Common Questions on Rentals answered by the staff of the MAR Legal Hotline.
Q. I have listed a rental property to sell but one of the tenants has been extremely uncooperative. He has never allowed me into his apartment for a showing and this makes it very difficult to market the property. Doesn’t the tenant have to let me in?
A. Not necessarily. As a listing agent, you do not automatically have a legal right to enter the property for the purpose of showing it to prospective purchasers. This right is established only if the lease agreement requires the tenant to grant reasonable access for showings, or if the tenant voluntarily agrees to give you access.
Massachusetts law states that during the period of a residential tenancy, the tenant shall enjoy the exclusive use and possession of the unit. The law provides, however, that leases may contain language to allow entry to prospective purchasers and tenants. Therefore, the landlord needs to review the lease and determine if it contains a clause to allow reasonable access for showings. If it does, the landlord should remind the tenant of the terms of the agreement and inform him that failure to reasonably accommodate these showings will be considered a material breach of the lease and could subject the tenant to eviction proceedings. The landlord could also seek injunctive relief in court to compel the tenant to comply.
If, however, there is no written lease agreement, or the lease does not include a provision to allow showings, then neither you nor the landlord have the right to enter the premises for showings during the tenancy if the tenant says “no.” This is just one of the many reasons it is recommended that landlords always have written leases with their tenants, even when they are a tenant-at-will.
Q: I represent a landlord and he told me that his tenant has passed away. He is asking me for advice. He has been approached by the deceased tenant’s son to move in to the apartment. What should he do?
A. The deceased tenant’s son cannot take possession of the unit without the landlord’s permission. Furthermore, the landlord should not even allow the son in to help remove his father’s personal belongings; it is possible that the son was disinherited and has no rights to the property. Technically, only a court-approved executor or administrator is allowed to take possession of the property. Therefore, the landlord should immediately speak to the appointed administrator or executor. If no administrator has been appointed, the landlord can petition the court to have one appointed, which typically takes about a month. In the meantime, the tenant’s estate remains liable for payment of the rent.
Q. I have heard from a prospective tenant that there is a requirement under Massachusetts law that a landlord provide an executed copy of a lease within 30 days in order to form a valid tenancy. Is this true? If a tenant does not receive a copy, what effect would it have on the tenancy?
A. Massachusetts General Laws, Chapter 186, Section 15D states, in part that, “a lessor who has agreed orally to execute a lease and obtains the signature of the lessee shall, within thirty days thereafter, deliver a copy of said lease to the lessee, duly signed and executed by said lessor.” This language places the burden on the landlord, or his or her agent, to ensure that the tenant has received a copy of the lease in those circumstances where the landlord has verbally agreed to the tenancy. The statute goes on to include a provision that prohibits any waiver of this requirement within the lease and also makes it possible for a landlord to be fined up to $300 for failure to comply. According to case law in Massachusetts, noncompliance with this law does not in and of itself render an otherwise valid lease unenforceable.