Executive Office of Consumer Affairs One Ashburton Place
Jane Swift, Acting Governor
M.G.L. = Massachusetts General Laws;
This pamphlet contains only a summary of your rights as a tenant.
FINDING AN APARTMENT
Finder's Fee: A fee for the purpose of finding an apartment (finder's fee, registration fee or commission) may be collected by a licensed real estate broker or salesperson only. The fee's purpose, the amount and the date due should be disclosed to the prospective tenant prior to any transaction. The amount of the fee is a contractual agreement between the licensed broker or salesperson and the prospective tenant. There is no set amount. (M.G.L., c. 112 $87 DDD-1/2) Note: At the beginning of a tenancy, a landlord is limited to collecting first and last month's rent, one month's security deposit and key deposit (M.G.L., c. 186, $15B).This may imply that a landlord cannot collect a finder's fee for his/her own apartment.
Right Against Unlawful Discrimination: Under federal law, it is unlawful to refuse rental of any apartment because of race or color (42 USC $1982). Under state law, it is also unlawful to refuse rental of any apartment because of dependence upon public or rental assistance. Except in owner-occupied 2-family dwellings, the Massachusetts Fair Housing Law also prohibits discrimination against any person because of religion, national origin, age, ancestry, military background or service, sex, marital status, blindness, deafness, or the need of a guide dog (M.G.L. c. 151B sec 4). It is also generally unlawful to refuse to rent to adults with children, but there are exceptions to this rule.
This is only a summary of your rights; there may be other rules and exceptions. For more information, contact the Massachusetts Commission Against Discrimination and/or the Fair Housing Office in your community.
TYPES OF TENANCY
A Tenant with a Lease is one who signs a lease to rent a particular apartment for a specified time period. A lease, or rental contract between the landlord (lessor)and the tenant (lessee), is a written document which legally binds both parties. The tenant is obligated to pay a stated rent at a given interval, usually monthly, in return for a safe and habitable apartment.
A Tenant-at-Will is one who occupies a rented premises without a lease but pays rent periodically (typically monthly). The agreement for the Tenancy-at-Will may be either written or verbal. Either the landlord or tenant may terminate this arrangement by giving written notice 30 days or one full rental period in advance, whichever is longer. No reason is required to terminate. If rent is paid the first of each month, notice should be given prior to the first day of the month. However, either the landlord or the tenant may be able to give notice as late as the first day of the month itself. For extra protection send the notice both by certified mail, return receipt-requested, and by regular mail.
A Rooming or Boarding House Tenancy is different from the two other types of tenancies. Termination notices vary depending on the length of tenancy:
(*Exception: The landlord is only required to give a 7-day notice if tenant is disorderly or bothersome to other tenants OR if tenant pays weekly.)
After three months of tenancy, the rooming house tenant is considered a tenant-at-will and afforded all rights of a tenant-at-will.
Rent Increases: If an apartment is either rent controlled or publicly subsidized, the landlord cannot increase the rent without receiving prior approval of the local Rent Control Board or the proper housing authority, respectively. Rent for a Tenant with a Lease can be increased only when the lease term expires. Rent for a Tenant-at-Will can be raised only when both parties agree to the increase. However, if you do not agree to it, the landlord can have you evicted. If your landlord wants to raise your rent, s/he must send you proper legal notice terminating your current tenancy. This notice may contain an offer to remain in the apartment for the increased rent. You must receive this notice at least one full rental period, but not less than 30 days, before it becomes effective. The rental increase may be any amount the landlord wishes to charge, and s/he may increase the rent as often as s/he wishes, provided that proper notice is given each time the rent is increased.
Note: Some cities or towns (e.g., Boston) allow rental increase limited to the increase in the Consumer Price Index for elderly, handicapped and low/moderate income tenants. Check with your local housing authority or rent control board to see if this applies to your city or town.
Rights Against Retaliation: Although the landlord of a Tenant-at-Will can terminate the tenancy or raise the rent without reason, s/he cannot do so in response to the tenant's exercising his or her legal rights. If the landlord tries to raise your rent, terminate or otherwise change your tenancy within six months of when you contact the Board of Health, join a tenants' organization, or exercise other legal rights, the landlord's action will be considered retaliation against you. 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. While the law does offer this protection, be aware that the landlord may attempt to retaliate against you.
