Looking For & Choosing an Apartment

A Finder’s Fee (finder’s fee, registration fee or commission) for helping a tenant to find an apartment may only be charged by a licensed real estate broker or salesperson , and only after the broker or agent has signed a contract that states the fee amount and the tenant’s requirements for an apartment. The contract must also state that the broker or agent will provide a certain number of listings, which may not be less than five.

Tenant Discrimination. Federal law prohibits a landlord from refusing to rent any apartment to a potential tenant because of race or color.  State law prohibits a landlord from refusing to rent an apartment to a potential tenant because of dependence upon public or rental assistance.  Except in owner-occupied two-family dwellings, the Massachusetts Fair Housing Law prohibits discrimination on the grounds of religion, national origin, age, ancestry, military background or service, gender, sexual orientation, marital status, blindness, deafness, or the need of a guide dog.  With some exceptions, no landlord can refuse to rent an apartment because the tenant has children.  (In particular, a landlord cannot simply refuse to rent to a tenant with children in order to comply with the prohibition against exposing children to lead.)

Types of Tenancy

A Tenant With a Lease is a tenant who has signed a written agreement with a landlord to rent a dwelling for a particular amount of time, usually one year. During that year, the landlord cannot raise monthly rent, and the landlord will not be able to end tenancy unless the tenant fails to maintain the terms of the lease.

A Tenant-at-Will is a tenant who has not signed a lease, but who pays rent periodically (usually monthly). Although there is not always a written agreement in a tenancy-at-will, often the tenant is asked to sign a “Rental Agreement” or “Tenancy-at-Will” form. Such a form should include the amount of monthly rent at the time of the agreement and any additional basic rules for tenancy.
A tenant-at-will may end his tenancy for any reason as long as he gives his landlord notice that he is planning to leave, either thirty days or one month before the next rent payment due date, whichever is longer. Likewise, a landlord may end the tenancy for any reason as long as he gives his tenant notice that the tenant must leave either thirty days or one month before the next rent payment due date, whichever is longer.
The landlord can raise the rent of a tenant-at-will as long as he informs the tenant of the rent increase, either thirty days or one month before it takes effect, whichever is longer. If, however, the tenant receives a rent subsidy from the government, the landlord may not raise rent without governmental approval.

A Rooming or Boarding House Tenant becomes a tenant-at-will after three months of tenancy and is then afforded all the rights of a tenant-at-will.
Termination notices vary depending on the length of tenancy:
Less than 30 days – no notice required.
Between 30 and 90 days – 7 days notice required.
Over 90 days – 30 days notice required.
However, the landlord is only required to give 7 days notice if tenant is disorderly or bothersome to other tenants OR if tenant pays rent weekly.

The Lease or Rental Agreement

The Lease or Rental Agreement should include the name, address, and phone number of the owner and the person responsible for the apartment’s maintenance and repair; and the name, address, and phone number of the person to whom the tenant can give copies of formal notices, complaints, or court papers. If the tenant pays a security deposit, the lease or rental agreement must show the amount paid, and must explain the rights regarding security deposits (which we outline later in this chapter).

The lease or rental agreement cannot require the tenant to give up any legal rights in return for renting the apartment. In particular, the terms of the lease or rental agreement cannot prevent the tenant from suing the landlord, reporting violations of the Sanitary Code, or joining a tenants’ union.

A Copy of the Lease or Rental Agreement must be provided to the tenant by the landlord within 30 days of signing. A landlord who does not provide the lease within 30 days may be fined up to $300.

Types of Leases

•    Fixed-term lease: Typically runs for one year. May or may not be renewed after the period expires.
•    Self-extending lease: Automatically renews if neither the landlord nor tenant gives formal notice that there will be no renewal by a date specified in the lease.

