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Questions Frequently Asked About Tenant/Landlord Law

Law Office of

Pacifico M. DeCapua, Jr.

 

Telephone (508) 473-7240

FAX (508) 478-7981

 

Can a landlord refuse to rent to me if I have children?

A landlord cannot refuse to rent to you because you have children, unless the space in the apartment is insufficient under the State Sanitary Code. Some landlords do not want to rent to a tenant with children because present law requires that if a child under age six resides in the unit, the unit must be de-leaded in compliance with G.L. c. 111, 197-and this de-leading can be expensive. However, lead in the unit is no excuse, and the landlord cannot refuse to rent in this situation, but rather must de-lead the unit. The lead paint laws are presently under debate and may change.

 

How much money can a landlord require for a deposit when I sign a lease and when do I get it back?

At the beginning of the tenancy, the landlord can only require payment of the first month's rent; payment of the last month's rent, in an amount no greater than the first month's rent; a security deposit, in an amount no greater than the first month's rent; and the cost of purchasing and installing a lock and key. The last month's rent is applied to the last month of the tenancy. The security deposit must be returned within 30 days after the termination of the tenancy, except that if money is to be deducted for damages or unpaid rent, the landlord should send the tenant the notification and itemization of such deductions within 30 days.

 

What can I do if the landlord refuses to fix my apartment?

If you did not cause the damage to the apartment, and the landlord has failed to fix the problem after you asked him or her to, call the local Board of Health or the Inspectional Services Department. That agency will usually inspect the apartment and will issue an order against your landlord ordering him or her to fix the problem within a certain number of days-or a criminal action will be commenced against the landlord. If the landlord fails to contract for or commence repairs within five days and fails to substantially complete repairs within 14 days, you may treat the tenancy as terminated and vacate the unit. You may also withhold your rent until the repairs are made. If you withhold the rent, I suggest that you write to your landlord informing him or her that you are doing this. You can also put this letter in the form of a G.L. c. 93A demand letter, including claims for negligence or breach of the warranty of habitability.

 

Can the landlord enter my apartment whenever he or she wants?

Absent an agreement to the contrary, a landlord cannot enter a tenant's unit without the tenant's consent. However, if repairs need to be done, generally a court will allow access, if the access is reasonable and the landlord gives the tenant 24 hours' notice of intent to enter the unit. The landlord may include in a lease only the following rights to access:

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to inspect the unit; to make repairs;

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if the premises appear to be abandoned;

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to show the unit to prospective tenants, purchasers or mortgagees; and

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in accordance with a court order.

 

How do I prevent the landlord from charging me for damage caused by the previous tenant?

Your landlord cannot charge you for damage caused by a previous tenant. Your landlord must keep detailed records as to the damages charged to tenants. You could check these records to determine if the previous tenant was charged for the damage. If the landlord took a security deposit from you, then you should have received a statement of the condition of the unit. If you did not receive this statement, you are entitled to the immediate return of the security deposit and the landlord will be responsible for treble damages if the security deposit is not returned to you. Your landlord can still sue you for the damage but will be less likely to get involved in a court action with a dubious case. If your landlord does not return the deposit, you can commence a small claims suit and seek treble damages. The jurisdictional limit only applies to the amount of the deposit and not the treble damages. For example, if your deposit was for $1,500, you could receive $4,500 if the court found for you.

 

I am renting my apartment for the first time. Do you have a lease I can use?

You can obtain standard lease forms-for a tenancy at will, fixed term lease or self-extending lease-at any lawyers stationery store. I suggest that you buy the Greater Boston Real Estate Board Rental Housing Association lease because it is designed to comply with landlord/tenant law. Each form costs about one dollar. I also suggest that we talk about other issues such as security deposits, last month's rent and rent control-if you have some time-so that we can get started on the right foot.

 

How do I increase a tenant's rent?

You cannot increase a tenant's rent without the present tenancy terminating. If your tenant has a fixed term lease, you cannot increase the rent until the term ends. You can offer the tenant a new lease at an increased rent to commence after the lease term ends. If you have a tenancy at will, you must send (preferably by hand delivery) the tenant a notice to quit with an offer of a new tenancy at the increased rental amount. If the unit is in Boston, Brookline or Cambridge, the unit is rent controlled, and the tenant is low-income or elderly and of moderate income, you must also comply with your local ordinance and regulations to increase the rent.

 

The tenant is not paying rent. What can I do?

You should send the tenant a 14-day notice to quit for nonpayment of rent. If the unit is under rent control, you must also comply with your local ordinance and regulations to terminate the tenancy or evict for nonpayment of rent. If the tenant fails to pay all the rent due within the 14 days, you should then commence a summary process action for nonpayment of rent.

 

How do I go about evicting a tenant who is dealing drugs?

General Laws c. 139, . 19 provides that a landlord may immediately reenter and take possession of a unit if that unit is being used for the illegal keeping or sale of drugs. Many have questioned the constitutionality of this statute and unless you want to take the chance of being a test case, I suggest you notify your local police of the situation. Hopefully, they will be able to obtain a search warrant and will catch the perpetrator with the drugs in the unit. Armed with a copy of the police report and the drug analysis, you can then either commence a summary process case or file a verified complaint for injunctive relief with the local housing court, requesting that the tenant immediately be ordered to vacate the unit. Usually the court will give you a hearing on this type of civil matter within seven to 14 days.

 

The tenant left in the middle of the lease (or, I evicted a tenant through a summary process case and it appears that the tenant has moved). The tenant didn't return the keys and left some old furniture and clothing in the unit. What can I do?

If there is any doubt about whether the tenant has left, proceed through summary process. If there is no doubt that the tenant has left, and your client gives you authorization, you may consider the following. (However, realize that if you are wrong and the tenant has not vacated, you may be subject to an unlawful eviction case.) Attempt to find a forwarding address and telephone number for the tenant through directory assistance or through the tenant contacts listed on the rental application. Then send a letter to the unit, and your tenant 5 new apartment, indicating that it appears that the unit has been abandoned and that you will dispose of all items in the unit and change the locks within seven to 14 days unless the tenant contacts you before that time. The amount of time you give a tenant depends on the amount and value of the items left in the unit. I suggest that you have the letter served by a constable. If the tenant does not contact you, take pictures of the items in the unit and then dispose of these items. If the items are of any value, I suggest that you store them for a brief period of time and send another letter to the tenant confirming what you have done and again informing the tenant that you will dispose of the items by a certain date unless he or she calls you by that time. If a large amount of furniture and clothing is left in the unit and you have an execution, you might want to consider having a constable levy on the execution.

 

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Atty. Pacifico M. DeCapua, Jr.

 

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Last modified: April 2, 2013