Late Payment Penalty: Tenants should pay rent on time. The landlord can't charge any interest or a penalty until 30 days after the due date. However, the landlord can begin the eviction process immediately - even if the rent is only one day overdue. (M.G.L., c. 186,sec 15B). The landlord also cannot use a reverse penalty clause to encourage tenants to pay early. For example, it is illegal for a landlord who charges $400 per month to reduce the rent by 10% if the rent is paid within the first five days of the month.
Termination vs. Eviction: Termination is different from eviction. Termination is the ending of your rental agreement or lease. Either the landlord or tenant can initiate the termination of the tenancy. Eviction is the forced removal of a tenant from an apartment after termination. Eviction can only be ordered by a judge. The landlord cannot lock you out or throw you out of your apartment. (See section on Eviction)
Before Agreeing to Tenancy (or Signing a Lease) . . .
Written Rental Agreements: According to state consumer protection regulations (940 CMR 3.17(3b)), a landlord must include the following in a written rental agreement:
Verbal Rental Agreements: You and the landlord may agree verbally to the terms of your tenancy. However, it is safer to get all terms in writing.
Lease: A lease is merely a contract form which has been adapted for use by an individual landlord. The lease should clarify the rights and responsibilities of both the tenant and the landlord. ALWAYS READ YOUR LEASE BEFORE SIGNING. If wording is unclear, ask for an explanation. Within 30 days after the lease is signed, the landlord is required to furnish you with a copy for your records. If the landlord does not give you a copy within the allotted 30 days, s/he can be fined up to $300. Any provision which conflicts with the law or requires you, as a tenant or prospective tenant, to waive your rights is void and unenforceable (M.G.L., c. 186, sec. 15B).
Types of Leases: A standard fixed-term lease typically runs for a 12-month period and may or may not be renewed after the period expires. A self-extending lease is one which automatically renews itself if neither the landlord nor the tenant gives formal notice that there will be no renewal by the date specified in the lease.
Remember . . .
Pre-payments: Pre-payments, or money to which the landlord is entitled before you move in, are limited by law(M.G.L, c. 186, sec 15B) as follows:
Security Deposit and Last Month's Rent
A security deposit and the last month's rent are not the same thing, nor are they interchangeable. Last month's rent is the pre-payment to the landlord for the last month of tenancy. A security deposit is a deposit of money to the landlord to ensure that rent will be paid and other responsibilities of the lease performed (e.g., paying for damage caused by the tenant). The amount of the last month's rent and of the security deposit each cannot be greater than one month's rent. If the landlord later raises the rent, s/he can require you to increase both the amount of the last month's rent and the amount of the security deposit to equal the new rent. A landlord cannot transfer one for the use of the other without the tenant's consent. Likewise, the tenant may not use the security deposit as the last month's rent.
If last month's rent is collected, the landlord must also give you a statement indicating that you are entitled to either 5% interest or other such lesser amount of interest as has been received from the bank where the deposit has been held, a statement indicating that you should provide the landlord at the termination of tenancy with a forwarding address where interest can be sent, and a description of the rented apartment.
THE LANDLORD IS REQUIRED TO PAY INTEREST ON BOTH LAST MONTH'S RENT AND SECURITY DEPOSIT.
Payment of Interest: Interest is payable to you each year on the anniversary date of your tenancy. On each anniversary date, the landlord must give or send you a statement indicating the amount of interest owed you for your security deposit and/or last month's rent. At the same time the landlord must give or send the interest due or a notice that you may deduct the interest from the next rental payment. If within 30 days of the anniversary date you do not receive the interest or the notice to deduct, you may deduct the interest from your next rental payment. You do not have to live in your apartment for more than 12 months to be eligible for accrued interest on last month's rent. If your tenancy terminates before the anniversary date, you are entitled to all interest accrued on last month's rent. (Interest does not accrue for that month for which the last month's rent is used.) However, the security deposit must be held for a year or more starting from the commencement of tenancy to make you eligible for 5% interest or other such lesser amount of interest as has been received from the bank in which the deposit has been held on your security deposit. Interest on both last month's rent and security deposit must be paid within 30 days of the date of termination.
