Frequently Asked Questions by Massachusetts Landlords

Frequently Asked Questions by Massachusetts Landlords Answered by a Housing Attorney*

Can a Massachusetts landlord, or the agent of a landlord, enter a unit without the renter’s consent?

During a tenancy, tenants must allow reasonable access to inspect and make repairs to the rented unit. A lease can define reasonable entry and reasonable notice, but when the lease is silent or the lease terms are unreasonable, courts will allow access to make repairs, show the apartment, in the last 30 days and check for damage with a 24-48 hour notice requirement.

When can a landlord enter without a tenant’s consent in Massachusetts?

When the tenancy is over or perceived over, a landlord may enter the property with a court order, within thirty days of the termination of the tenancy, or after either party has given notice of termination to inspect for damage. Additionally, a landlord may enter if the unit appears abandoned; however since the changing of locks could result in heavy liability for the landlord, that decision should only be made after consulting a qualified attorney.

I have a tenant that is not paying the rent and is causing other issues. Should I get a lawyer?

When in doubt always hire a lawyer when dealing with a problem-tenant. Problem-tenants often have significant experience within the housing court and are familiar with ways to game the rules.  An experienced housing-law attorney, like Matthew Lallier, can often save you the trip to court, months of aggravation, and will likely cost you less than you expected.  Early contact with an attorney will ensure that once you decide to proceed with legal action, you understand the significance of each step of the process and that your actions will pass judicial review.

Do landlords need a written lease? What if I do not have a written lease?

A written lease is not required to have a tenancy. It is important to remember that there are different kinds of tenancies. There are advantages and disadvantages to each kind, and your choice depends on your goals and plans for the property at issue.

A tenancy-at-will is the technical name for what non-professionals call a called a month-to-month lease. It does not have an expiration date and it is continued forward each individual month. These agreements do not have to be in writing but should be in writing for the same reason that good fences make good neighbors.

A tenancy-for-years is the technical name for what non-professionals call a lease. When the underlying agreement is for a year or longer, it must be in writing. A tenancy-at-years generally locks both parties into the landlord-tenant relationship for a set period. It binds a tenant to a set of rules and can offer protections to a landlord, but also gives the tenant the right to remain at the property through the lease term as long as he/she pays the rent on time. And abides by the terms of the lease.

If you do not have a written lease then you have a tenancy-at-will or a month to month.

How can a landlord in Massachusetts recover legal fees?

It is important to note that attorney’s fees are awarded in Massachusetts in two ways (1) by statute or (2) by contract. The statutes that award attorney’s fees are designed to “send a message” to bad landlords and do not account for protecting responsible landlords.

For a landlord to receive an award of attorney fees the landlord must have executed a well crafted lease that provides for attorney fees in the event the landlord has to go to court to enforce the terms of the lease.

What items can a landlord bill a tenant for without a court order?

The law allows landlords to take (1) first month’s rent (2) last months rent (3) security deposit not to exceed one month’s rent (4) and a deposit of fee related to keys and lock purchase.

Can a landlord take a pet deposit in Massachusetts?

The law does not provide for a pet deposit by name. However, damage caused by a pet is not part of normal wear and tear and may be deducted from an ordinary security deposit if the proper procedures are followed. Remember, the law says that the security deposit is the tenant’s money, landlords just hold it, and must protect it. Talk to a qualified housing attorney. It is essential you know your options so that you can protect yourself and your investment.

Should landlords take a security deposit in Massachusetts?

Nearly every landlord and housing attorney has a different answer for this question. It depends on your circumstances. Generally, yes. The security deposit is there to protect your investment. However, handling it requires a good deal of discipline and there is a procedure that must be followed to properly handle it and to collect it. The security deposit is your safety-net in the event the tenant abuses the property beyond reasonable wear and tear and can in some cases be used to offset unpaid rent.

BEWARE, mishandling a security deposit comes with hefty fines up to three times the deposit amount and attorney’s fees and costs. Mishandling can include: co-mingling; not paying the interest; not giving it back on time; or failing to provide a receipt -among many other issues.

It is essential that you know your options so that you can protect yourself and your investment.Contact an attorney knowledgeable in this area and fine out whether taking a security deposit is right for them.

How can a landlord get a tenant out that has not been paying rent consistently for months?

This question comes up very frequently because when a tenant has not been paying rent there are often other issues or it has been going on for some time. Often in these situations the landlord will want the tenant out of the unit and not want to continue the tenancy even if the tenant does come up with the back rent.

It is not as simple as just sending a notice to quit and a complaint.

If you have a tenant who is not holding up their end of the bargain talk to an attorney who knows the law and can advise you on the best course of action to take.

I am not sure if there is lead paint on my property and a prospective tenant has children can I just not rent to them?

This is a common situation, and it is a murky one for landlords. A landlord cannot refuse to rent to a family because of the presence or possible presence of lead paint, but renting to a family with a child could create tremendous liability exposure for the landlord.

When interviewing prospective tenants or handling applicants, a landlord should talk to an attorney who can show the landlord what questions can be asked, what questions cannot be asked, and how to address precarious situation such as this one.

What if the tenant says they are on a Section 8 subsidy, can I refuse to rent to them?

A landlord can not refuse to rent to a person because they are on a Section 8 subsidy. The penalties and fines are quite severe.

My tenants recently informed me that they are withholding rent. Can a tenant really do that?

It really depends. The law has specific requirements or criteria that a tenant must lawfully follow in order appropriately withhold rent. Ordinarily this is in response to the presence of unsanitary conditions on the property or a landlord’s failure to repair unsafe conditions on the premises. It’s the carrot tenants can and often do dangle in front of a landlord. But just because rents are withheld does not mean rents are not owed.

A tenant must notify and give a landlord a reasonable opportunity to repair before taking such a step. These conditions issues must be significant. If a tenant is withholding rent it is important that you talk to an experienced housing attorney who can advise and inform you of your rights and options as well as work with you, the tenants, and the local Inspection Services Department regarding the rents owed.

My Tenants are constantly complaining and extremely difficult to deal with. I believe I just need to terminate the lease. Can I do that?

This question is like walking into a minefield. There is a body of law established to protect tenants called retaliation. The law forbids a Landlord from retaliation against his/her tenant who exercise his or her rights or complain of conditions on the property. A landlord who institutes eviction proceedings within 6 months of a tenant’s claim will be presumed to be retaliation, and the penalties can be severe.

It is a presumption that can be overcome, but if you are a landlord that thinks you may be in this situation, talk to an attorney who is knowledgeable in this area who can properly advise you and keep you out of trouble.

*see disclaimer in footer below

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