Prepayments are often required by landlords before a tenant moves in. The following rules regulate prepayments that a landlord can charge on residential property that is being leased for more than 100 days.  Note that this law does not apply to property that is used for commercial reasons.
The only prepayments that a landlord may lawfully charge are :
1.     First Month’s Rent
2.     Last Month’s Rent – to protect the landlord from a tenant residing in the apartment for his last month and then “taking off” without paying rent. This covers the last month’s rent payment, and need not be paid again at the end of tenancy.
3.    Security Deposit – a deposit to a landlord no greater than one month’s rent, intended to ensure that conditions of the lease will be met and that the cost of damage to the apartment will be covered.
4.     Installation Costs for Lock & Key

The laws about last month’s rent and security deposits are the most detailed and complex, so let’s look more closely at these:

Last Month’s Rent

•    Last month’s rent is a prepayment for the last month of tenancy. A security deposit cannot be used as the last month’s rent and vice versa.
•    The amount of the last month’s rent cannot be greater than one month’s rent. If a landlord later raises the rent, he can require his tenant to increase the amount of the last month’s rent to equal the new rent.
•    A landlord is required to deposit the last month’s rent in a Massachusetts bank and must give his tenant a receipt for the deposit within 30 days.
•    A tenant is entitled to at most 5% interest (and at least the amount of interest given by the bank) on the last month’s rent, payable at each year on the anniversary date of tenancy. This interest is to accrue and be paid even if the tenancy lasts less than one year, and must be paid within 30 days of the termination of tenancy.
•    A landlord must transfer the last month’s rent with any interest accrued to the new landlord if ownership of the dwelling changes hands. This must be done within 45 days of ownership transfer.
•    If a landlord fails to pay interest on last month’s rent within 30 days after termination of tenancy or fails to transfer the last month’s rent with interest accrued to the new landlord within 45 days of the date of ownership transfer, the tenant is entitled to TREBLE (triple) DAMAGES plus court costs and reasonable attorney’s fees.

Security Deposit

•    The amount of the security deposit cannot be greater than one month’s rent. If the landlord later raises the rent, he can require the tenant to increase the amount of the security deposit to equal the new rent.
•    A landlord must give his tenant a statement of condition (including any certified violations of the Sanitary Code) of the premises upon receiving a security deposit or within 10 days of tenancy, whichever comes later. Once the tenant receives a statement of condition, he has 15 days to return a corrected copy to the landlord, after which time the landlord has 15 days to either sign agreement with the tenant’s corrected copy or state disagreement. If the tenant does not submit a separate or corrected list, a court may later view this lack of action as the tenant’s agreement that the list was complete and correct.
•    A landlord is required to deposit the security deposit in a Massachusetts bank and must give his tenant a receipt for the deposit within 30 days.
•    A tenant is entitled to at most 5% interest (and at least the amount of interest given by the bank) on the security deposit, payable at each year on the anniversary date of tenancy. If tenancy ends before one year, no interest is collected on the security deposit. The landlord must return the security deposit and accrued interest, less lawful deductions, within 30 days after termination of tenancy.
•    A landlord may lawfully deduct from the security deposit for rent unlawfully withheld and for damages caused by the tenant or any of the tenant’s guests or damages on the premise with the tenant’s consent (reasonable wear and tear attributed to normal use does not count).
•    To deduct from the security deposit for damages, a landlord must provide a detailed list of damages and estimates/bills for repair costs within 30 days after termination of tenancy.
•    A landlord must transfer the security deposit with any interest accrued to a new landlord if ownership of the dwelling changes hands. This must be done within 45 days of ownership transfer.
•    If the landlord…
- Uses a lease which attempts to influence the tenant to waive his security deposit rights,
- Fails to deposit the security deposit in a Massachusetts bank and provide a receipt from that bank within     30 days,
- Fails to make security deposit records available
- Fails to provide a list of damages within 30 days of termination if deductions are to be made
- Fails to return the security deposit (or balance after lawful deductions) with accrued interest within 30     days of termination
- Fails to transfer the security deposit to the new landlord within 45 days of the date of ownership transfer,
The tenant is entitled to TREBLE (triple) DAMAGES, plus court costs and reasonable attorney’s fees.

***PLEASE NOTE:
The above rules do not apply to a commercial lease. The MA government assumes that businesses are more well-protected that your average citizen. If you are renting space for business purposes, you are not entitled to treble damages for the above

During the Tenancy

Once a tenant moves in there are still certain laws that must be followed by both parties.

Late Payment Fees cannot be charged by a landlord until 30 days after the due date. These include late charges, interest, and other penalties.  However, a landlord can begin the eviction process on the first day the payment is late.

