HOW TO BE A LANDLORD IN MASSACHUSETTS AND AVOID LEGAL TROUBLE

By A. Joseph Ross., J.D.
Revised, March 2007

CONTENTS

Introduction

            In many years of practicing landlord-tenant law, mostly, though not always, as a tenant advocate, it has become clear to me that many landlords, especially small property owners, don't fit the stereotype of the evil landlord. More often than not, they cause trouble for their tenants and themselves simply because they don't know their legal rights and obligations.

            If you are like many small property owners, you've probably assumed that there was nothing to renting a unit but finding a tenant and collecting the rent.

            Guess again. Most of us heard at an early age that ignorance of the law is no excuse for violating it. But all too often, the small property owner winds up in the lawyer's office only after getting in trouble. When that happens, all a lawyer can do is try to cut your losses. Please review these materials and consult with your attorney if you have any questions. The best time to learn about these things is before you have a problem. My long experience has shown that better informed landlords are better landlords and have better tenants. This guide is a summary of things you may not know that can hurt you. Many of the same things also hurt your tenants.

            Most of the time, your tenants want nothing more than to enjoy their apartment, pay a reasonable rent, and go about their lives. But economic hardship can drive some people to desperate measures. And, the Landlord from Hell that they had last year may have destroyed their ability to trust you and made them all too willing to try to get the edge before you do. There are also, unfortunately, bad tenants in the world. I cannot tell you how to absolutely avoid getting a bad tenant. But I can tell you how to improve your odds immeasurably. And if you do get the Tenant from Hell, I can help you to minimize the damage and, if necessary, get rid of the bad tenant as quickly and inexpensively as possible. I can also help you to have good tenants, to be a better landlord to your good tenants, and to encourage them to continue to be good tenants.

            This guide is based on Massachusetts law. In many instances, the laws are similar in other states, but there are no guarantees. Many situations are very complicated. This booklet does not constitute legal advice and is no substitute for individual legal advice by a competent attorney who is familiar with the landlord-tenant laws of your state and with all the details of your situation.

AJR

1. Some Basics

            Whether you own a large apartment building or a single rental unit, you must treat the business of being a landlord as just that: a business. This means that you must act in a businesslike manner at all times. Even if your tenant is a friend and neighbor, you must be certain to treat the business relationship as a business relationship. This does not mean being unfriendly, but it does mean keeping proper records and dealing with things in a businesslike manner.

            Large landlords can afford to have lawyers on retainer and fight lawsuits on a regular basis. But most readers of this guide are small landlords. As such, even one lawsuit can cost you a great deal in legal fees, aggravation, and lost rent, even if you win. But legal information is not enough, by itself, to avoid legal trouble. You also need certain business policies. Since you cannot afford a lawsuit, you must try to keep your tenants from wanting to take you to court. This is easier than it seems.

            Most businesses in our society have a fundamental rule: The customer is always right. Much of the acrimony between landlords and tenants arises because people in the rental housing business all too often forget that rule. If you are dissatisfied with your purchase at a local department store, they will give you a refund with a smile. They would never say, If you don't like it, don't shop here. A department store would never try to get rid of a customer for complaining. Yet many landlords do exactly that. Your tenant is your customer, and a satisfied customer doesn't bring lawsuits.

            This doesn't mean you have to comply with every request. It does mean that you should try to respond promptly to reasonable requests. It means being friendly and courteous. If you approach your tenants with a chip on your shoulder, you shouldn t be surprised if they respond in kind. Much of the secret of getting along with tenants is nothing more than the secret of getting along with people in general.

            This may also mean not charging the absolutely highest rent that you think you can get. It can be well worth your while to keep the rent a little lower than market in order to keep a good tenant.

2. Keep a Paper Trail

            If you learn nothing else from this guide, learn to keep good written records. Roughly six thousand years after the invention of writing, in a society with almost universal literacy, many people are inexplicably reluctant to keep written records of even the simplest things. As we said in the previous chapter, even if you own only one rental unit, you must operate in a businesslike manner.

            Maintain a file for each tenant. Keep in it a rent ledger, copies of the lease, correspondence between you and the tenant, security deposit and last month's rent documents, and any other relevant documents.

            An important part of keeping a paper trail is keeping clean documents. We often see documents from clients on which they have written their own notes, hi-lightings, random phone numbers, or doodles. Courts want to see clean documents, preferably originals. If you must mark up a document, make a photocopy and make your notes on that. Don't mark up the originals. The original of the letter from your tenant is not a good place to write your notes. If you take pictures, don't write descriptions directly on the pictures. Keep your notes separate. Your own notes on a document may make the document inadmissible in court.

            Your rent ledger should show the day the rent was received (not just the posting date), the check number, the amount, and the name of the account the check is drawn on or who paid the money. This is important. If a group of tenants sharing an apartment pay in multiple checks, your records should show the amount of each check, the date it was received, and the person who wrote it. In a dispute over rent, the winner is often the person with the better rent records.

            Pay attention to the distinction between a last month's rent and a security deposit, and make sure that any receipt that you give for these deposits states the purpose correctly. Generate the proper documentation for these deposits and keep copies in the tenant's file.

            It is important to communicate with tenants in writing. Even if you communicate orally, you need to send a letter confirming the conversation in writing. Landlord-tenant disputes often turn on variant interpretations of the same conversation. When you write a letter, be sure to spell everything out in detail. Your letter to your tenant isn't just for the tenant. It's also for your own records, to refresh your memory years later, and, if necessary, to show a court. Date each letter and keep a copy. If you deliver letters personally by sliding them under the apartment door, note the date and time you did so on your copy. You should also save the originals of all correspondence you receive from the tenant. Note on each document the date you received it. If you correspond by fax, be sure to print out and save a transmission record for every fax that you send. We have seen judges refuse to admit a fax communication into evidence without a transmission record.

            It is still useful to keep hard copies of all correspondence. If you fax by computer, print out and save a hard copy of every fax with the transmission record. If you use e-mail, print out and save every e-mail to and from each tenant. Be sure that the header on the printout contains the basic information of to, from, subject, and date. We've seen some e-mail software which omits this information on printouts. Write any missing information on the printout as soon as you print it out. If you do keep electronic copies, be sure to make regular backups and make sure that each document contains a hard date.

            If you learn that a tenant is violating the lease, send the tenant a letter demanding that s/he cure the violation promptly. State in the letter that any future rent will be accepted without waiving your right to insist that the violation be cured. If your tenant can show a court that you accepted rent, month after month, while knowing of a lease violation, and without reserving your rights, the court may find that you have waived your right to complain about the lease violation.

            We once saw a case where a tenant moved out, turned in the keys, left some property in the apartment, and then, a month or so later wanted the apartment back. He brought suit in Housing Court, claiming that he had been illegally evicted, without judicial process. This could have been prevented by a paper trail, preferably something from the tenant in writing about his moving intentions. Failing that, the landlord might have written letters to the tenant about the impending move or kept a record copy of a receipt given the tenant for the keys he turned in.

            Keep a tickler system to keep track of lease expirations and notice dates. If you use leases with automatic renewal clauses (which we don't recommend), this is particularly important unless you enjoy the frustration of a self-extending lease that has just extended itself automatically for another year at the old rent!

