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.

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.

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.