Types of tenancies
Tenant under lease
- A lease generally means a signed agreement to rent an apartment for a specified period of time and a set monthly charge
- Rent cannot be increased until the end of the lease, unless the lease states otherwise
- A tenant cannot be evicted before the end of the term, unless the tenant violates some provision of the lease
Tenant at will
- No formal lease agreement. Agreement for tenancy can be written or verbal. However, it is recommended that the agreement be written. In the absence of a written document that provides for the tenant paying utilities, the law places that burden on the landlord, despite any verbal agreements (105 CMR 410)
- Rent is paid periodically (typically monthly)
- The landlord and tenant may terminate this type of agreement one full rental period in advance or after 30 days written notice, whichever is longer
- No reason is necessary for termination of the rental agreement
- The landlord can raise rent at any time provided they send proper legal notice terminating the tenancy and offers to allow the tenant to remain in the apartment for the increased rent
If the tenancy is subsidized, you may have different rights and responsibilities than those summarized in this section. Contact the agency that provided the subsidy.
Paying the Rent
As a tenant, you have a legal responsibility to pay your landlord for the use of a place that is in decent condition. Massachusetts law also provides you with rights that protect the payments you make to the landlord.
Only a licensed real estate broker or salesperson can charge you a fee for the purpose of finding an apartment. The amount, due date, and the purpose of the fee must be disclosed to you prior to any transaction. There in no set amount to the fee, as it is a contractual arrangement between you and the licensed broker or salesperson.
Deposits: It is an unfair or deceptive practice for a landlord to demand that you pre-pay rent in excess of that allowed by law.
Late Payment Penalty: A landlord cannot charge interest or a penalty on late rent until 30 days after the due date. However, the landlord can begin the eviction process immediately, even if the rent is only one day overdue. The landlord also cannot use a reverse penalty clause to encourage you to pay early. For example, it is illegal for a landlord to reduce the rent by 10% if the rent is paid within the first five days of the month.
Rent Increases: There is no legal limit to the amount of rent a landlord can charge. However, in order for the rent increase to be valid, the landlord must provide the tenant proper notice of the raise in rent and the tenant must agree to it (signs the lease with the new monthly rent).
You are entitled to a safe and habitable living environment throughout your entire tenancy. The State Sanitary Code protects the health, safety and well-being of tenants and the general public. Your local Board of Health in the city or town where you are renting enforces the Code.
The following is a sampling of provisions outlined in the Code:
Water: The landlord must provide you with enough water, with adequate pressure, to meet your ordinary needs. Under certain limited circumstances, you can be charged for water costs so long as it is clearly noted in your written rental agreement and there is a separate meter for your unit. The landlord must also provide the facilities to heat the water at a temperature between 110º F and 130º F, however your written tenancy agreement or lease may require you to pay for and provide the fuel to heat the water.
Heat: The landlord must provide a heating system in good working order. The landlord must pay for the heat, unless your lease requires you to pay for it. From September 16 to June 14, every room must be heated to at least 68º F between 7:00 AM and 11 PM, and at least 64º F at all other hours. During the heating season, the maximum heat allowable in the apartment is 78º F.
Kitchens: The landlord must provide within the kitchen: a sink of sufficient size and capacity for washing dishes and kitchen utensils, a stove and oven in good repair (unless your written lease requires you to provide your own), and space and proper facilities for the installation of a refrigerator. The landlord does not have to provide a refrigerator. If a refrigerator is provided, however, the landlord must keep it in working order.
Cockroaches and Rodents: The landlord must maintain the unit free from rodents, cockroaches, and insect infestation, if there are two or more apartments in the building.
Structural Elements: Every landlord must maintain the foundation, floors, walls, doors, windows, ceilings, roof, staircases, porches, chimneys, and other structural elements of the dwelling so that it excludes wind, rain, and snow; is rodent-proof, weathertight, watertight, and free from chronic dampness; in good repair, and in every way fit for its intended use.
