Notes from the Attorneys of the Massachusetts Association of REALTORS Legal Hotline

Q. I have a rental listing and the owner of the unit was very clear when I took the listing that they did not want any animals of any kind in the apartment.   With that understanding in mind, I placed an ad in the local paper describing the unit and put the words “no animals” in the advertisement.   When I got into the office this morning there was a voice mail message from a nonprofit fair housing group telling me that I should change the ad immediately.   They said that the words “no animals” could be viewed as discriminatory because some people require the assistance of service animals.   What should I tell my landlord?

The most expeditious way to address this is to let the landlord know about this issue and change the ad to say “no pets”.   There are many physically challenged individuals who rely on seeing-eye dogs, hearing dogs, service monkeys and other specially trained animals.   These animals are not pets but are, in fact, service animals and more akin to an aid such as a cane or a hearing aid.   Refusing to rent to a person because they have a service animal is inconsistent with state and federal fair housing laws and can result in injunctive relief, civil damages and penalties.

Q. I am renting a first floor unit in a two family home.   A prospective tenant has called to inquire about the apartment and told me that she sometimes uses a wheelchair and, if she decides to rent the unit she will need a ramp installed.   Would the landlord have to pay for this ramp?   If they do, can the landlord just say they won’t rent to her?

Because the building contains less than ten units, the tenant would be responsible for cost and construction of the ramp.   More importantly, the landlord cannot refuse to rent to her simply because she is physically challenged and must grant permission for “reasonable modifications” to the dwelling unit.   Under Massachusetts law Chapter 151B, owners of housing with less than ten units may, where the modification to be paid for by the handicapped person will materially alter the marketability of the housing, condition permission for a modification on the tenant agreeing to restore or pay for the cost of restoring, the interior of the premises to the condition that existed prior to such modification, reasonable wear and tear excepted.

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.

Q.   Can you describe the responsibilities of a lender or bank that has recently acquired title to a home at a foreclosure auction in which tenants are currently residing?

A. In some instances, lenders may seek to have tenants vacate the building after they have taken title to the property following a foreclosure sale.  Governor Patrick and the Legislature have ensured that a tenant’s lease will no longer be immediately terminated by a foreclosure sale.  According to a new state law (Chapter 206 of the Acts of 2007), tenants who live in a property that is foreclosed on are entitled to at least 30 days written notice if a lender wants them to vacate their apartment.  Also, if a tenant receives state or federal rental subsidy, the terms of their rental agreement will not be affected by a foreclosure sale. Tenants who do not want to leave their apartments, after a lender gives proper notice, do not have to leave immediately.  They have a right to a hearing in court.  At the hearing, the court will determine how much time they will be allowed to vacate their apartment.  Lenders may not force tenants to vacate an apartment against their wishes without court approval. Additional information regarding tenant rights can be found in a new brochure published by the Commonwealth of Massachusetts. You can access this brochure by clicking on “Legal Resources” at www.marealtor.com.

Q: I don’t usually do rentals but made an exception recently for a friend. I collected a one month security deposit at the beginning of a tenancy but did not deposit it in a separate interest bearing account or provide the correct receipt. This was approximately three months ago, what is the penalty for failing to comply with the security deposit laws?

A: A landlord loses his/her right to keep any portion of a security deposit even if the tenant causes damage to the rental unit if the landlord fails to deposit the security in a separate interest bearing account. If the landlord fails to comply with this requirement the tenant may be entitled to receive damages equal to three times the amount of the security deposit or balance to which the tenant is entitled plus 5 percent interest which is calculated from the date when the payment was due to the tenant, plus court costs and reasonable attorney’s fees.

Placing the deposit is a separate interest bearing account is only a portion of the security deposit law; anyone handling rentals should be well versed on all requirements or consult a professional for assistance.