            As a property owner, you have probably already learned the need to keep careful records of operating expenses for tax purposes. Before the repeal of rent control in Massachusetts, these records also were important in justifying a rent increase. That may still be the case if you own property subject to a subsidy program which regulates rents.

            When you talk to anyone at any business or government agency, get the name of the person you talk to. "Somebody in the office told me..." has little credibility. If anyone won't give you their name, ask for someone who will.

            A casual, informal system of recording and responding to tenant complaints is a lawsuit waiting to happen. Document tenant complaints, work assignments, repairs made, and denials of access for repairs in an organized way. The more organized your records, the more credible your presentation will be, if necessary, before a court or administrative agency.

            The book How to Keep a Paper Trail by A. Joseph Ross is available from us or online from Polaris Press at www.polarispress.org.

3. Use Written Agreements

            There are two reasons for using written agreements. The first is that an oral agreement is only as good as the memory and the honesty of the parties to the agreement. With a written rental agreement, you can spell out without ambiguity, and without fear of later memory lapses, the terms of the tenancy and who is responsible for what. This is part of keeping a paper trail.

            The second reason for using a written agreement is to take advantage of explicit provisions defining the terms of the tenancy. For example, if you have a written agreement, you can restrict the tenant's right to sublet. Without express provision in writing, the tenant has virtual carte blanche ownership of the apartment during the tenancy.

            Unless the contract says otherwise, the tenant has the right to bring in new occupants without your approval. The tenant has the right to have pets unless there is a written agreement to the contrary. Surprisingly, there is no law entitling you to a key to the apartment. If you want the right to a key, and to restrict the tenant's right to change locks, you must reserve that right in a written agreement.

            Under provisions of the State Sanitary Code, you are responsible for paying for the fuel for heat and hot water. You can only require the tenant to pay for heat and hot water in a written agreement. Small, nonprofessional landlords renting unheated apartments by oral agreement have been sued successfully for tenant's heating fuel costs.

            Make sure that the rental agreement reflects reality. Your ability to enforce lease provisions depends to a great extent on the lease provisions relation to reality. For example, the standard RHA lease forms provide that only the persons named in the agreement can occupy the apartment. If you intend to enforce that provision rigorously, make sure that all persons, including children, who are going to occupy the apartment are listed somewhere in the lease. Otherwise, you create an ambiguity which may work against you.

            The other side of making sure the written document reflects reality is that you should be sure to follow your own rules. That doesn t mean you need to be a stickler to the point of fetish, or never make exceptions or forgive lapses, but you will have fewer problems with tenants if you communicate, by your own actions, that you mean your rules and expect them to be followed.

            If you are going to allow the tenant to have a pet, delete or alter the clause in the standard lease form which prohibits pets. If it says that you must give your permission in writing and you intend to give permission, give it in writing. If you are allowing the tenant to have a washing machine, air conditioner, or waterbed, make sure that the standard lease clause prohibiting those items is crossed out. Make sure that all changes are made on all copies of the lease. You and the tenant should both initial each change.

            Make sure, when you meet with the tenants, that the broker didn't tell them that some lease clause which is important to you doesn't really matter. Brokers may say that you don t really care if the tenant has pets, or the no-smoking clause is just there for insurance purposes, etc. This happens all too often and causes no end of headaches for both landlords and tenants.

            Make sure it is clear what is included in the rent. The agreement should accurately reflect whether heat, hot water, electricity, and gas are included in the rent or are to be paid for separately. If you are making additional charges for parking or recreational facilities, make sure the agreement says so. If you are providing parking, make sure the clause to the contrary in some lease forms is altered accordingly.

            Make sure all the blanks have been filled in correctly. Make sure the tenant initials the rent clause where provided. If you are relying on a tax escalator clause, make sure that it is filled in correctly, with the correct tax years and with the correct percentage, in figures, not simply the word proportionate.

            Make sure that all paperwork is complete before you give the tenants the keys and let them move in. We've seen too many problem tenants who never signed a lease before they moved in and refuse to do so afterwards. This includes any forms required by the bank for escrowing deposits. If you collect rent and let the tenants move in before the lease is signed, you have created a tenancy at will. We recently heard of a prospective tenant who was given a key to measure rooms, moved some possessions into the apartment, and tried to claim a tenancy. Let a prospective tenant measure rooms with you or the broker present.

            If you are renewing a lease, make sure that a new lease or lease extension is signed before the old lease expires. Once the tenant has held over after the expiration of the lease, a tenancy at will can be created if you accept rent.

            If an oral tenancy at will is created, you can lose the benefit of having a written rental agreement. If you find yourself with tenants who have moved in without completing the paperwork or with tenants who have held over their lease, be careful how you accept rent. See the chapter on Types of Tenancies and accept rent in the manner described there for tenants at sufferance.

            If you listed the apartment with a realtor, and the realtor prepared the lease, be sure you go over it, with your lawyer if necessary, to make sure that it reflects your understanding of the arrangement. Just because someone else prepared the lease doesn't make it any less a binding contract.

            It is not uncommon for a landlord to offer tenants a rent discount in exchange for doing snow removal, taking out the trash, or fixing up the apartment. Often, the rent discount isn't spelled out, it exists only as a lower rent figure in the lease. Since these things are your responsibility as landlord, the tenant can then refuse to do them and still insist on paying the rent set forth in the lease. You can't condition a lease on the tenant's willingness to do what is your responsibility as a landlord.

            However, you can agree, in a separate written agreement that the tenant will perform certain services in exchange for payment. The payment may take the form of a rent deduction. Then, if the tenant doesn't do what s/he agreed to do, or doesn't do it properly, you can simply terminate that agreement and stop accepting the rent deduction. Make sure you keep records of the amounts involved. If you have such an agreement and you pay or credit the tenant more than $600.00 in any calendar year, be sure to send the tenant IRS form 1099-MISC.

4. Screen Tenants

            Good tenant relations starts with your choice of tenants. It's hard to evict tenants, even for non-payment of rent. It's much easier not to rent to a problem tenant in the first place.

            You should have each tenant fill out an application. A simple form is available from the Greater Boston Real Estate Board/Rental Housing Association, whose address appears at the end of this guide. Be careful not to ask for irrelevant or unlawful information, such as race, religion, age, or sex, which could give rise to a discrimination claim. If you have access to a credit reporting agency, do a credit check and speak with the present and previous landlords and work references.

            But beware. Landlords are sometimes hesitant to speak about a problem tenant. The current landlord may have a special incentive to give a glowing recommendation to a tenant he or she wants to get rid of. A more useful reference may be the landlord before the current one, who will have less reason to be untruthful. Ask specific questions. Did the tenant pay all rent due? On time? Did they keep the apartment clean?

            Check sex offender registries. If you rent to a registered sex offender, you may be held liable for any injuries which the offender causes to other tenants or neighbors. The rules keep changing, but if you can get access to criminal records, check them as well.

            Despite all your efforts, no system is perfect, and some problem tenants may slip through the cracks. One answer is to rent to someone responsible who is known to you or your friends. Lowering the rent to get a responsible tenant can pay off by saving you unpaid rent, broker's commissions, and legal fees not to mention aggravation. Once you find good tenants, keeping rent increases moderate will help you keep them. Remember this rule about investments: The higher the return, the higher the risk.

