Tips for Moving Out of Your Apartment

As late spring comes upon us, so does the time of year when leases turnover.  People move for all sorts of reasons -- perhaps you are finishing school and leaving the area, you've gotten a new job or changed your family size.  Whatever the reason, you are packing up and changing addresses.

Here are some tips to avoid legal troubles after you move out of an apartment.

• You are generally required to leave the apartment in broom clean condition.  What that means is that you should leave the apartment in clean condition with no serious damage.  If there is damage, repair what you can.  If you cannot repair it, secure estimates for the cost of the work from a professional.  Make sure the apartment is empty.  Take out the trash, vacuum or wash the floors, clean the bathroom and defrost the refrigerator, empty it and leave it open.
• If you have an arrangement with the landlord or the new tenant to leave something, make sure you have it in writing, 
• Prepare a letter to the landlord that states the date and that the keys are enclosed,  If you have paid a security deposit, notify the landlord of an address where it should be sent. 
• Notify the landlord of your moving plans in writing and be clear.  You don't want the landlord to think you have left and clear out those last remaining items you had planned to come back for.
• Once you have moved everything out,  make a good record of the condition of the apartment. Have a friend who could testify in court come to your unit.  Bring a camera and take a complete set of photographs of the apartment.  Show the walls, the floors and the windows.  Take photos of the interior of the appliances.  Take photos of each room.  You can also take videos.  At least one colleague suggests having a newspaper with the date in each photo as confirmation that the photos could not have been taken earlier than the date of the newspaper.  
• Once you have finished with the photos, turn off all lights and leave the apartment. Immediately return the keys.  If your friend can accompany you, all the better.  Make sure you have that letter you prepared and deliver it to the office.  If you can, get a receipt for return of the keys from someone in the management office.  If you have to mail the keys, mail them in some sort of fashion that you can track the package.  If the landlord has instructed you to leave the keys, then take a photo of the keys.
• Keep a copy of all your correspondence with the landlord.

The return of a security deposit has specific rules.  If you do not get your security deposit back at all or feel that some of it was wrongfully withheld, give us a call and we can evaluate whether you have a claim against your landlord.

Security Deposits and Eviction

Yesterday, the Supreme Judicial Court handed down a ruling in the landlord tenant realm that every landlord and tenant needs to understand.  It ruled that a violation of the security deposit law not only can be a basis for counterclaim as to damages, but is a defense to a landlord's claim for possession.

What does this mean?  It means that if a landlord is attempting to evict a tenant and the tenant claims that the landlord failed to properly handle the security deposit, if the tenant wins on that claim, the tenant can defeat the landlord's claim to evict the tenant and the tenant gets to stay in the unit.

How will this play out in an eviction case?  Let's say the Landlord brings a summary process action to evict the tenant for non-payment of rent.  The tenant counterclaims on a number of claims, including that the landlord did not handle the security deposit properly.  Trial is held and the tenant succeeds in his claim that the security deposit was mishandled and is awarded damages.  The amount awarded for the mishandled security deposit is offset against the outstanding rent.  IF the tenant's damages exceed the landlord's damages, then the tenant keeps possession.  IF the landlord's damages exceed the tenant's damages, the tenant must be given seven days to pay the amount owed to the landlord and if the tenant pays, then the tenant keeps possession.  The same rules apply for a no fault eviction.

Before starting a summary process action, we always ask our landlord clients whether a security deposit was taken and if so, how it was handled.  Landlords must be vigilant in documenting, maintaining and handling security deposits and be prepared to return the deposit in the event that it was not handled properly to avoid tenants succeeding on these types of claims.

Tenants must keep track of the paperwork that they were provided upon move in, and should keep a copy of the check they wrote for the security deposit. If there is any question as to how the security deposit was handled, a security deposit counterclaim should be raised.  If a tenant is withholding rent due to conditions, it is more important than ever to escrow those funds, even though that is not required by law.  A tenant only has 7 days to pay the money into court, including weekends and holidays.  This time frame, ultimately, might be fairly short and the tenant should not have to scramble for the funds.

Do you need a will?

     The answer, as with many things in the law is -- it depends.  Before answering the question with a little more clarity, let me explain what a will is.  A will is a legal document that allows you to designate where your property goes when you die, who you want to be in charge of making sure the property goes where it is supposed to go and appoint guardians and conservators for your minor children.

     If you do not have a will and you die, then your property passes by what are called the laws of intestacy.  In other words, Massachusetts has a law which says how property is distributed if you die and you do not have a will.

    Regardless of whether you have a will, some of your property may  not pass via the instructions in your will.  Insurance policies and retirement accounts pass to the person or people you designated in those documents that you filled out when you bought the policy or with your human resources office or investment broker.  Real estate held as tenants by the entirety or held as joint tenants passes to the survivor listed on the deed.  Bank accounts held jointly also automatically become the property of the other owner of the account.