Landlord Rights and Responsibilities / Security Deposits: Prepared by the Massachusetts Association of REALTORS for Massachusetts Office of Consumer Affairs

A last month’s rent is a prepayment made at the beginning of the tenancy to the landlord to be applied to the last month of the tenancy. There is no requirement for you to escrow the money in a separate interest-bearing account. A receipt must be given at the time the last month’s rent is taken indicating the amount, date of receipt, a notation identifying the money as a last month’s rent, the name of the person receiving the money or for whom the money is being received, the description of the premises for which the last month’s rent is taken, a statement indicating the tenant’s entitlement to yearly interest at the rate of 5 percent or such lesser amount as the landlord actually receives if the landlord chooses to escrow the money, and a statement telling the tenant to provide a forwarding address by the end of the tenancy to which the interest may be sent. Upon increase of the rent, you may require the tenant to increase his or her last month’s rent to the current rent level. (M.G.L. c. 186, § 15B).

Payment of Interest On Last Month’s Rent: Interest must be paid to the tenant either on the anniversary date of the tenancy or on a pro-rata basis, if the tenancy ends before one year, for all months except the last month of the tenancy. On the anniversary date of the tenancy, the landlord must send a statement as to the amount of interest due with payment of that interest or a statement indicating that the tenant may deduct the appropriate amount from the next rental payment. If you have not sent either of the above to the tenant by the anniversary date of the tenancy, the tenant may lawfully deduct the prescribed amount of interest from the next rental payment. This deduction is not a breach of the tenancy agreement allowing eviction. If you do not pay the interest within 30 days after the end of the tenancy, or the removal of the tenant from the premises, you will be exposed to liability of three times the interest due, plus court costs and attorney’s fees. (M.G.L. c. 186, § 15B (2) (a)).

Transfer of Last Month’s Rent to New Landlord: Upon the sale, foreclosure or other transfer of the building, the landlord must transfer the last month’s rent to the new landlord with accrued interest. The new landlord must give the tenant written notice of the transfer within 45 days of receipt. If the former owner fails to make the proper transfer, s/he is still liable to the tenant, but so is the new landlord in the amount of the last month’s rent. The new landlord can discharge their duty to the tenant, by allowing the tenant to live free for a period covered by the last month’s rent.

Security Deposit: A security deposit is money, paid by the tenant to you, and held in a separate interest-bearing escrow account to indemnify you against losses due to the tenant’s failure to pay rent, failure to pay appropriate tax escalators, or if the tenant damages the premises. Because this deposit belongs to the tenant until properly applied by you, you must:

1. Hold the deposit in an interest-bearing Massachusetts bank separate from your own money;
2. Give a receipt to the tenant within 30 days of taking the deposit, identifying the bank, address, account number, and the amount of the deposit held; and
3. Pay 5 percent interest or any lesser amount of interest actually received from the bank where the deposit is held, if the tenant resides on the premises for at least one year. Said payment is to he made on the anniversary date of the tenancy.

Payment of Interest on Security Deposit: On the anniversary date of the tenancy, you must send the tenant a statement of the interest owed with a check for the interest, or you must notify the tenant that s/he may deduct it from the next rental payment. If within 30 days of the anniversary date of the tenancy you have failed to pay the interest, the tenant may lawfully deduct it from the next rent payment. Upon termination of the tenancy, you must forward the interest due to the tenant within 30 days.

Statement of Conditions: Either upon receipt of the deposit or within ten (10) days thereafter, you must provide the tenant with a Statement of Conditions, which contains a comprehensive list of all then-existing damage to the unit, which list is signed by you or your agent. The notice must inform the tenant that s/he must sign the list within fifteen (15) days of receipt or move-in, if it is correct. You must further inform the tenant that failure to re-submit the list may allow a court to view the tenant’s failure to sign as agreement to the completeness of the landlord’s proposed Statement of Conditions. You then have fifteen (15) days to sign off on the tenant’s list of damages or to send a clear statement of disagreement to the tenant. Although there are forms available for these purposes, it is recommended that an attorney or other real estate professional be consulted when taking a security deposit.