            Students, especially undergraduates, are a particular problem. At best, they may be in their first apartment and not know how to take care of the place or how to be considerate of neighbors. They may simply not realize that their loud stereo at 3:00 AM disturbs other residents. At worst, they may hold weekly keg parties and do extensive damage to your property. Many landlords have found that, in general, undergraduate students and working people simply do not mix in the same building.

            There are now tenant screening services who will provide credit, prior landlord, and reference checks on tenants. Some check court indexes to see if a tenant has been involved in legal proceedings with a prior landlord. These services are generally less expensive than the cost of evicting a problem tenant. But they must be used with judgment. A tenant who had a bitter dispute with a bad landlord may appreciate a good landlord and go out of their way to be a good tenant in return.

            One professional landlord we knew of advised trying to sign a new lease in the tenant's kitchen. He felt, with some justification, that he could learn valuable information about new prospective tenants by seeing how they kept their kitchen. Seeing a prospective tenant's current living quarters isn t a bad idea.

            A special problem arises when you buy a building with tenants already there. It's usually best to try to meet the tenants before you sign an agreement. Then ask the seller for information about them and decide whether you want to buy a building with those tenants in it or find out whether they are moving soon. Any representations by the seller about tenants (or anything else, for that matter) should be written into the purchase and sale agreement. You have good reason to be suspicious about any representations that the seller doesn't want to put in writing.

            Ultimately, the decision on whom you should rent to is up to your own judgment. One landlord we knew had a blanket rule against students. But if he met the students and believed that they would be responsible tenants, he would make an exception. No rule is absolute. Keep your eye on the goal: to have tenants who will take care of your property, get along with their neighbors, and pay the rent on time.

            A special word about real estate brokers: Some are competent. Some are honest. Some are both honest and competent. Unfortunately, some are neither. If you list a rental with a broker, make sure you meet with the tenant yourself. Not only do you want your own chance to approve the tenant, but you want to find out what the broker promised in your name. Some of the most intractable landlord-tenant disputes have to do with things the broker promised the tenants but never told the landlord! Others arise because the broker told the tenant that certain lease clauses, such as no pets or no smoking in the apartment, don't really matter or mean what they say.

5. Utilities

            The State Sanitary Code provides that you can only require a tenant to pay for utilities if the utilities are separately metered, through meters which serve only that tenant's unit. You cannot, even inadvertently, make the tenant pay for utilities for any other part of the building. In some small buildings, it is common for basement or hallway lights, outlets, or laundry facilities to be metered to the unit once occupied by the owner and now occupied by a tenant. When you acquire a building, have the gas and electric service checked to make sure that the metering is proper. Otherwise, you could find yourself reimbursing tenants for their electric or gas bills.

            There is one exception. In a building of three or fewer units, a light fixture in a common hallway may be metered to a unit on the same floor provided that the rental agreement explicitly states that the tenant is responsible for paying for that light and the owner notifies the occupants of all other units. These requirements are strict and must be observed to the letter. For that reason, we recommend that you straighten out the metering, rather than trying to rely on this exception.

            The best arrangement is to have common area electricity hooked to a separate public meter. This is not expensive and permanently solves the problem.

            An agreement for the tenant to pay for fuel for heat and hot water must be in writing. When the agreement is not in writing, tenants have been known to sue the landlord for all funds the tenant has expended on fuel. Under the most recent decisions of the Massachusetts Appeals Court, your liability in such cases is usually limited to $25.00 if the tenant has verbally agreed to pay for fuel and there was no actual misrepresentation or cross-metering involved. But if the tenant can convince the court that he or she was deceived in some way, you could be liable for considerably more. Even if the tenant is only awarded $25.00, you can also be ordered to pay the tenant's attorneys fees, which may be substantial. The safest course is to have the agreement in writing. The consequences of violation can be expensive.

6. Water Charges

            Until recently in Massachusetts, it was unlawful for a landlord to charge a tenant for water. Legislation enacted in 2004 now allows a landlord to charge tenants for water and sewer usage, provided that the very detailed requirements of the law are followed carefully. A landlord who does not follow all requirements exactly may be unable to charge tenants for water and may even be required to refund to tenants all charges already collected.

            The requirements include the installation of submetering devices for each unit in the building and any common-area water usage, so that each tenant can be billed for only his or her own water usage, the installation of low-flow water conservation devices, and certification to the local code enforcement agency. The tenant must be a new tenant in that unit who has signed a written rental agreement that clearly and conspicuously provides for separate water charges and fully discloses the details. The previous tenant must have vacated the unit voluntarily or been evicted for nonpayment of rent or for breach of lease or noncompliance with a rental agreement for the dwelling unit, and the new tenant must not have relocated involuntarily from another dwelling unit in the same building or building complex. For further information, please see the document Charging Tenants for Water, which appears at the end of the printed version of this pamphlet.

7. Housing Discrimination

            Under state and federal law, you cannot discriminate against prospective tenants based on race, religion, color, national origin, sex, sexual orientation, age, ancestry, marital status, or because a person is a veteran or a member of the armed forces, blind, hearing impaired, otherwise handicapped, or has children, or because of a person's source of income.

            Discrimination includes refusing to rent, setting different rental terms, providing different services or facilities, stating falsely that an apartment is unavailable, and advertizing or making any statement which indicates a preference based on race, religion, color, etc.

            The "source of income" rule sometimes causes confusion. You cannot refuse to rent to a person because that person receives any form of public assistance. But you may refuse to rent to someone because, regardless of source, his or her income is not enough to be able to afford the rent. You must take care to apply the same standard of affordability to everyone, regardless of the source of their income. Here again, careful record-keeping can avoid problems.

            Take care what you tell people when you turn them down for an apartment. If you tell them you're turning them down because you don't take subsidized tenants, or you don't take children, you're asking for a lawsuit. If you apply a neutral standard which applies to all prospective tenants, you can explain that the rent is too high for their income, and you don't think they can afford the apartment. A common rule of thumb is that no tenant should be paying more than one-third of his or her monthly income in rent. Verify income. It may come as a surprise to you, but some people lie (Really!).

            In general, you may not refuse to rent to a tenant because the tenant has children. This creates a problem for many small property owners because of the dangers of lead paint and the high cost of de-leading. Your liability insurance carrier may also pressure you to avoid renting to families with children. But since discrimination is against the law, you must find other ways to protect yourself from liability. See the chapter on lead paint for more details.

            Under state law, you may refuse to rent to a tenant with children in an owner-occupied two-family dwelling or in a dwelling containing three or fewer apartments if one apartment is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. For this purpose, an elderly person is someone age 65 or over, and an infirm person is one who is disabled or suffering from a chronic illness.

            You may also refuse to rent to a tenant with children in a temporary rental of a single unit for a period of one year or less if you are the owner or tenant of the unit and usually occupy it as your principal residence.

            Although you cannot refuse to rent to anyone because of their sexual orientation, the law explicitly allows you to refuse to rent to anyone whose sexual orientation involves minor children as the sex object.

8. Disabled Tenants

            Both state and federal law prohibit discrimination against tenants with disabilities. This is a difficult area because it is not sufficient just to treat all tenants or rental applicants equally. The law also requires you to treat some people differently by making reasonable accommodations for a tenant who has a physical or mental impairment which substantially limits one or more major life activities. Some examples are hearing, mobility and visual impairments ,alcoholism, mental illness, mental retardation, or AIDS.

