You are a legal tenant whether or not you have a written lease. Many tenants do not, in fact, have written leases.
If you do plan to sign a written lease, read it carefully. A landlord may try to rush you into signing a lease. She may say that all leases are "standard" and that you shouldn't bother reading it. There may be a lot of small print and words you do not understand. Don't let a landlord intimidate you or stop you from reading the lease. Even if you are nervous or feel shy, be firm and polite and tell her you want to read the lease. You may want to bring the lease home with you and go over it with a friend or lawyer.
Is Your Lease Legal
Both you and your landlord must sign your lease. Within 30 days of signing it, the landlord must give you a copy. 9 The lease must include the following information:
- The amount of rent,
- The date on which your tenancy ends, 10
- The amount of your security deposit, if you paid one,
- All your rights concerning the security deposit, 11 and
- The names, addresses, and phone numbers of your landlord, any other person responsible for maintaining the property, and the person authorized to receive notices and court papers. 12
If a lease does not include an ending date or a rent amount, the lease will not be valid.
Should You Sign a Standard Form Lease
Many landlords use "standard form leases." While these standard leases are generally weighted in favor of landlords, you can request a landlord to either add or take away specific provisions so that a lease is more tailored to your situation. When you alter a lease—either by adding or removing provisions—make sure that both you and your landlord write your initials next to each change. A landlord may be more inclined to make changes in the terms of a tenancy either at the time you agree to rent or if it is off-season for renting apartments in the area, there are a lot of vacant units, or she wants to rent an apartment quickly.
But be careful. While a lease may look like a standard lease and a landlord may even say that it is a standard lease form, it still might have illegal clauses.
Are There Illegal Clauses
Some leases may contain illegal clauses. For example, the following clauses are illegal:
- A clause that says the tenant is responsible for making all repairs. (The law requires the landlord to make repairs, except when a tenant breaks something.)
- A clause that says a landlord can use your security deposit to pay for utilities if you don't pay for them. (A security deposit can only be used to pay for damage caused by the tenant.)
- A clause that says you must pay for electricity or gas where the service or bill is in your landlord's name. (A landlord must pay electricity or gas unless there is a meter which separately calculates the tenant's utility use.)
- A clause that says that immediately upon termination of your lease you must pay all rent due for the remainder of the term of the lease. 13 (While you may have to pay some rent if you or your landlord terminate your lease before it is over, a landlord also has a duty to find a replacement tenant for the remainder of the lease. 14 )
But don't worry—if there is an illegal clause, a landlord cannot force you to comply with it. 15 If you feel you will lose an apartment unless you sign a lease with an illegal clause, sign the lease and move in. Your lease will still be valid except for the illegal parts. In fact, you can sue your landlord for including an illegal term in your lease, even if she has never tried to enforce it. 16 However, as a practical matter, few tenants actually take their landlord to court for this reason alone.
Advantages and Disadvantages of a Written Lease
There are two major advantages to having a written lease. The first advantage is that a lease offers you more security because a landlord cannot evict you until your lease ends, unless you violate ( breach ) your lease. The second advantage is that your landlord cannot raise your rent until the term of the lease is over.
For example, if you sign a one-year lease, your landlord cannot raise the rent for a year, except through a tax escalator clause. (For more about tax escalator clauses, see the Common Lease Clauses section in this chapter.) In fact, under the law, even if you and your landlord agree to a rent increase and put this agreement in writing, the landlord cannot legally raise your rent during the term of the lease. 17
There are also several disadvantages of having a written lease. The first disadvantage is that if you move out before your lease ends, a landlord can try to force you to pay the rent until your lease ends. But, depending on the circumstances, you may not have to pay rent after you leave. Under the law, a landlord has an obligation to look for another tenant as soon as you give her notice that you are leaving. In some situations, the law also allows you to break your lease. For more information about ending your lease early, see Chapter 12: Moving Out .
The second disadvantage of having a written lease is that it may impose restrictions on you that a landlord might not impose without a written lease. For example, standard leases often prohibit tenants from having pets. Standard leases may also limit the number of roommates you can have or whether you can sublet. You can try to renegotiate these and others terms of a written lease at any point during your tenancy.
