What is cross-metering?

   In Massachusetts, in general, a landlord is required to pay for a tenant's electric and gas utilities unless, there is a separate meter which serves only the dwelling unit or other areas that a tenant uses exclusively and a written lease which states that the tenant is responsible for those utilities.  If a tenant is paying for electricity or gas other than the electricity he or she is using in the unit, then, often times, one uses the term cross-metering.

    Because of the way the Sanitary Code regulations are worded, if you are renting and paying for more than just your unit's electric or gas, you should not be paying any of it.  The remedy is not to figure out what percentage of the bill is from your electric use.  Rather, the remedy is that you are entitled to reimbursement from the landlord for the entirety of those utility bills.

     Further, the Consumer Protection Statute regulations, Section 3.17 that it is an unfair practice for an owner who is obligated by law to provide gas or electric service and fails to provide such service.  As we have noted previously, when a defendant engages knowingly or willfully in unfair or deceptive acts or practices, they can be subject to punitive damages.

     If you own a building, particularly a small building (2-3 family unit), take care to ensure that the units are each only paying for their own utilities.  If you cannot make the determination, then prior to renting the unit, adjust the rent to include utilities to avoid any issues with your tenants.

How to Evict Someone Who Pays no Rent

   When you read this title, it may make no sense -- who would rent to someone and not charge them rent?  Our office has run into this situation in a number of ways most of them involve family relationships or romantic relationships which have turned sour.  The individual usually has resided at the premises for some time.  They are unfortunate in almost every circumstance and most of the time, our office gets called after the owner of the home has tried, unsuccessfully, to get the other person to leave voluntarily.

     Under these circumstances, there are are only a few options to consider.  First, you could claim that the unwanted person is living at the premises as a gratuitous tenant. If you are staying somewhere and are not providing any consideration for your occupancy, then you are not a tenant and you are not entitled to a notice to quit.  Rather, if your host asks you in writing to leave and you refuse, your host can go to Court and immediately start a summary process action (an eviction action) and seek an order to remove you from the premises.

     So what is consideration?  Most often it is money.  But, keep in mind that consideration does not necessarily have to be in the form of rent.  If your guest is helping the household by paying for utilities, or food, those contributions could be considered consideration.  Those actions could be consideration which would make your guest a tenant.  Once someone is a tenant, they are entitled to either three months or one month notice before starting eviction proceedings, depending on how often the consideration is paid.

        Another option is to argue that your guest is a licensee.  A licensee is a “person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”  Restatement of Torts, Second § 330.  The key to this argument is that the owner of the Property retains legal possession, custody and care of the whole house and of every room.  In other words, this argument works best when a guest is using one particular room in the home, but does not have exclusive access to it.  For example, if someone comes and stays in your guest room, but you enter the room regularly to empty the trash, change the sheets, vacuum or even to get things out of the closet, then your guest does not have exclusive access to the room.  Further, the guest must not be making any financial or other contribution to the operation of the home.  As with a gratuitous tenant, a licensee is not entitled to a formal notice to quit, but rather just a letter asking him or her to leave. 

     Trying to evict without notice comes with risks.  If your guest is not a gratuitous tenant or a licensee, but is a tenant and you have not sent a proper notice to quit, then you will lose your eviction case and have to start all over by providing notice.  You should tread carefully and understand the risks of not providing a formal notice to quit.

     The most conservative, but most time consuming process is to send a formal notice to quit.  If your guest is providing some sort of consideration, like paying the utility bills every month, then you can provide a 30 day notice to quit.  However, if the consideration is not paid as regularly or if you want to argue gratuitous tenancy or licensee and don't want to concede that there is consideration, then you should serve a 3 month notice to quit.  Why you may ask?  The statute provides that you can serve a notice to quit in the interval in which rent is paid or 3 months.

     Whenever you are an owner and need someone to move out, its always best to consult with a lawyer who can help you figure out the proper process and ask you other questions about your possible risk for counterclaims before you start any proceedings.

Help us, help you

We get many calls a week at our office from potential clients.  We want to help you, either by representing you, or at least by pointing you in the correct direction.  Here are some suggestions to make the most out of your call with us.