Snow Removal: Every exit used or intended for use by occupants of more than one dwelling unit or rooming unit shall be maintained free from obstruction
The Massachusetts Supreme Judicial Court ruled that when a landlord fails to maintain a dwelling in habitable condition, a tenant may properly withhold a portion of the rent from the date the landlord has notice of this breach of warrant of habitability. Rent withholding can be a useful tool to force repairs, but it is a serious step and should be dealt with carefully. You may want to get legal advice before withholding your rent since the landlord may try to evict you for non-payment of rent.
You may withhold a portion of your rent if:
- You have appealed to your landlord in writing to make the necessary repairs; or
- Your local Board of Health has inspected your apartment and found health code violations and notified your landlord; or
- You are current in your rent up until the time your landlord learns of the problem, you are not the cause of the problem, and the unsanitary conditions do not require the apartment to be vacated to make repairs.
Deciding how much to withhold is based on each situation. You need only pay the fair rent for your unit given its defective condition. Once the landlord has repaired all defects, the tenant must pay all withheld rent.
You may also make emergency repairs in an apartment or common living area and deduct up to four months future rent to pay for them, if three conditions are met:
- The local Board of Health or other code enforcement agency has certified that the present conditions endanger your health or safety; and
- The landlord receives written notice of the existing violations from the inspecting agency; and
- The landlord is given five days from the date of notice to begin repairs or to contract for outside services and 14 days to substantially complete all necessary repairs. (The inspecting agency or court may shorten this time frame.)
Remember: If you contract to make repairs and then deduct the cost from the rent, you must retain a receipt. Further, if the costs are deemed to be unreasonable, you will only be able to deduct that portion which is reasonable.
If you qualify under the requirements of "repair and deduct," you may treat your lease as void. You then have the right to move out if you choose not to make repairs. However, you must pay the fair rental value for the period you occupied the apartment, and you must vacate within a reasonable period of time.
Utility shut off rights
There are strict regulations about having your utilities shutoff. In cases when a landlord's account is about to be shut off for non-payment, the utility company must notify you 30 days before the scheduled termination. You also may be asked to pay part of the overdue bill to the utility, and deduct that payment from your rent.
Massachusetts Fair Housing law prohibits discrimination in housing on the basis of race, religion, national origin, age, ancestry, military background or service, sex, sexual preference, marital status, disability or the need of a guide dog, except owner-occupied two family dwellings. A landlord also cannot refuse to rent you an apartment because you receive a rental subsidy, because the apartment contains lead, or, with some exceptions, because you have children.
Obligation to delead the apartment
If a child under 6 lives in a residential premises containing unlawful levels of lead, the landlord is obligated to remove it.
Landlords or their agents are required to give their tenants a copy of the Massachusetts Lead Law Notification form which explains the dangers of lead paint, and the requirement to remove lead paint in apartments where children under 6 intend to reside.
If you need to remove lead paint from your property, make sure your contractor complies with the Division of Labor and Workforce Development Lead-Safe Renovation regulations (454 CMR 22.00).
Your landlord, or an agent for your landlord, may only enter your apartment for the following reasons:
- To inspect the premises;
- To make repairs;
- To show the apartment to a prospective tenant, purchaser, mortgagee or its agents;
- In accordance with a court order;
- If the premises appear to be abandoned; or
- To inspect the premises within the last 30 days of tenancy in order to determine the amount of damage to be deducted from the security deposit.
The landlord should be reasonable and attempt to arrange a mutually convenient time to visit the apartment. If the landlord insists on entering your apartment in an unreasonable fashion, you may file for a temporary restraining order at your local district court.
Rights against retaliation
Although the landlord of a tenant at will or under lease can terminate the tenancy or raise the rent without reason, s/he cannot do so in response to your exercising your legal rights. If the landlord tries to raise the rent, terminate or otherwise change your tenancy within six months of when you contact the Board of Health, join a tenants' organization, or exercise other legal rights, the landlord's action will be considered retaliation against you, unless the landlord can prove otherwise. The landlord will have the burden to prove that your tenancy was changed for reasons other than your having exercised your rights.
Breaking Your Lease
Your lease is a contract between you and your landlord. You should discuss your options with an attorney before taking any action which may constitute as breaking your lease agreement.
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