Created and Maintained by William F. Swiggart, of Swiggart & Agin, LLC. Located in Boston, Massachusetts, Swiggart & Agin, LLC provides legal services, including services in the areas of intellectual property law, computer law, corporate law, bankruptcy and real estate. Questions? Try the Real Estate FAQ.

The Real Estate LawTrove provides the following information about some of the legal issues that owners of real estate may encounter in renting their property in Massachusetts. This guide is not intended as legal advice. The law changes frequently as new cases are decided and statues are enacted. Consult your own attorney regarding any question you may have that is specific to your situation:

1. Introduction

Because of the many legal rights accorded to tenants under Massachusetts law, tenants that prove to be destructive, do not pay their rent, or are otherwise undesirable can sometimes be difficult and costly to rent to and then evict. It is important that all arrangements with tenants be carefully documented. Useful forms for the rental of real estate in Massachusetts may be purchased from the Greater Boston Real Estate Board Site.

2. Screen All Tenants Carefully

Other than perhaps close relatives, all prospective tenants should, at the very least, be screened with great care. Background checks are advisable. Make sure that every prospective tenant fills out a complete Rental Application, and use that as the basis for a thorough background and credit check. Retain all signed forms in a safe place, and remember: You must deliver a signed copy of the lease to the tenant

3. Security Deposit & Statement of Condition

Massachusetts law imposes many restrictions on the security deposit. See, generally, G.L. c. 186, § 15B. These include the amount (usually just one month's rent), how it must be sequestered, the conditions for withholding the security deposit in the event of damage, etc. For this reason, some small landlords avoid taking a security deposit entirely. This is often a mistake, since only problem tenants will challenge the legality of your arrangements and, as to those, you'll want their security deposit at a minimum.

If there is damage to your unit, you'll be glad you provided the tenant with an Apartment Condition Statement no later than 10 days after beginning of occupancy. G.L. c. 186, § 15B (2)(c).

4. Notice to Quit

Every landlord is entitled to terminate the tenancy of a tenant that has ceased paying rent, has overstayed a lease, or has otherwise broken the terms and conditions of a lease. G.L. c. 186, § 11A. Lease termination begins with delivery of a Notice to Quit. It is important to use a form that complies with the statute, and to be able to prove actual delivery, or the notice may be void and the defaulting tenant will have to be re-noticed. For this reason, it is advisable to hire a qualified attorney to advise you even at the Notice to Quit stage.

A tenancy without a written lease is a tenancy at will. A tenancy at will is created by default when a written lease expires unless the terms of the lease provide otherwise. A tenancy at will can be terminated, even if the rent is paid on time, by means of a Notice to Quit of thirty days or up to three months. The notice period should encompass a standard rental period.

5. Eviction

A contested eviction is almost always effected through summary process in the district or housing court. The purpose of this procedure, as the name implies, is to achieve results more quickly than is typical in civil litigation. An execution for possession may contain a judgment for back rent, as well as for damages to the premises.

Courts

Generally, jurisdiction over a complaint for eviction is taken by the court that has jurisdiction in the area where the land lies. Thus, the complaint should be filed in the district court for where the property is located., Look carefully though, to see whether your property location is also covered by one of the several subject matter, Massachusetts Housing Courts. These include:

The Eviction Process

In an eviction, the landlord files and serves a complaint, and the tenant either responds with an answer or defaults. The best eviction from the landlord's point of view is where the tenant (a) doesn't answer and (b) moves out, and this often happens. Not every eviction proceeds smoothly however. As with all litigation, summary process offers the party being sued a forum to raise defenses and counterclaims. Counterclaims do not have to be limited to the subject matter of housing, and sometimes, even a housing court may hear claims that are unrelated to housing, for example for personal injury caused by the lack of lighting in a stairwell. The landlord that is vulnerable to defenses and counterclaims can end up owing the tenant damages and also attorneys' fees. Aggressive tenants have sometimes even been known to swear out criminal complaints against landlords.

The Tenant's Defenses and Counterclaims

Some legal defenses available to the tenant are set forth in G.L. c. 186 ("Estates for Years and at Will"). These include:

The statute also spells out many and various responsibilities of landlords, the failure to observe any one of which may prove quite costly. e.g.:

Timing

It is important to understand that, by pursuing defenses and counterclaims vigorously through counsel, the defaulting tenant may delay, and possibly avoid eviction entirely during the term of the lease despite nonpayment of rent. Even in the smoothest of eviction cases though, it can take several months from the time of filing the complaint for eviction to obtain an execution for eviction. And the court may in its discretion give a tenant up to six more months' use of your property (usually in two-month increments) simply to find another apartment. This period may be doubled for aged tenants.

6. Conclusion

Unfortunately, some unscrupulous tenants have been known to use a court induced delay not only for unpaid occupancy, but also to vandalize the premises. And while an execution of eviction may contain damages for use and occupancy over and above unpaid rent, as well as the costs to repair a damaged premises. Collecting on such a judgment can prove to be problematic at best.

It is thus important for anyone considering renting out their property to remember that, even in summary process, facing a combative tenant in court can sometimes prove to be an extremely draining and costly process, both emotionally and financially. Even the most experienced landlord is therefore well advised always to build into his financial projections the contingency that an eviction may take many months, and leave one's property in a shambles without the possibility of recovering costs of repair, let alone back rent.

7. Comments

The Real Estate LawTrove seeks your comments and suggestions, especially from readers having direct experience with Massachusetts real estate.