            The really hard question is what is a reasonable accommodation. The answer depends entirely on the situation. If a tenant needs a wheelchair, you must install a wheelchair ramp because you can do so easily and inexpensively. An elevator, on the other hand, may not be reasonable. If you have a no pets policy, you must make an exception for a guide dog. If you have to make changes to the physical facilities, you can condition any changes in the physical facilities on the tenant's agreeing to restore the property to its original condition when the tenant moves out, provided that the requirement is reasonable.

             Reasonable accommodation does not mean that a person with a disability is excused from complying with the basic obligations of a tenancy. But it does mean that they can have help or can comply in a manner different from other tenants. The law does not require you to rent to a person who directly threatens the health or safety of others or who is currently using illegal drugs.

9. Lead Paint

            By law, you can be held responsible for the presence of lead paint in a unit sometimes even if you did not know it was present. You can even be held liable for lead poisoning in a child who regularly visits your tenants. For this reason, it is important to find out all you can about lead paint when you are negotiating to buy a property. Ultimately, de-leading properties as soon as possible is the only completely effective way to deal with lead paint issues. When you are considering a purchase, figure the cost of de-leading into your budget. Cities and towns often have programs, including loans and grants, to provide financial assistance for de-leading. This can both increase the value of your property and, if done properly, eliminate lead paint as a source of problems.

            If a child under age 6 resides or will reside in the unit, the unit must be de-leaded completely. You cannot refuse to rent to a tenant because the tenant has children and the unit contains lead paint (see the chapter on Housing Discrimination). Since the tenant must vacate the unit while de-leading is taking place, you may also be required to pay for the tenant's temporary lodging during de-leading.

            At the same time, you may not be able to afford to de-lead. Some landlord lawyers suggest that you try to market the unit only to friends or relatives without children. But there has been no court ruling on whether this is legal, and it may violate anti-discrimination laws. Furthermore, you can be liable if a childless tenant has visitors (such as grandchildren or other relatives) who get lead poisoning.

            If no one has suffered lead poisoning yet, you can delay complete de-leading by developing an emergency lead management plan and obtaining a Letter of Interim Control from a licensed inspector. The inspector must do an inspection and determine if any urgent lead hazards are present, such as chipping and peeling lead paint; lead dust; or structural defects, such as roof or plumbing leaks or deteriorating windows. that could cause damage to lead-containing surfaces.

            If these or any other urgent problems are found, you will have to abate or contain them and have a re-inspection before you can get a Letter of Interim Control. You must provide your tenants with educational materials and notices from the Department of Public Health as part of the emergency lead management plan.

            A Letter of Interim Control is valid for one year and can be renewed for one more year. After that, you must de-lead completely and obtain a full Letter of Compliance. The Letter of Interim Control can be rescinded if you fail to maintain the required standards of lead control.

            If your tenant has been withholding rent because of lead paint violations, you can ask the court to order that the withheld rent be applied toward the de-leading costs. But if the tenant is also withholding rent because of other code violations, only the portion attributable to lead violations can be applied to de-leading. This is a new law, and we expect a lot of litigation before its meaning becomes clear.

            A revised lead law effective in April 1994 authorized new regulations which now allow encapsulating, rather than removing, lead. All lead-removal must be done by a certified de-leader and inspected by a certified lead inspector. Since these are private contractors, their quality varies, and there is danger of collusion between lead inspectors and de-leaders, so that an inspector may pass a unit which still contains unlawful levels of lead. This can result in further problems for you down the road, when an apartment you thought was lead-free turns out to need de-leading all over again. If possible, you should try to get a town or state inspector to verify the results of the final de-leading inspection. New technologies and increased sensitivity to the cost of de-leading are producing new ways to alleviate the financial burden of de-leading.

            Since de-leading is never complete, and regulations keep changing, you need to inspect a de-leaded unit regularly, and particularly before a new rental, to see that it is still in compliance with current regulations. Any records of de-leading and inspections should be kept permanently and passed on to the next owner.

10. Financial Aid for De-leading

            You can get some help from the state with the cost of de-leading. Massachusetts provides a state income tax credit equal to the cost of de-leading or $1500.00 per dwelling unit. There is also a credit for the costs of interim control de-leading measures in the amount of $500.00 or one half the cost of the interim control measures, whichever is less. The amount of the credit for interim controls applies to the total limit of $1500.00. Only residential properties qualify for the Lead Paint Credit.

            The Lead Paint Credit covers work done in actually de-leading contaminated areas. De-leading, for this purpose, means the removal or covering of contaminated paint, plaster, or other materials that could readily be accessible to children under six years of age. Only costs incurred for legally required de-leading qualify for the credit. Costs of repainting or refinishing de-leaded surfaces are not eligible for the tax credit.

            In order to take the Lead Paint Credit, you must be the owner of the premises and meet the following requirements:

            You are entitled to take the Lead Paint Credit in the taxable year in which the property was brought into full compliance or in the year in which the payment for the de-leading was made, whichever is later. To take the credit, you must complete and file Massachusetts Schedule LP and attach a copy of the Letter of Compliance or Letter of Interim Control.

            If the lead paint credit is greater than the amount you owe on your state taxes for the year, you may carry over the balance into the next year, continuing for up to seven years. In order to take advantage of the credit, you must follow certain procedures strictly. For further information, call the Massachusetts Department of Revenue at 617.727.4545 or 800.392.6089.

            The Massachusetts Housing Finance Agency administers a program called Get the Lead Out, which provides low-interest loans to de-lead homes with one to four dwelling units. For more information, call the MHFA Office of Single Family Programs at 617.451.2766.

            Some cities and towns also administer grant or load programs for de-leading. Call the Community Development Office or housing agency in your city or town.

11. Lead Paint Notification

            Effective 1 September 1995, you must provide all prospective tenants with an official notice outlining the hazards of lead poisoning on a form prepared by the state Department of Public Health. You must enclose a copy of the most recent lead inspection report for the unit if there has been one, a Letter of Interim Control if intermediate steps are being taken to control the lead paint, or a Letter of Compliance indicating that any necessary de-leading measures have been taken. Tenants must be asked to sign a statement certifying that they have received these materials.

            Between 1 December 1995 and 1 December 1996, you were also required to provide these same materials to all existing tenants. If you have not done so, do it now. This is required whether or not the tenants have children under the age of 6. Tenant notification forms can be obtained free of charge from the state Department of Public Health. We also have forms available for our clients. The tenant notification can also be included in a written lease and has been incorporated into some standard form leases.

            This notification requirement parallels the tenant notification requirements under Title X, a comprehensive federal lead poisoning prevention law signed by President George H. W. Bush in 1992.

            If you fail to comply with these provisions, you will be liable for all damages caused by the failure to comply and will be subject to a penalty of up to one thousand dollars. A violation by any person engaged in trade or commerce is also considered an unfair and deceptive act or practice under the consumer protection law, giving rise to potential liability for treble damages plus attorneys fees.

12. Rent Control

            As a result of a statewide ballot question in 1994, rent control ended for almost all tenants on 31 December 1996. Certain subsidized apartment complexes still have their rents regulated by HUD or by the Massachusetts Housing Finance Agency (MHFA). There are also about a dozen communities in Massachusetts that still have rent control for manufactured home parks only. There are still rent limits in various subsidy programs.