Common Lease Clauses
Most leases are not written in plain English, and, in many cases, it is not clear what certain terms mean. For example, instead of using the words "landlord" and "tenant," leases usually refer to the landlord as the lessor and the tenant as the lessee. Below is a list of the most common lease terms and clauses and what you should watch out for.
Disturbance or Improper Use Clause
This is a clause that says a tenant or any person in her apartment is not allowed to disturb other tenants or use the apartment for illegal purposes. If you are involved in a dispute with your landlord, she may try to use this clause to threaten you with eviction. If she does, try to get signed statements from other tenants which say that you have not disturbed them. 18 Also, under state law, a landlord does not have to give a tenant a notice to quit before evicting her if the tenant uses the premises for prostitution, gambling, lewdness, illegal sale of alcohol, or illegal possession or sale of drugs. 19 If your landlord tries to evict you for improper use of your apartment, you should consult a lawyer as soon as possible.
Your landlord has a duty not to disturb you, either. 20 If your landlord substantially interferes with your use of the apartment, a court may compensate you for the harm that you have suffered. For more information, see Chapter 14: Taking Your Landlord to Court .
Extension and Renewal Clauses
An extension clause says that if you or your landlord want to stop the tenancy at the end of the lease, you must give each other written notice. If you do not, the lease will automatically be extended for another year. If, on the other hand, your lease gives you an option to renew, you must give your landlord notice that you want to stay. Self-extending leases are more common than option-to-renew leases. For more information, see Chapter 4: What Kind of Tenancy Do You Have .
Late Payment Penalty and Discount Clauses
The late payment penalty clause says that you must pay the landlord more money if you do not pay your rent on time. "Late" may be defined as any time after the sixth of the month. If you pay only several days late and your landlord demands a $5 or $10 penalty, you do not immediately have to pay this penalty. A landlord has no right to a late penalty until a tenant is 30 days late paying the rent. 21
If you do not have a lease, or if your lease does not have a penalty clause, you cannot be charged a penalty even after 30 days. A landlord may also disguise a late payment penalty clause by calling it a "discount clause." A discount clause is where a lease says that your rent is $675, but that if you pay before the fifth of the month your rent will be "discounted" by $50 and you will only have to pay $625. This is illegal. 22 If you have a discount clause and the landlord tries to collect what is really a $50 late penalty, do not pay. If a landlord continues to ask you for the money, tell your landlord (in writing) that under Massachusetts law, this clause is illegal. 23
Lessee's Covenants in Event of Termination Clause
This is a clause that may make you responsible for paying the landlord for losses she may suffer as a result of your leaving early or her having to evict you. This may include the cost of getting the apartment in shape for leasing it to someone else, loss of rent for the time of your lease period the apartment remained vacant, and loss of rent if the new tenant is paying less than you were. 24 A landlord must, however, make reasonable efforts to find a new tenant and to keep her losses down. 25
Loss or Damage Clause
This is a clause that says you agree to pay back, or "indemnify," the landlord if you are responsible for an accident in the building that causes you or a guest to be hurt or your property to be damaged. This clause does not require you to pay the landlord if an injury or property damage occurs because of your landlord's negligence or misconduct. 26 It also does not stop you from being able to sue your landlord for injuries or damage to your property caused by an accident in your building. It is worth consulting a lawyer if anything of this nature happens.
This is a clause that says when and how you and your landlord must send each other notices or information. For example, the landlord must give you notice in order to end or terminate a tenancy. 27 Often, leases require that notices be sent in writing in one of two ways: (1) by certified or registered mail, or (2) by hand delivery. The landlord must print an address on the lease to which the tenant is to send notices. 28 The landlord must also accept any notice delivered to that address. 29
This is a clause that prohibits pets or requires the landlord's written permission before you can keep a pet. If a landlord tells you that you can keep your pet, make sure she crosses this clause out of the lease and writes her initials next to the clause. If you did not do this when you first moved in and you have a pet, you may be able to keep your pet if your landlord knows you have one and still accepts rent without stating that you must get rid of the pet or move. 30
Pet owners in federally assisted elderly or handicapped housing developments have a right to keep pets under rules adopted by each development. 31 If you have a disability and your pet is helpful to you with that disability, your landlord may have a duty to provide you with a reasonable accommodation by letting you keep your pet. Get a doctor's letter outlining the necessity of your having a particular kind of pet.