• If your claim involves a contract or a lease, please read the lease before you call and understand what it says about your issue.  For example, if you want to terminate a lease or a contract, read it.  What does it say about ending the contract?

• Please tell us what, if anything, you have received from the other side.  We encourage you to call as soon as you receive something from the other party -- a letter, a lawsuit, a notice or whatever else it is.  Most of the time, there are deadlines associated with whatever was sent to you.  The more time we have to respond, the more likely we are to be able to take your case.

• Please be prepared to send us your contract, lease, notice, letter or lawsuit by fax or email or at least have the docket number available for us.

• As soon as you realize there might be an issue, document everything.  Confirm telephone calls in writing and make notes of your interactions with the other side.  You must build your case.  He said - she said cases are difficult, so amass your proof while the problem is going on, rather than having to go backwards.

• If you are a tenant and you have a problem with a condition in your unit, please call your city or town Health Department or Inspection Services Department to visit your unit.  We generally require that your problems have been documented by a city or town official before we will take your case.

• We are not a pro bono legal services agency.  We do charge for our services.  We take some cases on an hourly basis (we charge hourly for our work) and some cases on a contingent fee basis (we take a percentage of what we win).  How we take any given cases depends on a number of factors and the type of engagement is determined on a case-by-case basis.  

• If your claim is less than $7,000 in value, do consider taking your case to small claims court, particularly when you cannot recover your attorney's fees.  Even if your claim is slightly more than the small claims limit, it may be worth considering small claims if you have no ability to recover attorney's fees.

• The website Mass. Legal Help  has many resources available for pro bono parties.

Help, my heat is not working!

     It has been bitterly cold in Massachusetts this week.  If your heat is not working properly and you are a tenant or a landlord, here are some things you need to know.

• Unless the tenant is providing the fuel for heat, the landlord is required to provide heat between September 15 and June 15 each year.  During that time, the temperature between 7:00 am and 11:00 pm must be between 68 and 78 degrees Fahrenheit.  From 11:01 pm until 6:59 am, the temperature must be at least 64 degrees Fahrenheit (and still cannot exceed 78 degrees).

• You dont have to be completely without heat to call the town or city about it.  If your unit never gets above 66, you should call and document the issue..

• A landlord is responsible for maintaining the heating system in good operating condition.  This is not something that can be shifted to the tenant.

• If a tenant does not have heat, let the landlord know immediately.  It is fine to notify by phone, but follow up with an email or hand written note and keep a copy.  

• If you are a landlord, keep your tenant apprised of the timeline and events.  Treat the tenant as you would want to be treated if it was your house with no heat.

• If the landlord is not responsive, call your town or city board of health or inspectional services who will conduct an inspection and document the issue.  If it is after hours, you can try and call the non-emergency line of your local police.  They might be able to help.  If your heat was out previously, call again and ask for a reinspection.  Lack of heat is considered a condition that endangers or impairs safety.  Ask the city or town about emergency relief.

• Particularly where the weather is so cold, it is not inappropriate to ask the landlord for space heaters until the heat is fixed.  If the heat is going to be out for sometime, you may ask the landlord pay for a hotel or alternative housing.

• Ultimately, if your heat is not working properly, but your landlord will not pay for you to stay in a hotel, and bunking with friends or family is not an option, you have few choices.  My recommendation is to make the decision to stay or go that you need to make for you and your family's health, safety and welfare.  There may be legal implications and you may have a case, but be safe first and foremost.

Stay warm and safe out there.

Eviction Basics - Tenant Perspective

     Most of the questions we get from residential tenants fall into 2 categories -- either they have received an eviction notice and are not sure what to do or, they are having a problem with their unit and feel the landlord is not being responsive. We'll address eviction now and conditions in our next blog post.

     There are different types of notices to quit that one can receive -- you can receive a 14 day notice to quit, a 30 day notice to quit or a three month notice to quit.

     A 14 day notice to quit is solely for if you, the tenant, did not pay your rent.  If you have a lease, you have a chance to cure.   So long as you pay all rent due, interest and costs of the suit before the day the answer is due, then your lease is not terminated.

