlord fails to provide the tenant with a habitable apartment, then the tenant may be able to move out and break the lease. Similarly, if the tenant fails to pay their rent, the landlord may be able to commence a Summary Process (eviction) action against the tenant in Housing Court, District Court, or Superior Court to force the tenant to surrender their property. However, before either a landlord or a tenant considers breaking a lease, they should consult with legal counsel as there are serious legal implications surrounding breaching a lease agreement.
Many written leases are self-extending - that is, if a tenant fails to notify his landlord in a timely manner that he/she intends to move out by the expiration of the lease the lease will continue in force for another year. Tenants should carefully review any lease they sign for such an extension clause and make sure that they keep close track of any notice dates if they intend to terminate their tenancy at the end of their lease.
If the lease is for a fixed term, i.e., one year, and the tenant fails to vacate the premises on or before the expiration of the lease, the tenant becomes a tenant at sufferance.
3. TENANT'S RIGHTS
Tenants have certain rights regarding the condition and use of the apartment they rent:
- The apartment must be both safe and habitable. Standards of habitability in Massachusetts are defined in the state sanitary code. You can obtain a State Sanitary Code from the Statehouse Bookstore in Boston. In, addition, a tenant may request that the apartment be inspected for code violations by the local building department. If violations are found, the building inspector can order that the violations be corrected in a timely fashion.
- A landlord cannot transfer to the tenant the responsibility for keeping the apartment in compliance with the sanitary code. Any agreement by which a landlord attempts to do this would be unenforceable.
- The tenant has the right to enjoy the premises free from disturbance and interference by the landlord or other residents, also known as quiet enjoyment. The landlord cannot enter the apartment frequently, at odd times, or without giving reasonable notice except in an emergency situation.
- The landlord does have the right to inspect the premises and show the property to a prospective buyer or tenant, but the tenant must be provided with reasonable notice (usually 24-48 hours) and the inspection must be conducted at a reasonable time. Also, the landlord has the right to enter the apartment to do normal maintenance and repairs as long as reasonable notice is given.
However, if the repairs are of an emergency nature, the landlord may be able to enter without notice.
The tenant must allow the landlord reasonable access to premises for the purpose of inspecting, showing or conducting repairs. Failure to allow access may be reason to evict the tenant.
4. LANDLORD'S RIGHTS
Landlords too, have certain rights regarding their properties, chief of which is the right to receive their rent from the tenant when due. Generally, a landlord is free to charge whatever rent he/she likes provided the tenant agrees to pay it. However, if a landlord participates in certain federal and state rent subsidy programs, the owner may be subject to rental limits that are established by the government. Before accepting a housing subsidy, landlords should contact the local housing authority for more information.
A landlord also has the right to have the property returned at the end of the tenancy in the same condition as it was in the beginning, reasonable wear and tear excepted. To insure that any damage done to the apartment can be repaired at the tenant's expense, the security deposit law allows the landlord to take a deposit typically equal to one month's rent, known as a security deposit.
5. SECURITY DEPOSITS AND LAST MONTH'S RENT
At the end of the tenancy, a landlord is permitted to deduct money from the security deposit for unpaid rent and the cost of repairing any damages to the apartment, beyond normal wear and tear. Furthermore, the tenant must be notified in writing of any deductions from the security deposit within thirty days of the end of the tenancy. If repairs are necessary to the apartment, itemized bills or estimates must be included with notice of any deductions to the tenant.
Also, if the landlord does take a security deposit from the tenant at the beginning of a tenancy, it must be kept in a separate interest bearing escrow account (free from creditors reach) and the interest on this account must be paid to the tenant yearly on the anniversary date of the tenancy. The rate of interest paid is that being paid by the bank where the account is located, with the maximum interest being 5%. Finally, the tenant must be informed in writing of the name and address of the bank, amount deposited, and the account number within thirty days of the beginning of the tenancy.
The law also requires that if the landlord takes a security deposit from a tenant, the landlord must provide the tenant with a statement of conditions of the apartment either when the tenancy begins or within ten days of the receipt of the deposit, whichever is later. The law allows the tenant to review this statement and amend it. Both the landlord and tenant should review this document carefully as it will be the basis for any deductions from a security deposit and could be evidence in any future legal dispute over damage to the apartment.