Utilities
The landlord may require tenants to pay their own electricity and gas bills, but this requirement should be written into the lease or rental agreement.  A landlord cannot cause the removal of or shut off utilities except for emergency repairs. If a utility company must shut off a tenant’s utilities because of a landlord’s inability to pay, the company must notify the tenant at least 30 days prior to shut off.  The tenant may be asked to pay part or all of the overdue bill to the utility and to deduct that payment from his rent.  Tenants seeking to have their utilities turned back on should call the Department of Telecommunications and Energy at 1-800-392-6066.

The Landlord’s Right of Entry Clause  allows a landlord to enter a tenant’s apartment only for the following reasons:
•    To inspect the premises.
•    To make repairs.
•    To show the apartment to a prospective tenant, purchaser, or mortgagee.
•    In accordance with a court order.
•    If the premises appear abandoned.
•    To determine amount of damage to be deducted from security deposit after notice to terminate has been given.

If a landlord continually enters a tenant’s premise unreasonably, tenant may file for a temporary restraining order.

Habitability Rights  are guaranteed to tenants by the State Sanitary Code. This code mandates that the following “habitability rights” be ensured by a landlord:
1)    Heat
2)    Removal of cockroaches and/or rodents
3)    Functioning Kitchens
4)    Functioning Bathrooms
5)    Hot Water
6)    Structural Integrity
7)    Snow Removal
8)    No Lead Paint (if there are children under the age of 6 living in the dwelling)

For more specific requirements, see the Code of Massachusetts Regulations, 105 CMR 410.

For information on obtaining copies of the State Sanitary Code regulations, please contact:
The State Bookstore
State House, Room 116
Boston, MA 02133
(617) 727-2834

Dealing with Habitability Rights Violations . If a tenant suspects that any of his “habitability rights” (see above) have been violated, the tenant should take the following steps:
1)    Explain the problems to the landlord and request repair.
2)    Have an inspection by the local health department and be prepared with a list of suspected violations. Make sure the inspector writes down all violations.
3)    If the inspector finds any violations, and the landlord refuses to repair any damages, the tenant may lawfully withhold rent or repair the damages himself and deduct the costs from future rental payments.

A tenant may not withhold rent if he was the cause of the problem, or if he was not current in his rent payments at the time of the problem. The tenant is still required to pay the fair rent for the apartment given its defective condition; so he may only be able to withhold a part of the rent, depending on the seriousness of the problem.  Although not required by law, the tenant is encouraged to deposit the withheld rent in an escrow account to show good faith.

A tenant may repair the damages himself and deduct the costs  from future rental payments only if:
•    The total deductions do not exceed four months’ rent.
•    The local Board of Health or other code enforcement agency has certified that the present conditions endanger the health or safety of tenants.
•    The landlord receives written notice of the existing violations from the inspecting agency.
•    The landlord is given 5 days from the date of notice to begin repairs or to contract for outside services and 14 days to substantially complete all necessary repairs.

Other Housing Regulations

Massachusetts State Plumbing Code: 248 CMR 2.00
Massachusetts State Fuel Gas Code: 248 CMR 4.00-8.00
Massachusetts State Electrical Code: 527 CMR 12.00
Massachusetts State Building Code: 780 CMR 1.00-22.00
Regulations for Lead Poisoning Prevention and Control: 105 CMR 460.00
Program for Air Testing and Remedial Measures for Residential Dwellings Insulated with Urea Formaldehyde Foam Insulation (UFFI) 105 CMR 651.00
Regulations for Removal, Containment or Encapsulation of Asbestos 453 CMR 6.00 and 310 CMR 7.00

Some Notes about Low-income Housing

Housing Law Section 8
Section 8 provides federal government assistance for very low-income families, the elderly, and the disabled to afford decent housing. It is the participant’s responsibility to find housing including single-family homes, townhouses and apartments. Local public housing agencies (PHAs) use U.S. Department of Housing and Urban Development (HUD) funds to make direct payment to landlords. The person on section 8 subsidy pays the difference between the actual rent charged by the landlord and the amount subsidized by the program.
Eligibility for the Section 8 assistance is determined by gross income and family size and is limited to U.S. citizens or non-citizens with specific immigration status. Once eligibility is determined, the participant is placed on a waiting list. The Boston Rental assistance Section 8 waiting list is currently closed. However, assistance is available for:
-    Wheelchair accessible housing (open to anyone requiring wheelchair accessibility)
-    Family public housing (open to anyone)
-    Elderly/disabled public housing (open to those age 60 or over and/or disabled)
-    Grandparents housing program (open to those age 60 and over and/or disabled with legal custody of 1 or 2 grandchildren of the same gender)
*MGL makes is unlawful for landlords to discriminate against an individual who is the recipient of low-income housing.