The payment of interest on security deposits and last month's rent has been required by law since January 1, 1972, and April 1,1984, respectively.
Important! The law requires a landlord to hold a security deposit in a separate, interest-bearing account in a Massachusetts bank. (The landlord does not have to maintain a separate account for each deposit.) So within 30 days after receipt of the security deposit, the landlord must give you a receipt identifying the bank's name and address, the account number, and the amount of the deposit. If the landlord fails to comply, you are entitled to immediate return of your security deposit.
Statement of Condition: If a landlord or agent takes a security deposit, (s)he must give you a signed, separate written statement of the present condition of the premises. You must be given this statement when the landlord/agent receives the deposit or within 10 days after tenancy begins, whichever is later. The statement must contain a comprehensive list of existing damage including any certified violation of the State Sanitary Code or building code and a list of damages adjudicated by a court. If you do not agree with the contents of the statement, you must return a corrected copy to the landlord within 15 days after you receive the list or 15 days after you move in, whichever is later. If you do not return this list, a court may later view your failure to return the list as your agreement that the list is complete and correct in any suit that you may bring to recover your security deposit. If you do not submit a separate or corrected list of damages, the landlord must return it within 15 days of receipt with a clear written response of agreement or disagreement. This signed statement and the original condition statement are the basis upon which future deductions for damage will be made. If the landlord does not give you a Statement of Condition, you should write your own and send a copy to the landlord or agent.
Transfer of Security Deposit and Last Month's Rent: Upon sale or transfer of the building, the landlord must credit the last month's rent and security deposit with any accrued interest to the new landlord. The new landlord is required to notify you in writing that the last month's rent and/or security deposit was transferred to him within 45 days from the date of transfer. The notice must also contain the new landlord's (and agent's, if applicable) name, business address and telephone number. If the former landlord fails to transfer the pre-payments to the new landlord, s/he is still liable, but the new landlord shall also assume responsibility. If the tenant is still living in the apartment, the new landlord can satisfy his obligation by granting the tenant free rent for a period equivalent to the pre-payments made, typically one month's rent.
Damage Deduction from Security Deposits: The landlord must return the security deposit within 30 days after the termination of tenancy. However, the landlord can deduct only for the following:
If the premises are damaged, the landlord must provide the following within 30 days after the tenancy ends:
The landlord cannot deduct for repairs for any damage listed in the Statement of Condition or acknowledged amendments, unless the landlord can prove that s/he repaired the original damage after notification, and that new damage was caused by the tenant. The landlord must return the balance of the security deposit (if any), after all proper deductions have been made.
IF THE LANDLORD FAILS . . .
. . . YOU ARE ENTITLED TO TRIPLE DAMAGES, PLUS COURT COSTS AND REASONABLE ATTORNEY FEES.
IF THE LANDLORD . . .
. . . YOU ARE ENTITLED TO THE IMMEDIATE RETURN OF YOUR SECURITY DEPOSIT. THE LANDLORD CANNOT KEEP YOUR SECURITY DEPOSIT FOR ANY REASON, INCLUDING MAKING DEDUCTIONS FOR DAMAGE.
The tenant is entitled to a safe and habitable living environment. The State Sanitary Code protects the health, safety and well-being of tenants and the general public. The local Boards of Health enforce the Code.(Note: In Boston, it is the Housing Inspection Department.) Copies of the Code may be purchased from the State House Bookstore, State House, Room 116, Boston,MA 02133, (617) 727-2834.