13. Rent Subsidies

            There are a number of rent subsidy programs in existence, but the principal program is administered under Section 8 of the United States Housing Act of 1937, and the other subsidy programs work in a similar fashion. Section 8 subsidies are administered by local housing authorities, certain private nonprofit organizations, and the Massachusetts Department of Housing and Community Development. These agencies are called Public Housing Agencies, or PHAs. The tenant goes to the PHA and, if qualified for assistance, is generally placed on a waiting list until a voucher is available.

            Eligibility. Eligibility is based on the family s total gross income. At least 75% of all vouchers issued by a PHA must be targeted to households whose total income does not exceed 30% of the area median income, as established by HUD.

            PHA Jurisdiction. A Housing voucher from any PHA may be used anywhere in Massachusetts. As a result, you may find yourself dealing with a local housing authority in a community other than the one where the housing is located. Some local housing authorities attempt to require a tenant to use the subsidy in their own community, but federal court rulings have held that the entire state is within the jurisdiction of any PHA in Massachusetts.

            Housing search. A tenant who receives a voucher then has up to 180 days to locate rental housing which qualifies. The tenant s present apartment may qualify, and this may be a way to salvage the situation if you have a good tenant who has become unable to pay the rent. Once housing has been found, the voucher holder submits a Request for Tenancy Approval form to the PHA. The PHA then determines the eligibility of the apartment and the appropriate rent and determines the subsidy amount. If the housing fails to meet program requirements, the 180-day clock will be restarted, and the tenant resumes searching for housing that meets the requirements.

            Inspection. Part of the process for qualifying an apartment includes an inspection by a representative of the PHA to determine if the apartment meets HUD s Housing Quality Standards. The PHA will report on what repairs you must make to bring the apartment up to their standards. You must make those repairs before the voucher holder can rent the apartment. A similar inspection will occur annually so long as the subsidy continues.

            Lease. Once the apartment is found to meet all Section 8 requirements, the tenant signs a lease with the landlord. You also enter into a Housing Assistance Payment (HAP) contract with the PHA. It is important to review these documents and, as with all written contracts, make sure that they reflect the verbal understandings. In particular, make sure that provisions on who pays for which utility are correctly filled in.

            Rent Payments. The PHA will determine what the market rent should be for the apartment, based on formulas promulgated by the United States Department of Housing and Urban Development. The share of the rent to be paid by the tenant will be determined from time to time by the PHA based on the tenant s income. The tenant s share is usually set at 30% of the total household income. The tenant pays his/her share to you every month, and the PHA pays the rest to you directly.

            Under the older Section 8 certificate, you cannot charge and the tenant cannot pay more than the rent determined by the PHA. Attempting to collect more rent from the tenant under the table is considered fraud, and both you and the tenant can be prosecuted. Under a voucher, you sometimes may be allowed to collect additional rent from the tenant, beyond the 30% of income set by the PHA, effectively charging a higher rent than the official market rent. But it is important to read the terms of the Housing Assistance Contract to be sure that this is permitted under your tenant s program. Certificates are gradually being phased out and replaced by vouchers.

            In recent years, due to cuts in funding, some PHAs have reduced the rent during the term of the lease. If you read the fine print of the lease or HAP contract, you will find that they can do this. If this happens, you will have very few legal remedies. However, landlords have sometimes been able to join with other landlords to oppose such cuts politically, often with some success.

            Discrimination. As a landlord, you are prohibited from discriminating against any tenant because that tenant is on public assistance. That includes discrimination based on program requirements, such as the requirement for a lease or the terms of the HAP contract. You may, however, refuse to rent to a tenant because the tenant, under the program, is unable to pay the rent which you can obtain on the open market.

            Eviction. You can evict a Section 8 tenant only for reasons stated in the lease or HAP contract. You must state the reason for the eviction in the Notice to Quit, and you must send a copy of the Notice to Quit to the PHA.

14. Satellite and Cable TV

            State law provides that you cannot refuse to permit a cable TV operator access to your building to provide cable service to the tenants. Your are deemed to have consented when the cable operator delivers to you a copy of the state cable TV law and a signed statement in which they agree to be bound by its terms. You cannot prevent a cable operator from entering the building for the purpose of installing or maintaining the cable system if one or more tenants have requested cable. The cable company cannot install cable in an individual unit without permission from the tenant.

            The state law provides that the cable operator must install the cable TV system at no cost to you, must indemnify you for any damage arising from the installation, and must not interfere with the safety, functioning ,appearance, or use of the dwelling. If the value of your property is diminished by the cable installation, you can file a legal action to recover damages. A cable operator cannot interfere with any tenant's existing rights to use any existing master or individual antenna system.

            You cannot discriminate, in rental or other charges, between tenants or occupants who subscribe to cable TV and those who don't. However, you may require reasonable compensation from the cable company in exchange for permitting the installation of the cable systems.

            A regulation of the Federal Communications Commission provides that you cannot prohibit any tenant from installing a TV antenna, within the part of the building which is under the tenant's control. The regulation applies to television antennas, satellite dishes less than one meter in diameter, and wireless cable antennas. That means that you can prohibit a tenant from putting an antenna on the roof, or on the exterior of the building, but you cannot prohibit the tenant from putting one inside a window or on a porch or patio which is part of the tenant's apartment.

            The FCC regulation prohibits any restriction on property within the exclusive use or control of the tenant which impairs a viewer's ability to install, maintain, or use a video antenna. A restriction impairs if it unreasonably delays or prevents the use, unreasonably increases the cost, or precludes a viewer from receiving an acceptable quality signal. The regulation does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the purpose.

15. Habitability

            The State Sanitary Code contains detailed requirements for the physical condition of all residential rental units. This includes many requirements that we ordinarily would not associate with sanitation," such as requirements for security locks and who pays for utilities. Here are some of its requirements:

          You should get a copy of these requirements before renting any unit. A copy of the Code is available at the State Book Store, at the State House, for about $4.00 and is money well spent.

16. Reporting Code Violations

            If tenants believe there are violations of the Code in their apartments, they may call the local code enforcement agency and ask for an inspection. If you are getting along with your tenants, they will probably report conditions to you first, but they are not legally required to do so. The local code enforcement agency can order you to make repairs. They can also document conditions, which can be used as a defense to any court action which you may bring against them. You are also prohibited from retaliating against a tenant for reporting actual or suspected code violations to code enforcement authorities or to you in writing.

            The name of the local code enforcement agency varies from community to community. In Boston and Cambridge it is the Inspectional Services Department or Division. In Brookline, it is the Health Department. In most smaller towns, it is the Board of Health. For a heat or other serious violation, the Code requires an inspection within 24 hours.

            Rent Withholding. Your tenants have the right to stop paying rent if conditions are not being corrected, provided they meet all of the following requirements:

            You won't necessarily get all the withheld rent back when the repairs have been made. The tenant is usually entitled to an "abatement," a credit off the rent for having had to live with the conditions until they were repaired. However, a court can order that rent withheld because of the presence of lead paint be applied towards the cost of de-leading.

            At the present time, there is no legal requirement for tenants to place withheld rent in any form of escrow account. Legislation which would require tenants to put withheld rent in escrow is often introduced in the Legislature, but has never gone anywhere.