     If you do not have a lease, the rules are bit different.  First, you only have the right to cure if you have not received a notice to quit for non-payment of rent in the past 12 months.  Second, if your notice to quit has some required language requiring you to pay within 10 days, then you must do so to preserve your tenancy.  If your notice to quit does not contain the statutorily required language, then you have until the day the answer is due to get caught up on your rent.

     If you do not have a lease, then a landlord can terminate your tenancy for a good reason (you are violating the rules of the building), no reason (this is a no fault eviction) or for a bad reason (you carry a purple handbag or you like heavy metal music).  A landlord, however, cannot evict you for an illegal reason such as your gender, sexual orientation, ethnicity, national origin, race, religion, disability as well as a few others.  If you pay rent monthly, then the landlord must give you either one full month's notice or 30 days, whichever is longer.  If you pay rent quarterly or you do not pay rent at all, then the landlord must give you three full months' notice in the notice to quit.

     A tenant without a lease, even a long time tenant, can be evicted and there is often little that can be done, unless there are condition issues or other defenses or counterclaims available.

Eviction Basics - Landlord Perspective

     We get a fair amount of calls from landlords who want to evict their tenant.  Here are some basic things to keep in mind.

1.  If you have a lease with your tenant, then the tenant has to have violated the lease in order for you to be able to evict them.  If a tenant with a lease has not paid rent, then you send a 14 day notice to quit.  Any other reason requires a full calendar month's notice or 30 days whatever is longer.  If you serve a 30 day notice to quit today, May 4, 2017 - the tenant has until June 30, 2017 at midnight to vacate.  There are some very narrow exceptions to these rules if there is drug use or if it is at the very end of the lease.  If you have either of those situations, call us to discuss.

2.  If your tenant has no lease, the same rules apply for non-payment of rent.  And, the same rules apply for the timing of a 30 day notice to quit.  The only difference is that if the tenant does not have a written lease, you may evict them without cause.  In other words, you can evict a tenant for: 1.) a good reason -- they are smoking or loud; 2.) a bad reason -- you don't like them anymore.  They have green hair; or .3) no reason at all.  HOWEVER, you cannot evict a tenant for an illegal reason.  You can not evict someone because of their race, gender, religion or nationality.  You can not evict someone because they have a child or a disability or secure a government voucher for housing.  

3.  If your tenant is withholding rent because of conditions at the unit, proceed carefully.  If the tenant followed the requirements under the statute to withhold rent and you stake steps to evict him or her, you must show, by clear and convincing evidence, that you are not evicting the tenant in retaliation for his or her complaints.

4.  Do not undertake self help and change locks or move your tenant's property out of the unit.  The law imposes treble damages, plus an award of attorney's fees to landlords to do not follow the prescribed process.

5.  Hiring a lawyer to undertake the Notice to Quit is a wise investment.  We know the timing requirements and services rules.  If the Notice to Quit is not done right, your case can be dismissed and you have to start all over again, losing considerable time in getting your tenant out of the unit.

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.

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).

Changing the Locks and Providing Keys

A tenant calls the landlord and explains that she is under imminent threat of  domestic violence, rape, sexual assault or stalking at her apartment and that she wants the locks changed.  What can a landlord do?  What must a landlord do?

If the perpetrator is not a resident of the unit, the landlord is required to change the locks within two business days upon a tenant's request.  Prior to doing so, the landlord may request proof of the tenant's status as a victim and the landlord may request the perpetrator's name.  The landlord may also charge the tenant a reasonable fee for changing the locks. 

If the perpetrator is a resident of the same unit as the victim, then the victim must provide the landlord with a valid restraining order (protective order) from the court or a statement from law enforcement, that indicates the perpetrator poses an imminent threat.  

If the tenant makes the request of the landlord and the landlord does not change the locks within two business days, then the tenant may change the locks without the landlord's permission.  If a tenant does this, the new lock must be the same or better quality than the old lock and if the lease provides, promptly provide a key to the landlord.  If the landlord takes action to prevent the tenant from changing the locks, the landlord is liable for the greater of three months' rent or actual or consequential damages, plus reasonable attorney's fees.