This is a clause that says you agree to keep the premises in good repair, "reasonable wear and tear excepted." Remember, however, that the law requires your landlord to maintain and repair your apartment in safe and sanitary condition. 32 You are required only to repair damages caused by you or your guests. For more information about repairs, see Chapter 8: Getting Repairs Made .
This is a clause that says that at the end of your lease term you must leave your apartment in good, clean, and rentable condition, reasonable wear and tear excepted. The courts have always interpreted the redelivery clause, together with the repair clause, to mean that you do not have to keep your apartment in repair at all times, but that
it must be in good condition when you move out. 33 If it is not, the landlord may deduct the cost of repairing the damage from your security deposit 34 and may be entitled to sue you for any remaining amount of money that it cost her to put the apartment back into the required condition if the security deposit is not enough to cover the damage. 35
Right of Entry Clause
This is a clause that says your landlord can enter your apartment only under the following circumstances: (1) to inspect the apartment, (2) to make repairs, or (3) to show the apartment to a prospective purchaser, tenant, or mortgagee. Any part of your lease that states other reasons that your landlord can enter your apartment is illegal. 36 Also, the law does not require you to give your landlord a key. 37
This is a clause that requires the landlord's written consent for subletting your apartment. To comply with this provision, if you sublet, make sure to get your landlord's permission in writing. 38 For more information about subletting, see Chapter 12: Moving Out .
Tax Escalator Clause
This is a clause that says that if local property taxes go up, your landlord can increase your rent. Back when taxes were going up rapidly, these clauses were one way for landlords to raise the rent. If a tax escalator clause is not written in a certain form, it may be illegal and your landlord may not be able to raise your rent. For more information about tax escalator clauses and how you might save yourself some money, see Chapter 5: Rents .
This is a clause that says how much notice a landlord must give you if she wants to evict you. A termination clause does not mean that the landlord can come into your apartment and physically throw you out. A landlord can never evict a tenant without a court's permission. 39 If your lease does not have a termination clause, your landlord probably cannot evict you until the lease expires. Under the law, there are specific rules that landlords must follow in order to evict a tenant. For more information about how much notice your landlord must give you, see Chapter 13: Evictions .
9 . G.L. c. 186, §15D. Violators can be fined up to $300. See G.L. c. 93A, §1 et seq.; 940 C.M.R. §3.17(3)(c). Failure to comply with this provision may make the lease voidable by the tenant. A party's secret signature to a lease, unrevealed to the other party, is not valid or binding. Henchey v. Rathbun, 224 Mass. 209, 211 (1916). As noted by E. Schwartz, Lease Drafting in Massachusetts §1.9 (1961), the tenant's signature on a lease is an offer that dies if the landlord doesn't sign within a reasonable period, but the tenant is bound as a tenant at will by signing.
10 . Marchesi v. Brabant, 338 Mass. 790, 790 (1959) (rescript); Berman v. Shaheen, 273 Mass. 343, 344 (1930); Murray v. Cherrington, 99 Mass. 229, 230 (1868). Exceptions to the ending date rule are some subsidized housing leases, which are leases even though they continue indefinitely.
11 . These rights are described in 940 C.M.R. §3.17(3)(b)(3); G.L. c. 186, §15B.
12 . 940 C.M.R. §3.17(3)(b)(1) and (2); G.L. c. 143, §3S; and the state Sanitary Code, 105 C.M.R. §410.481, require absentee owners to post and maintain a sign at least 20 square inches in size near the mailboxes or elsewhere inside the building, which has on it the name, address, and phone number of the owner or her manager or agent. This is not required, however, if the manager or agent lives in the building. The name, address, and phone number of the managing trustee or partner of any realty trust and president of any corporation must also be posted. Failure to do so can result in a fine of up to $50 per day.
13 . 940 C.M.R. §3.17(3)(a)(3). This type of clause is known as a rent acceleration clause and is considered to be a penalty and therefore unenforceable. Commissioner of Ins. v. Massachusetts Accident Co. 310 Mass. 769, 771 (1942).