A landlord should be extremely careful when dealing with issues surrounding the escrowing of and deducting from a security deposit as the law mandates that a tenant be awarded triple damages for a number of violations of the security deposit law whether the premises was damaged or not. A landlord should consult with an attorney before taking a deposit or making deductions to insure compliance with the law.
A landlord is also permitted to request payment of both first and last month's rent at the beginning of a tenancy. As with security deposits, a landlord must pay interest on last month's rent on the anniversary of the tenancy.
6. AMOUNT OF RENT PAYMENTS
A landlord cannot request that the tenant pay more than the rent stated in the written lease. However, this does not mean that a tenant's rent will not increase during the lease term. If the lease contains a provision known as a tax escalator clause, a portion of any increase in the property taxes could be passed along to the tenant. Tenants should carefully examine any lease for a tax escalator clause before signing it as this provision can lead to a substantial increase in the rent should property taxes increase.
At the end of a lease term, the landlord may offer a tenant a new lease agreement with different terms and a higher rent.
In a tenancy at will, the rent may be raised by the landlord if proper written notice is given thirty (30) days or one full rental period prior to the effective date of the rent increase. In the rent increase notice, the landlord must terminate the tenant's old tenancy and offer a new tenancy at the higher rent.
While a tenant is free to reject the landlord's offer and continue paying the old rent, such action may be reason to evict the tenant.
7. EVICTION PROCEEDINGS
To commence a Summary Process action, a landlord must first serve the tenant with a notice to quit. In the case of non-payment of rent, a 14 day notice to quit is required. For other violations of the lease, the notice period will be specified in the lease. In most cases, it will be seven (7) days. The landlord must prove actual receipt of the notice by the tenant. Also, if the premises are rented through a federal or state subsidy program, the landlord may have to observe additional restrictions regarding an eviction set by these programs. For instance, a 30 day notice to quit for cause rather than a 7 day notice must be served on the tenant for breach of the lease.
The tenant does not have to move out at the expiration period of this notice. If the tenant does not, the matter must be brought before the appropriate court by initiating a Summary Process action. In any case, the landlord must serve the tenant with a copy of the Summary Process Summons and Complaint before the hearing is held. Landlords should be aware that there are strict time frames for service and filing of the Summons and Complaint.
A landlord can commence a Summary Process action for nonpayment of rent or cause, including but not limited to, damage to the premises, illegal activity, nuisance and unauthorized occupants or pets. In the case of a tenancy at will, a landlord can also commence an eviction action if the tenancy has been properly terminated and the tenant has still refused to move out. Remember, terminating a tenancy at will agreement can be done with or without reason.
The tenant has the opportunity to file an answer to the complaint up until the Monday before the actual hearing. The tenant can make counterclaims against the landlord in the answer to the complaint. Grounds for a counterclaim are numerous and include, but are not limited to, improper eviction procedure, sanitary code violations, harassment, and retaliation. Massachusetts law does protect a tenant from retaliation by a landlord if the tenant has exercised their legal rights against the landlord by reporting health code violations or organizing a tenant association. An attempt to change the terms of a tenancy, i.e. increasing rent or taking other legal action against the tenant would be considered retaliatory if it is begun within six months of the tenant exercising their legal rights against a landlord unless the landlord can convince the court that there are sufficient legal grounds to bring an action.
If you are going to be involved in an eviction action as either a landlord or a tenant, it is advisable to consult with legal counsel as soon as you suspect such an action may be necessary.
How to Get Help
If you need a lawyer and don't know how to find one, you may contact the Massachusetts Bar Association's Lawyer Referral Service. The number in Boston is (617) 654-0400 or TDD (617) 338-0585. Outside Boston you may call toll-free 1-800-392-6164. There is no charge to call the Lawyer Referral Service, and your first half-hour consultation with an LRS attorney is only $25.
The Massachusetts Bar Association also offers free help through its Dial-a-Lawyer call-in program. On the first Wednesday of each month, from 5:30 to 7:30 p.m., volunteer lawyers are available to answer your basic legal questions by phone. Dial-a-Lawyer may be reached at (617) 338-0610.Posted on Apr 27, 2000 |
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