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.