14 . For various statements of the landlord's duty to mitigate damages, see Edmands v. Rust & Richardson Drug Co. 191 Mass. 123, 128 (1906); Woodbury v. Sparrell Print, 198 Mass. 1, 8 (1908) (landlord "owed to [the tenant] the duty to use reasonable diligence and to make the loss or damage to the [tenant] as light as [the landlord] reasonably could." Loitherstein v. IBM, 11 Mass. App. Ct. 91, 95 (1980). See also Cantor v. Van Noorden Co. 4 Mass. App. Ct. 819, 819 (1976) (rescript); but see Fifty Assocs. v. Berger Dry Goods Co. 275 Mass. 509, 514 (1931). Note that the Boston Housing Court has, at least twice, found a clear obligation to mitigate, in Bridges v. Palmer, Boston Housing Court 07326, p. 8 (Daher, C.J. May 24, 1979), and Grumman v. Barres, Boston Housing Court, 06334, p. 7 (Daher, C.J. March 1, 1979). See also Gagne v. Kreinest, Hampden Housing Court, 92-SC1569 (December 6, 1991) (a landlord who did not advertise a vacant unit in the newspaper had not mitigated her damages).
15 . Your landlord may be liable to you just for asking you to sign a lease with illegal terms. Leardi v. Brown, 394 Mass. 151, 160 (1985). See G.L. c. 93A, §9(3), and 940 C.M.R. §3.17(3)(a)(1).
16 . 940 C.M.R. §3.17(3)(a)(1). A tenant need only show an invasion of a legally protected right, not actual damages, to recover nominal statutory damages ($25) for illegal lease clauses. Leardi v. Brown, 394 Mass. 151, 160 (1985); G.L. c. 93A, §2(c).
17 . Torrey v. Adams, 254 Mass. 22, 28 (1925).
18 . Although these statements may not be admissible in court, judges will sometimes consider them, especially where the tenant is not represented by an attorney. Try to have the witnesses sign this statement as follows: " Signed under the penalties of perjury this ____ day of ______, 200 _ ."
19 . G.L. c. 139, §19.
20 . Landlord who owned a nearby cocktail lounge that disturbed tenants was found liable for breach of quiet enjoyment. Blackett v. Olanoff, 371 Mass. 714, 718 (1977). See also Humphries v. Brown, Hampden Housing Court, 90-SP1426 (July 17, 1992) (landlord violated the tenant's right to quiet enjoyment under G.L. c. 186, §14, by failing to take steps to prevent tenant's upstairs neighbor from disturbing him).
21 . G.L. c. 186, §15B(1)(c). If a lease clause requires a penalty before you are more than 30 days late, it is void and your landlord cannot collect under it even if you are more than 30 days late in paying your rent. You may not be charged for service of a notice to quit based on non-payment of rent which is less than 30 days late under Copley Management v. Andersen, Boston Housing Court, 08517, p.3 (Smith, J. November 1990).
22 . The Boston Housing Court has noted that such a discount clause "appears to be, in substance, a late fee charge which is prohibited by G.L. c. 186, §15B(1)(c)." Patriquin v. Atamian, Boston Housing Court. SP-19648-K, p.4 (King, J. August 27, 1981).
23 . G.L. c. 186, §15B(1)(c), which says that "no lease. shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due."
24 . This clause describes two types of obligations you may have to a landlord after you leave an apartment. One is called "damages." This means that as soon as you leave, the landlord may sue you for the difference between the rent you agreed to pay for the remainder of the lease and the "fair rental value" of the apartment. The other type of obligation is called "indemnification." This means that at the end of a lease, a landlord may be able to sue a tenant for the amount of money the landlord has lost because the tenant has left. Generally, the landlord cannot sue on both grounds—damages and indemnification. Gardiner v. Parsons, 224 Mass. 347, 350 (1916); Cotting v. Hooper, Lewis and Co. 220 Mass. 273, 274 (1915). The landlord's choice in this matter is critical, for it determines when one can bring suit. Commissioner of Ins. v. Massachusetts Accident Co. 310 Mass. 769, 772 (1942); Hermitage Co. v. Levine, 248 N.Y. 333, 337 (1928) (Cardozo, C. J.). A landlord must also use "reasonable efforts" to find a new tenant to keep down her losses due to having the apartment empty. Also, if a lease states that a landlord can recover attorney's fees if she sues a tenant for breaking a lease, state law says that a tenant can also recover attorney's fees if a tenant sues a landlord and wins the case, even if the lease does not provide for this. G.L. c. 186, §20. Public and subsidized housing tenants may not be charged court costs or attorney's fees unless there is an actual judgment from the court. Springfield Housing Auth. v. Oldham-King, 12 Mass. App. Ct. 935, 935 (1981) (rescript).