Owners who act in good faith are not subject to damages and owners who refuse to provide a key to someone based on the reasonable belief that he or she is the perpetrator of a rape, sexual assault, stalking or domestic violence, are not liable.

The takeaway for landlords is that if you have a tenant who claims to be the victim of domestic violence, rape, assault or stalking and wants the locks changed, you must act quickly.  Verify the veracity of the tenant's story and if true, then change the locks promptly. Document everything.  If a tenant calls you to make this request, you can start to act on it, but have the tenant follow up in writing.  Obtain verification in writing and keep a copy for your file.  If the perpetrator asks for a copy of the key and you refuse to provide one, make a note in the tenant's file.

Landlord's Rights and Responsibilities When a Tenant is a Victim of Domestic Violence

In our last post, we discussed that a tenant can terminate a tenancy when he or she is the victim of domestic violence, assault, stalking or rape.  We mentioned that the landlord has the obligation to excuse the victim from the tenancy obligations, but there is additional information a landlord should know in dealing with these types of situations.

A victim/tenant must act promptly to terminate his or her responsibility under a tenancy promptly.  A tenant must notify the landlord within 3 months of the most recent act of violence and then move out within 3 months after giving the written notice.  If the tenant does not move out within the three months, then the notice to terminate is void.

A landlord must also know that the termination applies only to the victim.  No one else who resides in the unit is discharged from the rental obligations.  If, for example, a couple is residing in the unit and one moves out because the other is the abuser, then the remaining party is responsible for the rent.  Similarly, if three friends are renting an apartment and one must leave because she is being stalked by a former boyfriend, the other two roommates are now responsible for the whole rent due under the lease.  If the remaining tenant cannot pay the rent, the landlord may send a notice to quit without fear of a claim of retaliation by the remaining tenants. 

If a victim tenant is the sole occupant and vacates the unit and leaves behind belongings, the landlord may consider those belongings abandoned, unless the tenant indicates in writing that he or she will be responsible for those items and the action to be taken with respect to the belongings.

As a landlord, you can request proof that the tenant is, indeed a victim of domestic violence, sexual assault, rape or stalking, including the identity of the perpetrator.  If the landlord obtains the written proof requested, then that information must be kept confidential and not provide the information to anyone without written permission from the victim or required by court order or law.

You cannot deny renting to a tenant because that prospective tenant terminated a prior rental agreement or requested that locks be changed.  Any waiver of the provisions relating to termination or lock changes are void as a matter of law.  On the plus side, if you comply with the laws in sections 23 to 28 and any court order and act in good faith, then you may be able to escape liability from another household member as well as attorney's fees and multiple damages.

So, what is the bottom line?  Landlords who have a tenant who is or becomes a victim of domestic violence, sexual assault, rape or stalking must permit that tenant to move out on one month's notice and cannot discriminate against prospective tenants who had to leave their prior residence for those reasons.  You can ask the tenant for proof, but you have to keep it confidential and you can't legally ask a tenant to waive his or her rights under this law.  If you act in good faith and comply with the law, your liability will be limited and possibly eliminated.

Terminating your Tenancy Because of Domestic Violence

One of the things that I like about being a lawyer is that there is always an opportunity to learn something new.  Even though many cases seem similar, there is always something that makes the case unique and interesting.

Last month, I received a call from someone who had been a victim of domestic violence and needed some advice.  I explained to her that I do not practice in the areas of domestic violation, divorce or criminal law, but told her some steps she could take regarding the incident.  She was grateful for that information, but her question though focused on her living arrangements.  She and her spouse were renting an apartment and she wanted to know whether she could get out of her lease.

The Massachusetts Legislature addressed this issue about two years ago enacting sections 23-29 of Mass.Gen.L. ch. 186.  These seven sections permit a victim of domestic violence, rape, sexual assault or stalking to terminate a lease or change locks on the unit under certain conditions.  This post will focus on the conditions under which a tenant may break a lease.