            Repair and Deduct. Under certain circumstances, a tenant can make the repairs and then deduct the cost from the rent. This can be done if the tenant first has a code inspection and verification that violations exist and that they may endanger the tenant's health and safety. After you have been notified by the code enforcement agency, you have 5 days to begin repairs and 14 days to substantially complete them. If you do not make the repairs within the time limit, the tenant may have the repairs made and deduct the cost from the rent. The tenant may not deduct more than 4 month's rent in any 12-month period. You can sue to recover any excess amounts deducted, but you cannot combine that claim with an eviction action.

17. Building Security

            Some recent lawsuits have produced high verdicts for tenants suing their landlords for negligence in maintaining building security. The State Sanitary Code requires that a dwelling "shall be capable of being reasonably secured against unlawful entry." Every entry door of the building and of each unit and every openable exterior window must be "capable of being reasonably secured from unlawful entry" and be "fitted with an operating locking device."

            In a building containing more than three units, the main entry door must be able to close and lock automatically with a lock, including a lock with an electrically-operated striker mechanism, a self-closing door, and associated equipment.

            These are the minimum requirements. If a tenant sues you because they were raped, injured, or their property stolen by an intruder, your actions will not be measured by the minimum legal requirement, but by what was reasonable. If you regularly leave security doors open, or give plumbers, carpenters, and "handymen" keys to tenants' apartments and leave them alone there, or fail to respond promptly to requests to repair door or window locks, you are vulnerable to claims for negligent security. If you know that your property is in a high crime area, inadequate lighting or locks can cost you far more than the cost of maintaining proper security. According to a recent court decision, you can also be held liable for crimes committed against tenants by your own employees

18. Disputes Between Tenants

            Disputes between house-mates or between tenants in neighboring apartments can be very difficult for a landlord to deal with. You may be tempted to avoid getting in the middle of these disputes, and that is often the best course. But you can't always avoid involvement. We can't tell you how to handle every dispute, but we can try to offer some guidance.

            It is easier to stay out of a dispute between tenants in the same apartment. However, when the lease is up for renewal, you have the right to determine which tenants, if any, you will allow to stay under a new lease. So long as you are not engaging in unlawful discrimination or retaliation, you can enter into a new lease with some house-mates and ask others to leave. If a court action is necessary to evict the tenant that you have asked to leave, it can get complicated. You may need to bring the eviction action as co-plaintiff with the tenants with whom you have signed the new lease.

            It can be harder to stay out of a dispute between tenants of neighboring apartments. Lease clauses generally obligate tenants not to disturb residents of neighboring apartments, and courts have held that these clauses give you both the right and the obligation to control such conduct. You need to proceed carefully, since it may cause you more trouble if you take action against the wrong party. You can do a lot to avoid such disputes by trying to encourage an atmosphere of quiet and cooperation among tenants.

            There are mediation services available which can often be helpful in such instances. In some courts, we have seen court personnel who can be very helpful in trying to resolve a dispute by mediation. Mediation is a process whereby a neutral party tries to help the parties themselves to agree on a solution to a dispute. It can be much less expensive than litigation and, when possible, may produce a better result. In some courts, we have seen court personnel who can be very helpful in trying to resolve a dispute by mediation.

19. Repairs

            It is essential to have a regular, formal system, including regular record-keeping, for tenants to report the need for repairs and for getting necessary repairs done. When a tenant facing eviction files counterclaims for failure to make essential repairs, there is no substitute for records kept in the ordinary course of business, showing complaints received and actions taken.

            It is also important to monitor the people you hire to do work for you. Some landlords try to hire unlicensed and unskilled handymen, hoping to save money on repairs. This can be false economy. Doing a job right the first time can often be less expensive than having to fix a sloppy job after several failed attempts, not to mention litigation with a tenant who has become frustrated and has begun withholding rent. A tenant can make serious legal trouble for a landlord who uses unlicensed workers and doesn't get proper permits to do work.

            Another reason for monitoring tradespeople is that some may steal from tenants or damage their property. We know of one instance where a plumber left alone in an apartment made a long-distance call from the tenant's phone. And many tradespeople seem incapable of making or keeping appointments. Your tenants are required to allow access for repairs, but, except for emergencies, they are entitled to an appointment with reasonable advance notice. They will tend to blame you if they stay home from work and the painter, carpenter, or plumber doesn't show up. And if tradespeople show up without an appointment, the tenant may be perfectly justified in refusing to let them in.

            Some tradespeople have been known to fail to show up for an appointment and then to report to the landlord that the tenant wasn't home or wouldn't let them in. Then they will charge you for the service call, and you will blame the tenant, who was waiting for them all along.

            These are all good reasons why you or someone you trust should accompany workers in tenant apartments whenever possible.

20. Illegal Drugs

            If you are aware that a tenant is involved in illegal drug-related activities, state law requires you to "take all reasonable measures" to evict the tenant "as soon as it can be lawfully done." If you knowingly tolerate illegal drug activity on your property, you may be subject to a fine of up to $1,000 and a prison sentence of from three to twelve months. You also run the risk of the state confiscating your property. Other tenants may move out or withhold rent because of the unsafe conditions associated with drug activities.

            The law gives you some special remedies to evict a tenant quickly when illegal drugs are involved. If a tenant is involved in illegal drug activities, you can begin immediate legal action against the tenant, without waiting for the standard notice requirements. The statute used to say that you could "without process of law, make immediate entry upon the premises." But that has been amended, and you now must go to court in an expedited eviction proceeding. The old law was less helpful than it appeared because it could subject a landlord to litigation even more costly than the eviction process.

            Evicting a tenant for illegal drug activities requires proof that these activities are taking place on the premises. Without a lab analysis, a bag of white powder is only a bag of white powder. You do not have the right to enter the unit and take what you believe to be illegal drugs for analysis. If you believe that illegal drug activities are taking place on your property, you should go to the police. They can assure your safety and obtain evidence lawfully.

21. Security Deposits and Last Month's Rent

            This is a very common problem area for the small property owner. Because the law is very complex and the consequences of even an innocent misstep can be expensive, we generally recommend that you do not charge a security deposit, but only a last-month's rent deposit. Whatever you do, be careful to specify in writing the type of deposit you are charging and refer to it correctly and consistently.

            Under the law, the security deposit provides very little protection against a tenant damaging the apartment. Almost any damage will cost more than the deposit. If you try to keep any part of the deposit for damages, you can be almost certain of a lawsuit from your tenant. And if the court disagrees with any part of the deduction, the tenant's award will be trebled, and you will also have to pay the tenant's attorney's fees. It's a lot cheaper and less aggravating to protect yourself by carefully screening tenants.

            Under Mass. General Laws, ch.186, §15B, at the beginning of the tenancy, you may charge only:

            The law also regulates how you can accept and hold these funds. For a security deposit, you must:

            You must return the deposit within 30 days after the end of the tenancy. You may only deduct unpaid rent which has not been validly withheld or deducted, taxes due under an escalator clause, and the cost of damage the tenant has done to the premises (This does not include normal wear and tear). If you deduct for damages, you must follow the procedure in the statute exactly.

            You must provide the tenant with an itemized list of damages, signed under penalties of perjury, itemizing in precise detail the nature of the damage and the repair necessary to fix it, with written evidence, such as estimates, bills, invoices, or receipts, indicating the actual or estimated repair cost, within 30 days of termination of the occupancy under a tenancy at will or the end of the tenancy under a lease. This must be followed exactly, or you could be hit with treble damages plus attorneys fees. Be careful. You can be hit with treble damages just because you didn't sign the list under penalties of perjury or because the account was in an out-of-state bank.