The Code includes the following provisions:
Reporting Violations of the Code: If you feel conditions exist that may violate the Code, such as the ones listed above, follow these steps:
The Massachusetts Supreme Judicial Court ruled that when a landlord fails to maintain a dwelling in a habitable condition, a tenant may properly withhold a portion of the rent from the date the landlord has notice of this breach of the warranty of habitability(M.G.L., c. 239, $8A). Rent withholding can be a useful tool to force repairs, but it is a serious step and should be dealt with carefully. You may want to get some legal advice before proceeding with rent withholding since the landlord may try to evict you for non-payment of rent. You should first appeal to your landlord in writing to make the necessary repairs. You should next contact your local board of health to inspect your apartment for health code violations. You must be current in your rent up until the time of the problem and the unsanitary conditions should be such that do not require the apartment to be vacated. If violations still exist, you should write to your landlord informing him/her that you will be withholding rent and be sure to specify your reasoning for doing so. Deciding how much to withhold is individual to the situation of the tenant (e.g., the cost for loss of heat or other major inconvenience). You need only pay the fair rent for your unit given its defective condition.
Repair and deduct is another means by which a tenant may make emergency repairs in an apartment or common living areas and deduct up to four months future rent to pay for them if three conditions are met (M.G.L.,c. 111, s.127L):
If the tenant qualifies under "repair and deduct," the tenant may treat the lease or rental agreement as broken, and may move rather than undertake the necessary repairs. However, the tenant must pay the fair value for the period s/he occupied the apartment and vacate the apartment within a reasonable period of time.
Shutoff Rights: The landlord cannot cause the removal or shutoff of utilities except for a temporary period during repair or emergencies. In cases when a landlord's account is about to be shut off for non-payment, state law (M.G.L., c. 164, sec. 124D) and Department of Public Utilities regulations require utility companies to notify each affected tenant in writing at least 30 days prior to the scheduled termination. Tenants may also be asked to pay part of the overdue bill to the utility and deduct that payment from their rent. Tenants should contact the Department of Public Utilities at (617) 727-3531 or (800)392-6066 for more information.
Right Against Unlawful Entry: (M.G.L., c. 186, sec. 15B) The landlord may enter the tenant's apartment under a right of entry clause by written agreement only for the following reasons:
The landlord should be "reasonable." S/He should attempt to arrange a mutually convenient time to visit the apartment. If the landlord persists in entering your apartment in an unreasonable fashion, you should file for a temporary restraining order at your local district court.
IF YOU ARE A TENANT WITH A LEASE, your landlord may attempt to evict you if:
Your landlord must first send you a "Notice to Quit." The terms of your lease will dictate the notice required. Typically, if you are being evicted for non-payment of rent, you must receive a 14-day notice by law, and for other-cause eviction, notice as specified in the lease,typically a 7-day notice.
IF YOU ARE A TENANT-AT-WILL, your landlord is not required to give you any reason for termination of your tenancy, but there must be reason to evict. The fact that your landlord has terminated your tenancy-at-will, however, constitutes sufficient reason. The termination notice (see "Types of Tenancies") is the "Notice to Quit."
YOU DO NOT HAVE TO MOVE OUT OF YOUR APARTMENT AFTER THE 14 OR 7 DAYS. You may only be evicted from your apartment when a judge orders you evicted. If this is the first time in a 12-month period that you are being evicted for non-payment of rent, you may avoid eviction by paying up any rent owed within ten days of receipt of the notice. The notice of a tenant's rights to cure in a non-payment case must appear on the "Notice to Quit." If the notice does not appear, as it may not in the case of a tenant-at-will, the tenant has until the date the Answer is due to pay up back rent.
NOTE: 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.
You may be able to avoid the court eviction procedure altogether by using alternative mechanisms:
If all else fails and the landlord is bringing you to court, be prepared to defend yourself. If you do not show up, you will default and automatically lose any defense against eviction. Even if your landlord tells you s/he has decided not to pursue eviction, you should appear on the date specified to protect yourself. You may want to seriously consider getting some legal advice before going to court.
The Summons and Complaint: After the notice period (14 or 7 days) has passed, the landlord delivers to the tenant a Summary Process and Complaint. This officially informs the tenant that the landlord is taking legal action against the tenant. The complaint will state the date of the eviction hearing and the date on which the Answer must be filed.
Answer: The Answer is a written response from the tenant stating why s/he should not be evicted. The Answer also gives you the chance to make counterclaims against the landlord. Counterclaims may include, for example,health code violations, retaliation, harassment, security deposit violations, or improper eviction procedure. The Answer form is available at your local district court. It must be received by both the court and the landlord by the Monday before your court date. KEEP A COPY FOR YOURSELF.