If you are a tenant or co-tenant and need to move because you are a victim of domestic violence, rape, sexual assault or stalking or you are reasonably in fear of imminent serious physical harm from domestic violence, rape, sexual assault or stalking. then you may terminate your lease so long as you do the following:  notify the landlord in writing within three months of the most recent act against you.  You will still be responsible for 30 days of rent or one rental period, whichever is longer, but then you will have no further liability under your lease. In most cases, if you pay your rent monthly that means you will be responsible for one full calendar month of rent after notice.  

The landlord has the right to ask for proof that you are a victim of domestic violence, rape, sexual assault or stalking from what is known as a "qualified third party".  A “Qualified third party”, is defined by the statute as "a police officer, as defined by section 1 of chapter 90C, law enforcement professional including, but not limited to, a district attorney, assistant district attorney, a victim-witness advocate, probation or parole officer; an employee of the Victims Services Unit of the department of criminal justice information services; an application assistant in the address confidentiality program of the state secretary under section 2 of chapter 9A; a licensed medical care provider; an employee of the department of children and families or the department of transitional assistance charged with providing direct service to clients, or a manager or designated domestic violence or abuse advocate within either department; an active licensed social worker; a licensed mental health professional; a sexual assault counselor as defined in section 20J of chapter 233; or a domestic violence victims’ counselor as defined in section 20K of said chapter 233.".  

The language of the statute does not require that the perpetrator of the acts be a co-tenant.  If a victim is residing somewhere and a stalker finds out, the victim can move assuming the process outlined in the statute is followed.

The remaining tenants are not released from liability and their lease remains intact.  If you residing with several people and you must move out based on this statute, your roommates will be on the hook for the totality of the rent without you.

Termination of a Lease - Exceptions for Military Personnel on Active Duty

Those who serve in the military put their lives on the line on a regular basis so that the rest of us can be free and enjoy all the rights and benefits as Americans.  As a small token of recognition of that sacrifice, Congress enacted the Servicemembers Civil Relief Act in 2003 (SCRA).  This relatively new act replaced the Soldier's and Sailor's Civil Relief Act that was originally enacted in 1918 and revised in 1940.

There are many provisions within the SCRA that a servicemember should familiarize him or herself with.  For this blog post,we are going to focus on a particular provision relating to the termination of leases.  Simply stated, if you are on active duty and you receive military orders to change your permanent base or to go on active duty for not less than 90 days, you may terminate your lease.  You may also terminate your lease if you decide to enter the military.  This provision applies to both residential as well as business and agricultural leases.  It effectively allows the lease to be terminated completely.  A spouse or dependent is not left stuck on the lease while the military member relocates to his or her new assignment. 

In order to properly terminate your lease, you must give written notice of your termination to your landlord along with a copy of your orders and give at least one full month's notice.  In other words, if your rent is due on May 1 and you get orders on May 6 to deploy on June 6 and you provide your landlord notice on May 7, you will still be responsible for June rent as the notice does not become effective until June 1.  If you receive notice on May 28 and provide notice to the landlord on May 29, your lease obligations still terminate on June 30.  However, if you do not deliver notice of your termination until June, then you are obligated to pay rent through July.

Landlords are well advised to promptly return any overpayment and properly handle the security deposit.  The failure to do so can subject you to a fine or imprisonment of up to one year.  This, of course, would be in addition to the remedies provided under Massachusetts law for the failure to comply with applicable statutes.

Landlords are not completely without remedies.  A landlord can petition the court for equitable relief.  Some examples where a landlord might want to seek equitable relief are as follows:  For example, imagine a scenario where the landlord spends a great deal of money building out a property to accommodate the tenant's new business and planned on recouping those expenses of the course of a multi-year lease. Six months into the tenant's occupancy, he decides to join the military.  The landlord may want to seek reimbursement for the build out.  A landlord could also ask the court to order the tenant to pay costs to re-rent the property.  Because the tenant has a statutory right to terminate the lease and landlords should be on notice about this possibility, the reasons for granting the equity will likely have to be fairly powerful or involve some form of deception by the tenant for a court to award relief.

In sum,  when renting to a person on active duty, landlord must familiarize themselves with special rules that might apply.  Tenants who are in the military should also be aware of their rights and the timing of notices they must give to extricate themselves from a lease.