            For the last month's rent, you must:

            If you fail to comply with any of these requirements, the law allows the tenant to sue you for damages including return of the deposit. For some violations, damages include three times the interest due or three times the amount of the deposit, plus the tenant's attorney's fees. A violation of any of these provisions may also be a violation of Mass. General Laws, ch.93A, the Massachusetts Consumer Protection Act.

            If you have already violated the law, it is generally safest to return the security deposit immediately to avoid having to pay treble damages. You may not like to do this, especially where the tenant owes rent or has severely damaged the unit. But even if it isn't clear that you have violated the law, returning the deposit will probably save you money. The Massachusetts Appeals Court has ruled that you may avoid the treble damages by returning the security deposit immediately on demand. (Castenholz v. Caira, 21 Mass. App. Ct. 758, 490 N.E. 2d 494 (1986).) And now you know why we advised you not to take a security deposit!

            Since the rules are different for security deposits and last months rent deposits, it is important for you to see that the paper trail makes clear which kind of deposit you are taking. If the tenant pays by personal check, be sure the description of the payment in the "memo" section of the check is correct. If the tenant pays in any other way, be sure to give a receipt which includes an accurate description of the payment.

            The security deposit and last month's rent law does not apply to any rental for a vacation or recreational purpose of 100 days or less in duration. It also does not apply to commercial rentals.

22. Property Damage

            Whether you have a security deposit or intend to sue tenants for damages, your claims must be carefully documented. The Greater Boston Real Estate Board/Rental Housing Association has forms for recording the condition of the premises at the outset of the tenancy. These forms are often treated too casually by both landlords and tenants. You should hold a careful inspection of the apartment by a management-level person, with careful notes taken, either before the apartment is turned over to the tenant or, if possible, with the tenant present.

            You should also consider a regular inspection every year or so. This is not an inspection of the tenant's housekeeping or lifestyle. It is to discover repair problems while they are still small and to update your records of the apartment's condition.

            A tenant is not responsible for ordinary wear and tear to the apartment. A court will not look kindly on claims for every nail in the wall or every scuff-mark on the linoleum. Only serious damage is worth the trouble of a lawsuit, even in small claims court. The best protection against tenant-caused damage is careful tenant screening.

            If you intend to sue a former tenant for damages, consider whether your former tenant has the financial resources to pay a damages judgment. Suing a low-income tenant for damages can be a colossal waste of your time. Even if you win a judgment, you will very likely never collect it. However, if you participate in a rent-subsidy program, the program may reimburse you for damages, and then seek to recover the money from the tenant. Since this can affect a tenant's ability to continue in the program, it can form an important incentive for the tenant to care for the property.

            If you do try to sue the tenant for damages, you need to be able to prove your claim. Document the damage with pictures and itemize them in detail. Get detailed bills and estimates for repairs.

23. Entering the Unit

            It may come as a surprise to you, but legally, even a rented home is a person's castle. Even though you are the landlord, you do not have an unlimited right of access. Once the unit is rented, it belongs to the tenant for the duration of the tenancy. You have no right to enter the tenant's home without permission. Unless the rental agreement specifies otherwise, you do not even have a right to a key.

            Originally, in an agricultural society, the law expected the landlord to rent the property to the tenant and then leave the tenant alone. It gave the landlord no right of access, but also no responsibility for repairs. The modern urban tenancy, especially in a multi-unit building with many building-wide systems, has forced that law to change. You now have an obligation to make repairs, and you get a right of access for that purpose. But your right of access does not supersede the tenant's rights to privacy and to "quiet enjoyment" of the premises.

            One of the most common landlord-tenant disputes involves access for making repairs. The State Sanitary Code requires the tenant to allow you "reasonable access" at "reasonable times" to repair code violations. What is "reasonable" is the subject of frequent disputes. You should negotiate access by appointment whenever possible. If the tenant will not allow you access to make needed repairs, either by being unreasonably difficult about making appointments or by not keeping them, you should document the situation carefully with witnesses, written communications, and logs.

            You also should make every effort to keep appointments yourself. Unfortunately, this is not always easy when you have to rely on plumbers, carpenters, painters, and other tradespeople, who sometimes seem to live in a completely different time zone. Again, document everything in writing. And keep careful track of workers you hire. Sometimes they will not keep appointments and blame the tenant. See the chapter on repairs for more detailed advice on this point.

            In a genuine emergency, you may enter the tenant's unit without prior notice in order to deal with the emergency. But this is risky, so make sure it is a true emergency. A fire, a flood, or a burst pipe is an emergency. The sudden availability of a carpenter is not. Make sure to document the emergency carefully. Unless there is an emergency, entering a tenant's unit without permission may make you liable for three months' rent plus the tenant's attorney's fees.

            Housing courts can often be helpful in mediating disputes over access. Your strategy at all times should be to comply carefully with the requirements of the law and to document your compliance with careful record-keeping. If necessary, with a particularly difficult tenant, a witness who can observe and later testify about the tenant's refusal of access, can be valuable.

            You or your representative should be with repair personnel at all times in a tenant's apartment. Be careful to whom you give keys to tenants' apartments. Courts may hold you responsible for any damage, theft, or long-distance telephone calls attributable to unsupervised workers in the apartment. Doing this will also protect you from the occasional tradespeople who don't show up, then claim that the tenant refused access and bill you for the call.

            Under Massachusetts General Laws, ch.186, §15B, you may include in a rental agreement only the following rights to access:

            You may also enter the premises in accordance with a court order or if the premises appear to have been abandoned by the tenant.

            If the lease allows you to enter for any other reason, that provision is illegal and void. Your right to inspect the premises or to show them to a prospective purchaser does not mean that you can do it every day twice a day. Inspections should be limited to reasonable frequency. Unless the lease provides that the tenant must give you a key to the apartment, you have no right to one. The fact that a lease allows you a right to enter for certain purposes does not mean you may enter the tenant s private residence at any time without appointment.

            A tenant has not necessarily abandoned the apartment just because s/he hasn't been around for awhile, hasn't paid rent, or has moved some furniture out. A tenant who is moving out has the right to full possession of the apartment until the last day of the lease or rental period. You may get impatient and go into the apartment before the end of the tenancy and remove what you think the tenant has left behind, but the tenant intended to return for those things. In such a situation you can later be charged with trespassing and larceny and can be sued for conversion of property and interference with quiet enjoyment. You must be very careful before assuming that a tenant has abandoned the apartment. Try to get the tenant's moving plans in writing. If you are unsure of the tenant's plans, ask.

            We once saw a case where the tenant came back from vacation and found someone else living in his apartment and his furniture stored in the cellar. He wasn't behind on the rent, but the landlord somehow decided that he had abandoned the apartment. The landlord was liable for damages (a minimum of three months' rent, and potentially much more) plus the tenant's attorney's fees. And the tenant had the right to recover possession of the apartment. If we hadn't settled the matter, that landlord would have faced another lawsuit from the new tenants, who didn't expect to be considered trespassers in an apartment they were renting in good faith!