     If you own nothing in your own name, not even your car and all of your major assets are tied up in jointly held real estate, insurance policies or retirement funds, you may think you do not need a will.  I would still advocate that you should have one anyway.  Why leave it to the legislature to decide where your money should go?  You may also have some personal property such as a wedding ring or fine china that you want to designate to certain loved ones.

     In addition to the will, you may need other estate planning documents such as a durable power of attorney, a health care proxy and one or more trusts.  You should consult a lawyer about what works best for you depending on your finances and your personal situation.

Hiring a home improvement contractor

     It is that time of year -- the "for sale" signs are up, and the crocuses will be up soon.  As we joke in our family, very shortly, the for sale sign comes down and the dumpster appears in the driveway and the building permit in the window.  Whether you are buying a new home and renovating or sprucing up the house you have, here are some things to consider before you let a contractor do work on your house.

• Contractors in Massachusetts should have both a home improvement contractor registration and a construction supervisor license.  Make sure your contractor has both.
• Ask friends, family, colleagues, and neighbors for referrals. Receiving a referral from someone you know is often the best way to find the best person to do the job.  But don't rely solely on the referral.  Do your homework.  
• Make sure that the contractor can do the job for you.  In other words, if the contractor mostly renovates kitchen, he may not be the right person to bump out that dormer on the second floor.
• Ask the contractor for the names of the last 3 projects he has completed or is presently working on. Also, ask to visit one or more of his current work sites.  If a contractor will only give you references make sure that the projects were completed in the last year.
• Find out what kind of insurance your contractor has.  Keep in mind that it is rare that a contractor has insurance that will pay you for a claim that the contractor was negligent.  Most policies exclude poor workmanship from coverage.
• Make sure you have a contract in writing and that the contract includes basic items like payment terms, termination, and language required by Massachusetts law.  

Month to Month Tenancies

     When we receive a call at the office from a potential tenant client, the first thing we need to determine is the type of tenancy the tenant has.  If you have no written lease, then the tenant has a month to month tenancy.  That means that the landlord or the tenant can terminate the rental relationship on one full month's notice.

     Not having a lease has advantages and disadvantages for both landlord and tenant.  If you are a tenant, no lease means you can move fairly easily and quickly.  This can be great if you don't like the place, get noisy neighbors or decide to purchase a home.  It can be less than ideal because the landlord can require you move on as little as 30 days' notice for any reason that is not discriminatory.  The landlord can also seek to raise your rent at anytime.  If you receive a notice to quit and do not have a lease, you will need to move.  There may be some negotiating with the landlord to figure out a time that is mutually convenient, but ultimately, you must move.  This is true even if you have lived in the unit for a very long time.

     From the landlord's perspective, not having a lease gives you the freedom to evict someone without reason.  For example, if a tenant has  lease, is paying rent and generally abiding by the terms of the lease, but the landlord just does not like the tenant (for some non-discriminatory reason), the landlord does not have grounds to evict the tenant and must live with the tenant through the end of the lease term.  With no lease, a landlord can send a notice to quit and with any luck, the tenant will move.  The tenant can have the property available on reasonably short notice for a friend or relative who needs a place to live.  You may also be able to charge a bit of a premium as there are certain groups of people in need of temporary housing.  These would include people doing renovations on their home (either by choice or because of some sort of catastrophe), people moving out of their residence because of a divorce, people relocating, and people with temporary job assignments, just to name a few.  The disadvantages for the landlord are that the tenant could leave at anytime and you could end up with a bit of a revolving door at your unit.  Re-renting a place takes time, effort and expense.  You also do not have the chance to specify rules or regulations that you wish to have followed.

     So when is it better to have a lease as a tenant?  If you plan on staying where you are for at least a year and do not want to move, you should seriously consider a lease.  Similarly, if you have been in a unit for a number of years and do not want to move, you should make sure your lease is renewed.  On the other hand, if you fall into any of the above categories -- recently separated or divorced, moving to a new town, or desirous of home ownership, then a month to month tenancy would be better for you, unless the landlord is willing to give you a short term lease.

     From a landlord's perspective, in most cases you are better off having a lease.  Your tenant is responsible for rent for twelve months and you can specify the terms of the tenancy.  You can say no smoking, no waterbeds or no space heaters.  You can charge a tenant for gas or electricity of separately metered.  You can indicate fees for rent not paid for 30 days.  However, there are a few situations when you may not want to have a lease.  For example, if you purchased the property with the intention of having a family member move in and the date of move in is uncertain, then perhaps you want to rent the unit for a few months.  Depending on your town, it may be easy to rent properties and you are happy with the premium you can get for rentals of several months at a time because there are always people who want to rent.  You may not want a lease if you live in the same building as the rental unit and want to see if you and the tenant get along without being locked into a year long lease.

     Finally, you can have a written month to month lease which could be a good combination in many circumstances.  The amount of time which must be given to terminate the lease can be spelled out, so you can make it 60, rather than 30 days.  The landlord also can spell out specific terms it wants included.  Both sides still have flexibility in moving out, but neither side has a guarantee of housing (for the tenant) or income (for the landlord).