The Appeal: The judgment is entered with the clerk of the court on the Friday after the trial. If you lose the case, you may appeal the decision and request a new hearing. If you choose to appeal, file a Notice of Appeal within 10 days after the date the judgment is entered. You will be required to pay an "appeal bond" which may be waived if you are not able to afford it. It is advisable to speak with an attorney at this point.
The Execution: The execution is the judge's eviction order. If the eviction is to take place, the court will give the landlord an execution paper ten days after the judgment is entered. The landlord cannot evict you without this paper. The execution may be served by a constable or sent by registered mail. At least 48 hours before the execution is to be served, you must be given written notice of the date and time when, if you have not already left, you and your possessions will be physically removed from the apartment. The execution is good for three months. This means that if your landlord chooses to allow you to stay in the apartment s/he 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 your current rent, s/he cannot use the execution at any point and must return it to the court.
The Stay of Execution: If the eviction was not your fault or you cannot find a place to live, you may be able to convince the judge to grant you a stay of execution, allowing you to stay in your apartment for up to six months. Elderly or handicapped tenants can request a stay of up to one year. However, if you are being evicted for non-payment of rent, you have no clear legal basis to request a stay. In the case of a tenant whose damages (which may arise from counterclaims made by the tenant) are less than the amount owed to the landlord(e.g., back rent), the tenant has 7 days to pay the balance, with interest and court costs, and thus avoid eviction (M.G.L., c. 239, s. 8A)
The Eviction: When the date on the execution order arrives, you must move out. The landlord is not required to give you any further notice once the eviction order has been executed. It is best to move out your own furniture. If you do not, the sheriff or constable will forcibly move you out and place your possessions in storage.
You should make a list of the stored items and any identifying marks. Your furniture cannot be put on the street unless you give permission. Though not stated by law, usual practice holds that you will be responsible for the cost of storage after the first three months. Your former landlord may also sue you for the cost of eviction (e.g., 3 months storage, constable and moving fees). If you do not get your furniture out of storage within six months, the person storing it has the right to sell it. However, you do not have to pay back rent to get your furniture out.
CONDOMINIUM CONVERSION: State law requires that an owner who is converting rental units to condominiums or cooperatives must give tenants a notice to vacate of one full year or until the expiration of the lease, whichever is longer. If the tenant is elderly (62 and older),handicapped, or low/moderate income, the tenant must be given two years to vacate the apartment. The notice of condominium conversion must be sent certified or registered mail, return-receipt requested.
During this time period, rent cannot be raised by more than 10% or the Consumer Price Index, whichever is lower. The owner is required to pay up to $750 per rental unit for relocation expenses; $1000 per unit if the tenants are elderly, handicapped, or low/moderate income. The owner must also assist elderly, handicapped, or low/moderate income tenants to find comparable housing in the same city or town.
Each tenant must be given the opportunity to purchase the unit s/he occupies. The conditions of the purchase must be equal to or better than those offered to the public. Massachusetts cities and towns have the right to modify state condominium laws. Boston, Acton, Brookline, Cambridge, and Somerville already have their own condo conversion laws and so are not bound by the state law. Check with your local housing agency for more information on individual city and town laws.
The Self-Help Guide in the Community Service pages of your local telephone directory lists a number of area organizations which provide assistance to tenants (e.g., boards of health, legal aid services, consumer and tenant groups). Telephone numbers for local housing authorities, rent control boards and district courts are listed in the blue pages of your phone book.
Boston Fair Housing Commission
Face-to-Face Mediation Program: Contact your local consumer group which is listed in the Self-Help Guide in the telephone directory or call the Attorney General's Consumer Hotline -727-8400- which can also direct you to a program in your area.
Housing Services Program: The Housing Services Program provides tenant and landlord mediation, tenant counseling and information to low-to-moderate income tenants and landlords. To find out which community agency covers your city or town,contact the Executive Office of Communities and Development at (617) 727-7127.