Deductions From Security Deposit: Upon termination of the tenancy, you must return the security deposit or balance thereof within thirty (30) days of the tenant’s vacating the apartment. You may only deduct for the following items:

• Unpaid rent not lawfully withheld;
• Unpaid increases in real estate taxes the tenant is bound to pay pursuant to a valid tax escalator clause in the lease; and
• Any reasonable amount necessary to repair damage caused by the tenant or their pets or guests.
• The normal wear and tear in an apartment is not a deductible item of damage.

If you deduct for damages, you must provide the tenant with a statement sworn to under the pains and penalties of perjury listing the damages for which you are deducting along with documentation showing the actual or estimated costs of these repairs such as bills, receipts, or invoices. You may not deduct for damages set out in the respective Statements of Conditions unless you made repairs to them subsequent to the start of the tenancy and they were again damaged by the tenant or persons within the tenant’s control.

If damages exceed the security deposit, you are free to sue for those as well.

Transfer of Security Deposit to New Landlord

Notice From New Owner: Within forty-five (45) days of the transfer, the new owner must notify the tenant that the security deposit has been transferred and that s/he is holding it for the benefit of the tenant. The notice must be written and must contain the new owner’s name, business address, business telephone number, and the same information for any agent.

Penalties For Failure to Properly Handle Security Deposit: If you do the following, the tenant is entitled to the immediate return of the security deposit:

• Fail to make the security deposit records available to the tenant during business hours;
• Fail within thirty (30) days of taking a security deposit to give the tenant a receipt with the name, address of the bank where the money is held, and account number of the bank in the amount of the deposit;
• Make deductions for damages without submitting the proper documentation described above; or
• Use a lease with provisions that conflict with the security deposit law and you attempt to enforce this lease or attempt to make the tenant waive his or her rights.

If you do the following, the tenant is entitled to the immediate return of the security deposit and treble damages, court costs and attorney’s fees:

• Fail to place the security deposit into a Massachusetts interest-bearing bank account separate from your own;
• Fail to return the security deposit or balance thereof within thirty (30) days after termination of the tenancy; or
• Fail to transfer the security deposit to the new landlord. (M.G.L. c. 186, § 15B).

A new landlord has the same transfer responsibilities as stated above for last month’s rent.

Continuing Liability of Former Owner: The former owner and agent remain liable under the treble damages provision of the Statute for retention and accounting, until either:

1. The security deposit has been transferred and the tenant has been given the above-written notice; or
2. The security deposit has been returned to the tenant.

The new owner has full liability for treble damages, even if the former owner fails to transfer the security deposit and fails to give the proper notice described immediately above.

It is recommended that if you choose to take a security deposit, you consult an attorney or other real estate professional before doing so, because the penalties for failing to properly handle the tenant’s money are severe.

Copyright 2005 Massachusetts Association of REALTORS. All Rights Reserved.

 

REALTORS® should seek legal advice for assistance. For additional questions, authorized members may contact the MAR Legal Hotline, weekdays, from 9 a.m. to 1 p.m., at 800-370-5342.

Notes from the Attorneys of the Massachusetts Association of REALTORS Legal Hotline

Q: Who is responsible for removing snow and ice from a rental property? Can I require the tenant to remove snow and ice from the property in the lease?

A: The short answer is the landlord is responsible. Many landlords attempt to pass this responsibility onto their tenants by writing a provision into their leases. This practice, however, may not protect the landlord from liability. The Massachusetts sanitary code provides that the “owner shall maintain all means of egress in a safe, operable condition” and that all “exterior stairways, fire escapes, and egress balcony, shall be kept free of snow and ice.” Massachusetts law also provides that any provision in a rental agreement which waives the protections given by the sanitary code is void as against public policy. Taken together it would appear that the landlord cannot assign this responsibility in a lease, however the law is unclear on the matter.

The sanitary code does not cover driveways or sidewalks; therefore, logic would suggest these could be assigned into a lease. If a landlord decides to form a side agreement with a tenant to compensate them for snow and ice removal they should carry workers’ compensation insurance as these tenants are now employees of the landlord.