Breaking a Lease

     What’s a tenant to do when they have a signed leased for their apartment that does not expire for months, but get a job in a different city?  Can you break the lease?  Is the tenant going to have to pay for all those months when he or she is no longer living there?  These are all questions that have arisen with our clients in the past six months.

     To answer those questions, let’s start with the basics.  A lease is a contract and when you sign the lease both parties are bound by its terms.  When signing a lease consider whether you plan to be in that location for the length of the lease.  If there is any chance you might have to move before the end of the lease term, then you might want to try and negotiate a 60 day termination clause or even a month-to-month lease.  

    Let’s assume you did not plan to look for a new job let alone move out of state, but the opportunity of a lifetime has fallen into your lap and you just cannot turn it down.  I am also assuming for this blog post that your soon to be new employer does not want to pay for your rent for the rest of the lease term.  The first thing you need to do is to pull out the lease and read it.  Does it have a termination provision?  Does it have a provision regarding subletting? 

     If your lease has a provision about terminating early, then you can follow those provisions and give the landlord notice that you are terminating the lease.  For example, some leases will provide that with 60 days’ notice, the lease can be terminated.  What this generally means is two full months’ rent.  If you give notice on May 15, you would still have to pay June and July rent, but then no longer obligated.  If your landlord took last month’s rent at the beginning of the lease term, then you really only are coming out of pocked for one month’s rent which is a fair cost to break the lease.  Make sure you notify your landlord in writing.  If the lease specifies how notices are to be delivered, follow the lease instructions.  Some leases may require notice by certified mail or by fax and may not recognize an email notification.

     Many leases have clauses that prohibit subletting, but some do not.  If your lease does not prohibit subletting, then get those notices out on craigslist, the bulletin board at your workplace or school and put it on social media.  Keep in mind that if you do sublet, you are still responsible for the rent, so if the subletter does not pay you, you still have to pay the landlord. 

     If your lease does not have an early termination clause and prohibits subletting, then what?  You are not completely out of luck.  The next thing you need to do is to tell the landlord as soon as possible of your plans, including the date that you plan to vacate.  You can call the landlord or tell him or her in person, but follow up with an email confirming the conversation.  Ask your landlord if he or she will let you out of the lease early.  It may be that the landlord has a friend or relative looking to move in to the building.  If that is the case, then agree on a move out get and put your agreement in writing that your lease terminates as of a particular date.  You can ask your landlord about subletting, as most leases simply require the landlord’s permission to sublet.  You should tell the landlord you are willing to help get the word out and offer to post the unit within your network of family, friends, neighbors and work colleagues.  Let the landlord know that you will make the unit available to show to prospective renters.  You need to make sure that the unit is in clean and showable condition.  After all, you want someone to rent the place.  A unit with laundry scattered all over the floor and dirty dishes in the sink, is not going to be as easy to rent as a clean, uncluttered unit.  You have to de-clutter and pack anyway to move, so box up your belongings and rent storage if necessary. 

 
     The landlord cannot just turn a blind eye to your early departure and sit back and collect the rent.  A residential landlord has a duty to mitigate damages.  What does that mean?  It means that once you notify the landlord, he or she must take reasonable steps to re-rent the unit.  If a landlord does not promptly put it on the market, seeks to charge substantially more rent or does not market the property, then the landlord may lose the right to seek the unpaid rent from you.  
  
     Practically, here is how these cases can play out.  In one case, we recently represented a couple who had executed a two year lease and found out just after the first year, that the husband was being transferred.  The landlord was notified in August and the tenants even agreed to move out early so the unit could be re-rented by September 1 – a prime time for lease turnovers.  The tenant offered to circulate the available apartment throughout her network of friends, including some list servs of which she was a member.  The landlord, however, declined the tenants’ offers saying he preferred to just give it to his real estate broker.  The unit was not listed for several weeks – too late to catch the September 1 turnover date.  It was also put on the market for several hundred dollars more than the rent my clients were paying.  In that case, we were able to negotiate with the landlord and successfully terminated the tenants’ lease for just one month’s rent.  In another case, we represented a couple who had to relocate because of a new job and had about eight months remaining on their lease.  They had been in the unit for about eight years when they had moved out.  The carpet had never been replaced, nor was the kitchen updated.  In that case, the landlord began promptly showing the unit, but received feedback that the carpet had significant wear and tear.  The tenant requested that the carpet be replaced.  The landlord not only replaced the carpet, but without the knowledge or consent of the tenant, gut the entire apartment, including the kitchen and bath, making the unit uninhabitable for at least a month.  In that case, we were able to negotiate a settlement where the tenants were able to terminate their lease and receive a refund of rent as well. 

