The Difference Between Massachusetts Leases and Tenancies At Will by Peter Mark Heintzelman, Esq. (Copyrighted 1999 - all rights reserved) Massachusetts landlords and tenants alike wrestle with the question:which is better for me, a lease or a tenancy at will agreement? Its a question worthy of review, and the answer will not always be the same for each person or each circumstance. My general preference is a month to month tenancy at will agreement, for the following reasons: First off, let's all remember that, regardless of which form of tenancy you elect, always use a written tenancy agreement. Too many landlords still rely upon the oral month-to-month tenancy at will, which is fraught with risks. For example, the state sanitary code requires that the transfer of electric and heat charges to a tenant is acceptable, if the written tenancy agreement provides for the same. Frequently, in eviction court, parties dispute the terms of the tenancy to begin with; and so often the facts are found against a landlord who neglected to protect themselves by reducing the terms and conditions to written form in a tenancy agreement. Neither can a landlord charge late fees, bounced check charges, nor seek recovery of attorney fees, unless the agreement is reduced to writing and includes these terms. So, from now on, pledge to yourself, that all future tenancies you create will be in writing, whether by lease or written month-to-month tenant at will. Some of the worst cases I've handled for landlords without a written tenancy agreement invovled tenants who are (were) the landlords' friends or family: big mistake! Terminating a tenancy for nonpayment of rent, also highlights major differences between a leasehold interest and a tenancy at will in Massachusetts: Although both the lessee (tenant with a lease) and tenant-at-will can (and typically should) be served with a fourteen day notice to quit for nonpayment of rent the day after rent becomes due (if the rent due date is not important to the landlord, why should it be to the tenant?), the tenants rights to cure are different. Under a tenancy at will, the tenant has 10 days from receipt of the notice to quit, to cure the arrears by paying the full amount due, and if that is done within the ten day period of time, the landlord cannot proceed to evict based on that notice to quit. Under a lease, the tenant, by law, is allowed until the Monday before the original eviction trial date to cure, by paying the rent arrears together with any court costs, and if so, the case may be dismissed! What if the tenant falls behind again on rent? Well, if you have a month-to-month tenancy at will, you serve the tenant with another 14 day notice to quit; but, if this is the second fourteen day notice to quit the tenant has received in the last twelve months, the tenant does not have the right to cure! In otherwords, the landlord can still accept the rent arrears "for use and occupancy only, without waiving my rights to evict you," which quoted language should be set forth on a receipt and promptly delivered to the tenant (keep a copy for yourself, as always!), and the landlord can still proceed into the eviction process. Now compare that with the lessee's rights to cure: If a lessee receives a second nonpayment of rent notice within 12 months of a similar first notice to quit for nonpayment, the tenant still has until the Monday before the original trial date to cure by paying the arrears, and having the case dismissed. The tenant with a lease, then, has more rights than a tenant-at-will, relative to repeated rights to cure late rent payments, which can repeatedly frustrate landlords. Terminating a Tenancy for Reasons Other Than Nonpayment: Another example of the differences between leases and month-to-month tenancies is evident when the grounds for eviction are other than nonpayment of rent. If you have a month-to-month tenancy, you need no reason to evict; you merely need to serve the tenant with an appropriate 30 day notice to quit (remember, this is not 30 calendar days, but at least a next ful month's notice to quit), and then proceed to evict upon that notice's expiration. Your burden of proof at eviction trial, is then to prove the notice was served and expired before you started the eviction; not that you need to prove cause, i.e., the reason for wanting the tenant out. For example, if the landlord is experiencing property damages in common areas, or that a tenant has unauthorized occupants living in the apartment, or is just too noisy, disruptive and disregardful of other tenants' quiet enjoyment, these issues can be hard to prove, to the courts' satisfaction, and often the evictions fail in court because the landlord was unable to prove the material breach/sustantial violation. By evicting a tenant at will, then, with a so-called 30 day no-fault notice to quit, the landlord avoids the pitfall and burden of proving the cause to evict. Now, compare evicting a tenant with a lease for cause: On the pro-lease argument side, a landlord can reduce the time period when the notice to quit for cause expires; i.e., a seven day notice to quit for cause has been found valid in the Worcester Housing Court (as compared with the required 30 day notice to quit for cause to a tenant-at-will), and can move your case into court a few weeks early. The time saved, however, does not reduce the landlord's burden of proving not just that the tenant with a lease violated the lease terms, but again, the landlord must prove substantiality of the breach; in a court and with a set of laws which confirm what this author has heard said by the "authorities that be", namely that eviction laws are meant to preserve tenancies! I had a lease eviction case recently, where the tenant family with a lease were throwing kitty litter off the balcony, fighting between themselves, loud noises affecting other tenants, drug activity in the common areas (although not eye-witnessed), and the court viewed such allegations as nonsubstantial, and unlikely to cause the landlord to prevail in the eviction action for cause! So, cause evictions are not always what they appear to be, and may not give you a great likelihood of success. See why I like month-to-month tenancies at will?! "But a Lease Gives a Landlord a Sense of Security," I've so often heard landlords tell me. In otherwords, the landlord community feel that a lease will bind the tenant into a lease term, typically one year, and therefore the landlord will not have problems nor have the turn-around expenses of tenants-at-will who elect to terminate their tenancy sooner than later. I've come to learn the landlord's sense of security is a fallacy. A lease term, of a year for example, is like an indentured servitude, Many tenancies become problematic because tenants lose their jobs, relocate, have marital/family problems, or other problems which they may not have anticipated at the commencement of the tenancy. A tenancy agreement is like a partnership; and I've learned long ago, if partners want out of the partnership, let them out! Yes, you can (depending upon lease terms) look to hold tenants with a lease responsible for the rents due for the remainder of the lease term; but that doesn't always mean you'll collect the monies due running the tenants (or former tenants) through the courts. They may also sue you back in your collection case, so evaluate those issues as well. Tenants with a lease who are not allowed out early, may also cause you more trouble then you anticipated; like calling the code inspector, causing property damages, and doing other things to aggravate the landlord (I could write a book that would scare Steven King about such incidences!). My best suggestion: if a tenant, with or without a lease wants out, let them out, move on, and rent the apartment to a new tenant. Keep the cash in your own pocket, and not into some attorney's pocket. Remember as well, that for the false sense of security that a lease may provide a landlord, if you need to evict your tenant with a lease before the lease expiration date, it may be tougher than you anticipated, for the reasons described above. In summary, there is no right answer for every tenancy. Some landlords swear by, and have been well-served by the lease. Some landlords swear by a tenancy-at-will agreement. From this eviction lawyer's point of view, however, I'll take a month-to-month tenancy at will more times than not. If you doubt my preference, you need to sit down in Housing Court on eviction day a few more times. |