25 . See endnote 14.
26 . G.L. c. 186, §15.
27 . G.L. c. 186, §12. Waiver of notice to terminate tenancy in a lease is void. G.L. c. 186, §15A. The landlord has the burden of showing that the tenant actually received the notice to quit, Ryan v. Sylvester, 358 Mass. 18, 19 (1970).
28 . 940 C.M.R. §3.17(3)(b)(2).
29 . 940 C.M.R. §3.17(2)(b).
30 . You have a legal argument that your landlord has waived this clause of the lease. You should check your lease, however, to see if there is a clause preventing waivers. You can also argue that having a pet is not a serious breach of the lease. See Allen Park Assocs. v. Lewandowski, Hampden Housing Court, 89-SP9400, p. 7 (Abrashkin, J. May 8, 1989), where the judge found that management's employees knew that the tenant had a dog, and therefore management had acquiesced in the dog's presence and had waived its right to evict under the no-pet clause of the lease.
31 . 24 C.F.R. §5.300-5.380, and §960.701-960.707 set out rules for pet ownership in assisted rental housing for the elderly or handicapped, as required by 12 U.S.C. §1701r-1. Under these rules, a project owner cannot prohibit pets altogether, but must promulgate discretionary rules reasonably related to the keeping of household pets, including rules on number of pets, size and type, standards of care, and licensing.
32 . 105 C.M.R. §410.010(a); 940 C.M.R. §3.17(1).
33 . Weeks v. Welhelm-Dexter Co. 220 Mass. 589, 592 (1915). A reasonable wear and tear exception is implied in a repair clause where it was not expressly included (although the existence of a peculiar fire insurance clause makes Ball weaker precedent). Ball v. Wyeth, 90 Mass. (8 Allen) 275, 279 (1864). A redelivery clause alone implies no obligation on the tenant's part to maintain the premises in repair throughout the lease term. Ryan v. Boston Housing Auth. 322 Mass. 299, 301 (1948).
34 . G.L. c. 186, §15B(4)(iii) and (6)(e).
35 . The measure of damages is stated as the reasonable cost to the landlord to put the premises in the required condition. Corbett v. Derman Shoe Co. 338 Mass. 405, 414 (1958); Ryan v. Boston Housing Auth. 322 Mass. 299, 302 (1948). See Weeks v. Wilhelm-Dexter Co. 220 Mass. 589, 592 (1915). A landlord may be able to bring a separate court case for damages actually caused by the tenant, even if the landlord has violated the security deposit law. See also Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 7 (1987).
36 . G.L. c. 186, §15B(1)(a); 940 C.M.R. §3.17(6)(e).
37 . No statute or regulation gives the landlord a right to a key. At common law, the tenant had exclusive right to possession. Young v. Garwacki, 380 Mass. 162, 170 (1980); Strycharski v. Spillane, 320 Mass. 382, 385 (1946). According to the order of the Housing Court, a landlord must give reasonable notice (at least 24 hours) to the tenant in order to enter to make repairs.
38 . A landlord need not act reasonably in withholding assent where a tenant must obtain assent in writing to sublet under a lease. Slavin v. Rent Control Board of Brookline, 406 Mass. 458, 463 (1990). However, a landlord cannot unreasonably withhold consent if the lease says she can't. Adams, Harkness, Hill, Inc. v. Northeast Realty Corp. 361 Mass. 552, 557 (1972).
39 . The landlord must bring a summary process action to evict you and is subject to civil and criminal penalties for failing to do so. G.L. c. 186, §§14, 15F; 940 C.M.R. §3.17(5). Summary process must be used to regain possession. G.L. c. 184, §18 and G.L. c. 266, §120. The primary summary process statute is G.L. c. 239, §1.
Produced by Pattie Whiting
Created July 2008