            If you believe the tenant has abandoned the premises, the first thing to do is try to get in touch with the tenant by phone, letter, and e-mail. Notify the tenant that you will consider the apartment abandoned if you don t hear from him/her. Ask what s/he would like you to do with property left in the apartment. Keep careful records of all of your efforts. If you haven t been able to get any response after a reasonable time (a week or two), you may try to enter the unit and see if the tenant s furniture has been removed. What property has been left behind? Is it trash or did the tenant leave clothing, bed, TV, computer, or other things that might indicate that someone might still live there? If you conclude that the apartment has been abandoned, take a good set of pictures and videos to document the situation. At this point, if the tenant has left property in the apartment, you may remove it, but be sure to inventory everything and store it in a safe place. Only then should you change the locks and re-rent the apartment.

            If you have any doubt that the tenant has abandoned the apartment, the safest thing is to send a notice to quit and go through the eviction process. It may be slower, but it is the only sure way to avoid expensive legal problems.

24. Retaliation

            When your tenant has complained to the Board of Health and forced you to make some expensive repairs, it's natural to be upset. You may want to raise the tenant's rent. Or take away the tenant's parking space or yard privileges. Or perhaps even get rid of the tenant for being so troublesome. It may be natural, but it's illegal.

            By law, you cannot try to evict a tenant, raise the rent, or change the terms of the tenancy because the tenant has complained of conditions to you in writing or to any government agency or because the tenant has organized or joined a tenants' union or engaged in certain other protected activities.

            If you try to raise the rent, evict the tenant, or make any change in any of the terms of the tenancy within six months after the tenant has done any of these things, it will be presumed to be an unlawful retaliation. That means that in any court proceeding, the burden will be upon you to prove that you are not retaliating against the tenant.

            But what if you were going to raise the rent anyway, before the tenant did those things? To defeat a retaliation claim, you must convince the court, with clear and convincing evidence, that you are acting out of non-retaliatory motives and would have taken the same action in the same way if the tenant hadn't done whatever they did. This takes more than simply your assertion of your motives. Clear and convincing evidence requires complete records carefully kept.

            But that can be risky, and the consequences of losing in court can be expensive. Sometimes, the best course may be to wait until at least six months after the tenant's actions that are protected by the retaliation law. Even then, retaliation may still be found, but during the first six months, you have the burden of proving that what you did wasn't retaliatory. After six months, the tenant will have the burden of proving retaliation.

            If you are found to be retaliating against a tenant, you will not be able to evict the tenant and may have to pay damages of from one to three months' rent plus the tenant's attorney's fees.

            You also cannot willfully deprive a tenant of heat, hot water, gas, electricity, lights, water, or refrigeration service. Nor can you lock a tenant out or remove the tenant from the apartment without going through the proper court procedure. If you try, the tenant can obtain a restraining order, file a criminal complaint against you, and sue you for money damages and attorneys fees.

25. Consumer Protection Law

            Chapter 93A of the Massachusetts General Laws is commonly called the "Consumer Protection Act." Like the Federal Trade Commission Act on which it is based and similar "baby FTC" laws in other states, it prohibits the use of any unfair and deceptive acts and practices in the conduct of any trade or business.

            Renting housing is generally considered to be a trade or business, and the Massachusetts Attorney General has issued regulations which define unfair and deceptive acts or practices in the rental housing field. Among the things that constitute an unfair practice is if you fail to disclose to a tenant or prospective tenant any fact the disclosure of which may have influenced the tenant not to enter into the transaction. Also listed as an unfair practice is any violation of any law meant to protect consumers and any act which is oppressive or otherwise unconscionable in any respect. A copy of the consumer protection regulations is available at the State Book Store, at the State House. It is also available online.

            If you receive a letter from your tenant which says that it is a demand letter under Chapter 93A, you should have a lawyer look at it as soon as possible. Failure to respond within 30 days can make you liable for three times the tenant's damages, plus the tenant's attorneys fees.

            If you are the owner-occupant of a two-family or three-family house and own no other rental property, you are not considered to be engaged in a trade or business and are not subject to this act.

26. Types of Tenancies

            There are three types of tenancies in Massachusetts. They are a tenancy for a fixed, a tenancy at will, and a tenancy by regulation.

            Fixed Term Tenancy. A tenancy for a fixed term must be created by a written lease, signed by both the landlord and the tenant. A lease, in its simplest form, is a contract that you will rent the apartment to the tenant, and the tenant will rent it from you, for a fixed term at a fixed rent. The term is usually for one year, although any other term is possible. The lease binds you as well as the tenant, and you cannot raise the rent or change what the rent includes during the term of the lease unless the lease itself provides for it.

            In order for a lease to be valid, it must be in writing and must indicate the date on which it ends. It should also state the amount of the rent and what the rent includes. The standard RHA lease forms contain a trap here for the unwary landlord. It provides a space for you to fill in the "term rent" and says that this "term rent" is payable in monthly installments, in an amount which you also must fill in. The "term rent" is the total rent which the tenant must pay over the initial term of the lease.

            In the most common situation, a one-year lease, the "term rent" is simply twelve times the monthly rent. The problem arises when some landlords sign a lease for an unusual term. We once encountered a case where the lease was for thirteen months, which means that the "term rent" should have been thirteen times the monthly rent. But the amount filled in as "term rent" was twelve times the monthly rent, and the tenant claimed that he was entitled to one month's free rent. If you are signing a lease for an unusual term, make sure that the "term rent" correctly reflects the monthly rent times the actual number of months in the rent term.

            Self-extending Lease. Some leases are "self-extending." A self-extending lease is a one-year term lease which automatically extends itself from year to year unless one of the parties gives notice to the other by the deadline specified in the lease, to terminate the lease at the end of its current term. Unless you or your tenant give notice terminating the lease, it will keep extending itself, every year, at the same rent. For example, a self-extending lease with a term which runs from September to August may provide that it will extend unless you or your tenant give notice to the other by 1 July. If the notice is not actually received by that date, the lease will extend itself for another year. This is only an example. You may provide for a different expiration or notice date.

            If you use a self-extending lease, be careful to fill in the deadlines correctly in the blank spaces and to give notice by the proper deadline if you want to raise the rent. Otherwise, the lease will self-extend for another year at the same rent. A notice terminating a self-extending lease must actually be received by the tenant by the specified deadline.

            Self-extending leases used to be very popular in the 1960s and 70s. They became much less popular during the 1980s. Their supposed advantage is that, if the tenant doesn't give you notice by the date specified, you can hold the tenant to the lease for another year. Since it is rare to collect rent from a tenant who has skipped out, and a tight rental market makes it very easy to replace a departed tenant, this advantage is minimal. In a cooler rental market, this advantage may be more meaningful, at least as leverage to keep a tenant from leaving mid-term. But since rental markets tend to rebound, the disadvantage of a self-extending lease may well outweigh the advantage.

            The disadvantage of a self-extending lease is that unless you fill in the form correctly and give termination notice properly, the tenant can hold you to the lease for another year at the old rent. During the 1980s, many landlords wanted to keep their options open. Some envisioned condo conversions or simply a rapidly growing market. Some got stuck when they didn't properly terminate a self-extending lease. This made self-extending leases less popular than before. For the same reasons, written tenancies at will, rather than fixed-term or self-extending leases, became much more popular during the 1980s than ever before.

            Escalator Clauses. Whether and how you can raise the rent during the term of a lease depends on what the lease says. Most leases in Eastern Massachusetts run from September to August. The lease will continue in effect until it expires according to its terms. You cannot raise the rent before the current lease expires unless the lease it