Roommates & Subletting

In many cases, tenants will share an apartment with another person. While this may help with loneliness and affordability, it also opens the door to a host of problems. It is important for a tenant to understand the legal relationship that exists between he and his roommate, and must know what to do when one of them does not hold up his end of the bargain.

There are two possible legal relationships that can exist between roommates who share a rented/leased apartment:

Co-tenants: Both roommates have their names/signatures on the lease issued by the landlord, and the landlord has accepted the presence of both in his dwelling. In this case, joint and several liability exists, which means that the two tenants are considered to be “one unit” by the landlord. In cases of “joint and several liability”, the landlord can look to either tenant for resolution, should a problem arise. For example, if one co-tenant fails to pay rent one month, the landlord can hold the other roommate responsible for the delinquent tenant’s portion. And if one roommate breaks a condition of the lease or rental agreement, the landlord may evict both tenants for the infraction. A co-tenant may not evict another co-tenant – this right is only granted to the landlord. For these reasons, it is crucial that those entering into a lease as co-tenants trust each other greatly, as “even innocent co-tenants will suffer the consequences of one co-tenant’s misdeeds.”

Tenant/Subletter: In this situation, the original tenant is the only individual whose name/signature is on the landlord’s lease. The subletter has no direct relationship to the original landlord, but instead has signed a contract with the original tenant to follow certain guidelines and pay a designated amount towards rent, utilities, etc. This means that the original tenant has a degree of control over his “roommate” (the subletter) and, should problems arise, has the power to evict the roommate hisself. The primary drawback of this otherwise-superior option is that many landlords do not allow tenants to accept subletters (as it prevents the landlord from holding both responsible for late rent, etc.). If this is the case, a tenant who takes in a subletter is in violation of his contract and may be evicted.

Other: If neither of these legal relationships exists between two roommates (not an unusual scenario, especially when the two individuals were friends prior to being roommates or were involved romantically when the cohabitation began!), then a dissatisfied roommate has little or no legal recourse available to him/her. Entering into such a roommate situation is usually unadvisable.

Renting With Roommates is complicated. Although many of our clients will call AFTER there has already been a roommate conflict regarding failure to pay rent, utilities, or other expenses, a few pointers for the NEW tenant who is going to be living with a roommate:
•     Before beginning a co-tenant relationship, be sure to create a roommate agreement. This agreement can be written by the co-tenants, and should spell out exactly what each roommate is responsible for, including shares of rent, housework, utilities, etc. It should also specify what amenities (e.g. food, cable TV, internet provider) will be shared and which will be provided for individually. Additionally, it can discuss other issues such as guests, noise, and how disagreements will be resolved. Although this contract is not an official legal document, it can be critical (and very helpful!) evidence should a violation occur and the case be brought to small claims court.
•      Keep very careful records of all documents relating to the lease or rental agreement, including a copy of the signed agreement, rent payment receipts, repair records, correspondence between co-tenants and the landlord, etc.
•     Think twice about rooming with someone you don’t trust or sense is irresponsible. Although “cheated roommates” have some recourse in small claims court, often the hassle and expense of pursuing such action is greater than any amount a roommate could hope to receive as a result.

Termination and Eviction

There are two ways in which a tenancy can end:

Termination – the ending of a rental agreement or lease by either the landlord or the tenant.

Eviction – the forced removal of a tenant. Eviction can only be ordered by a judge.

While termination is a regular part of any landlord/tenant relationship (eventually the tenant moves to a new dwelling), eviction is much more serious, as it may leave a tenant with nowhere to live. For this reason, Massachusetts law places strict guidelines on eviction.