     Ultimately, the best solution is when the landlord and tenant can reach an agreement so that the tenant can stop paying the rent and the landlord can have some confidence that the unit will be re-rented quickly for at least the same amount of money.

Landlord's Obligations to Disclose Lead-Based Paint in Units

     It seems that in the Boston area, many if not most leases turn over between June 1 and September 1.  As landlords seeks to find new renters and tenants seek to find new places to live, keep in mind that federal law requires landlords who own a building constructed prior to 1978 must disclose to prospective tenants available information regarding the presence of lead-based paint and lead-based paint hazards in the housing.   The failure to do so can result in penalties from both the Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD).

    Landlords should keep the following in mind:  The disclosure applies to nearly all housing constructed prior to 1978.  Exceptions apply where: (1) a certified inspector has found the property to be lead-based paint free; (2) the rental is for less than 100 days with no ability to extend the rental period; or (3) the lease is a renewal and the landlord has already complied with the disclosure and there is no new information.  There are also exceptions for housing for the elderly and disabled, but only if no children under six resides at the unit.  If you believe you are exempt from these regulations, check with an attorney before deciding that you don't have to provide the necessary paperwork. 

     The disclosures are not onerous.  Landlords or property managers must provide the prospective tenant with a copy of the EPA pamphlet entitled, “Protect Your Family from Lead in Your Home”  or provide an EPA-approved equivalent.  The landlord must disclose to the tenant the presence of any known lead based paint and/or lead based paint hazards in the unit and associated common areas, and disclose “any additional information available” about these conditions, such as the location of the paint and the condition of surfaces.  Landlords also must provide the tenant with “any records or reports available” concerning paint hazards applicable to the building, including other units and the common areas.

    The landlord will need to get the tenant to sign a Lead Warning Statement, such as the one in the preamble to the Lead Disclosure Rule.  Landlords must retain a copy of the signed document for three years; however, the statute of limitations for enforcement is five years,  so landlords are well advised to keep their paperwork for at least that time period.
 

Finding a Good Landlord

I've written and given talks about how a landlord can find a good tenant, but after reading Boston Magazine's article "Lord of the Sties" last week, I began to think about how a tenant can find good landlord.  It is more difficult for a tenant to research a landlord, because violations from Inspectional Services or the local Health Department are not generally available online.  Here are some questions to ask and some research to undertake.

First, when you look at the apartment, pay close attention to the condition of the common areas as well as the apartment.  Look up at the ceiling -- do you see water stains?  Look at the floor -- is it cracked?  Is there a lot of dirt and garbage accumulated in the corner?  If there is laundry in the building, what does the area look like?  Are there water stains in the basement?

Second, ask questions.  Ask whoever shows you the apartment.  If you see anyone in the hallway, ask whether they like living in the building.  Ask about the landlord.  Ask why the tenant moved out.  Maybe you will get a real answer, maybe not, but you certainly won't know if you don't ask.

Third, if you can go back to the building without the manager or real estate agent, do so.  Because of building security, this may not be possible, but if you are looking in the spring or summer maybe you can find some people leaving the building and, without stalking them, ask some questions.

Fourth, research your landlord.  Find out his or her name and Google that person.  If you have time, go to the Inspectional Services Department or Health Department for the city or town in which the apartment is located and ask to see records for that building.  Anytime there is a violation of the Sanitary Code, the inspectors are supposed to write up the violation.  These records are public record, they just are not online. Further, a town inspector probably knows which landlords are better and which are worse, particularly if you are dealing with a smaller city or town.  Court records may not be as helpful because there are generally claims and counterclaims between landlord and tenant and unless you review the entire file, it may be difficult to determine whether there really are condition issues.