Valid Reasons for Eviction vary depending on the type of tenancy:

Tenant With a Lease – a landlord can only attempt to evict a tenant with a lease if the tenant has (1) not been paying rent, (2) has caused excessive damage to the dwelling, or (3) has violated the terms of the lease.

Tenant-at-Will – a landlord may attempt to evict a tenant-at-will for any reason, except as an act of retaliation (see below). A landlord is not required to provide a tenant-at-will with any reason for termination of tenancy; however, the landlord must still follow proper eviction procedures.

Retaliation – Although the landlord of a tenant-at-will can terminate the tenancy without reason, the landlord cannot do so in response to the tenant’s exercising of legal rights. If a landlord attempts to change or terminate a tenancy or increase rent within six months of a tenant’s contacting the Board of Health, joining a tenants’ organization, or exercising other legal rights, the landlord’s actions can be considered retaliation against the tenant. Unless the landlord can prove that s/he is changing the tenancy for reasons other than your having exercised your rights, the landlord will not be able to raise the rent, change or terminate the tenancy. Penalties for violation of this law against retaliation include fines of up to three months’ rent, actual damages sustained by the tenant, and costs of the tenant’s suit against the landlord, including attorney’s fees.

The Eviction Process has several steps:
Notice to Quit – filing a Notice to Quit is the first step a landlord must take to commence eviction procedures. This Notice comes with a built-in time period (usually 14 days) during which the tenant can fulfill his obligations. If the tenant fails to do so, however, he does not have to move out at the end of this time period. Only a judge can order a tenant to move out.
Summary Process and Complaint – after notice period has passed, a Summary Process and Complaint is delivered to the tenant by the landlord, which officially informs the tenant that the landlord is taking legal action. The Complaint will state the date of the eviction hearing and the date on which the Answer must be filed. The Answer is the tenant’s response stating why he should not be evicted. The Answer also gives the tenant the opportunity to make counterclaims against the landlord, including, for example, health code violations, retaliation, harassment, security deposit violations, or improper eviction procedure.

The Eviction Hearing – takes place on the date indicated by the Summary Process and Complaint.

Notice of Appeal – if, at the hearing, the judge orders eviction, the tenant may file a Notice of Appeal. This must be done within 10 days after the judgment date!

Execution – if the judge concludes that the tenant should be evicted, he will issue an execution, which is an eviction order. This execution paper will be given to the landlord 10 days after the judgment is entered, and is a mandatory part of the eviction process (i.e. a landlord cannot evict a tenant without it). The execution is good for 3 months so if the landlord allows the tenant to stay on the property, he/she can later use the execution at any time within the three months. However, if within the three months the landlord accepts payment of the amount won in the summary process action and the current rent, he/she cannot use the execution.

48 Hour Notice – at least 48 hours before the execution is served, the tenant must be given a written notice of the date and time when s/he will be physically removed.

Landlords of public housing and rent control tenants must first go through the local housing authority and rent control board, respectively, before the landlord can proceed with the eviction. Public housing and rent control tenants have the right to a hearing in front of the appropriate board on their eviction.

Eviction – When the date written on the execution order arrives, the tenant must move out. If you do not, a sheriff or constable may remove your belongings and place them in storage if you are not there at the time of removal to claim them.

Stay of Execution – if the eviction is not the tenant’s fault or the tenant cannot find another place to live, the tenant may be able to receive a Stay of Execution, allowing the tenant to stay in his apartment for up to 6 months. Elderly or handicapped tenants can request a stay of up to one year.

Housing Court

Housing court deals with all legal matters related to habitation, including landlord/tenant problems. It is not bound by the 2,000 cap that applies to Small Claims cases.  The housing court will apply the same laws as Small Claims, and follow the procedures outlined in this chapter five of the manual.

A description of the procedures used by the housing court can be found at its website under the FAQ section: www.mass.gov/courts/courtasandjudges/courts/housingcourt/

Jurisdiction: Housing Court has concurrent jurisdiction with Small Claims Court. This means that a suit related to housing and falling under the $2,000 limit can be filed in either Housing or Small Claims Court.  Small Claims decisions can be appealed in Housing Court, with the restrictions discussed in Chapter 3 of the manual.