Finally, go with your gut.  If you have a bad feeling about the apartment, then don't rent it, no matter how good a deal it might be.

The Most Common Question - Landlords

Recently, a dear friend of mine asked me what the most common substantive legal question is that I am asked as a lawyer? Since I practice in several different areas, I'd have to answer that question, by category of practice area.

In the landlord/tenant realm, the most common question I am asked by landlords is "How do I evict that tenant?  The actual process of evicting a tenant is set out in Chapter 186.  In short, you have to deliver a Notice to Quit, give the tenant a certain amount of notice -- generally either 14 or 30 days -- depending on the reason -- and then, if the tenant does not move out, you commence a summary process action.  However, in that relatively simple scheme lie many pitfalls for landlords.  A tenant may assert counterclaims against the landlord, even if the tenant is behind on the rent.  The timing of each of the steps is particular and documents must be filed with the Court on certain days.  A misstep can result in dismissal of your summary process and then you have to start all over again.

Before commencing the process to evict a tenant, I ask my landlord clients a series of questions to make an initial assessment as to how easy or difficult it will be to evict the tenant.  For example, if the landlord took a security deposit, but failed to handle it properly, the tenant can counterclaim and may receive three times the security deposit, plus attorney's fees.  If the tenant was withholding rent because of problems with conditions at the unit, that issue needs to be explored.  If the landlord was aware of bad conditions at the unit and did not correct them, the Court could find the landlord in breach of the warranty of habitability or the covenant of quiet enjoyment.  If the landlord started to evict the tenant after the landlord was aware of the tenant's complaints, then the landlord may have engaged in retaliatory behavior which also subjects the landlord to damages.

Ultimately, if you end up owing the tenant more money than what the tenant owes you, not only do you have to pay the tenant, but the tenant keeps possession of the apartment.  Before taking any steps to evict a tenant, every landlord should seek professional advice.

Are you violating the law with short term rentals?

In my last post, I discussed the benefits and worries of a short term rental from a private owner.  I've been following the story about a New Yorker who participated in AirBnB's program of short term rental and found himself on the wrong side of the law.  Now, AirBnB says it will fight the New York law that got Nigel Warren into hot water.  If you are a someone who does vacation rentals, you need to pay attention to the local ordinances in your town or city, as well as condominium regulations or homeowner association rules.  I recently litigated a case where the landlord was renting to guests on a short term basis until the condominium association informed him that the practice was in violation of the condominium rules.  Some cities and towns require that the owner register the property as one which will be rented out.  For example, Falmouth, Massachusetts requires homeowners to obtain a permit from the health department before renting out their dwelling.  You do not want to run afoul of a local law and find yourself fined or worse, criminally charged simply because you were trying to cover the cost of that second mortgage.

More on Lead Paint

Last year, we wrote about  the landlords’ obligations to disclose the presence of lead paint in rental units and the penalties for failing to disclose.  Click here to see our earlier post.  In March, the Attorney General Martha Coakley’s office announced a $75,000.00 settlement with a landlord based on discrimination and retaliatory practices by the landlord in renting units with lead paint.  The settlement is reportedly the largest fair housing settlement to date while Martha Coakley has held the Attorney General position.

The landlord, who is an attorney, allegedly attempted to evict tenants with young children because he did not want to de-lead the unit.  Additionally, the Attorney General’s office alleged that the landlord failed to properly disclose the presence of lead paint in the rental units, rented units with lead paint to tenants with young children, refused to repair unsafe and unsanitary conditions, and retaliated against tenants when they reported violations to the local boards of health. 

As this recent settlement demonstrates, anyone, even an attorney,  can run afoul of the lead paint laws.  In this case, the landlord had not only civil claims against him, but claims by the the Attorney General’s office, as well.  In our prior blog post regarding lead paint, by the U.S. Environmental Protection Agency fined several management companies for its practices.  There is no shortage of ways landlords can find themselves in a bind when they fail to heed their obligations under the lead paint statutes.