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ILLEGAL TENANCY AGREEMENT PROVISIONS

Peter Mark Heintzelman, Esq.

Reducing the risks of being a residential landlord should always be a focus of the property owner association's membership. In addition to doing a thorough screening of tenants before you rent (probably the most frequent error of good-intentioned landlords), and also preparing the apartment to be in good, move-in condition at the commencement of a tenancy, often goof up by using an inappropriate written tenancy agreement. How often have we seen landlords using stationary store leases, or leases from a California brother-in-law, or landlords who use the tenancy agreements provided in the property owner's association manual (a good deal for the price, by the way), but then goof up, by inserting home-brewed illegal provisions, such as:

*The rent is $575 per month, reduced to $550, so long as the tenant pays by the first of each month; or,

*Tenant agrees the rent would be $600 per month, but because the tenant needs to move in before the apartment is ready, the parties agree the tenant shall take the apartment "as is" at $550 per month; or,

*Tenant agrees if rent is not paid on time, that the landlord may terminate the tenancy without further notice or court action; or,

*Tenant agrees to pay their own water, do all common area snow and ice removal, pay for basement lighting, common exterior porch lighting or exterior garage lighting, or the like,

just to name a few typical errors.

Massachusetts residential tenancy law is very "parental"; not allowing grownups to necessarily agree upon what might appear to be logical and rational terms. Examples of lease restrictions and regulations are included in a number of statutes and regulations, to name a few, including:

The security deposit law, General Laws, Chapter 186, Section 15B, which restricts a landlord from collecting up front more than the equivalent of the first month's rent, a last month's rent and security deposit (each of no more than the equivalent of the first month's rent) and a key and lock installation charge. The same statute prohibits the insertion of a rent "late charge", until the rent is more than 30 days in arrears, and requires a landlord who wants access to the apartment during the tenancy, to inspect, repair, or show to future prospective tenants or buyers, to have that right reduced to writing and in the body of the written tenancy agreement.

Other laws prohibits a tenancy agreement from containing language:

* which attempts to release, exonerate or indemnify the landlord from any or all liability of a landlord to a tenant or any other person, for injury or damages arising from the landlord's omissions, fault, negligence or other "misconduct";

* waiving of the tenants' legal right to a notice to quit for nonpayment of rent, or a so-called thirty day no-fault notice to quit to a tenant at will or otherwise attempting to

allow a landlord to do a "self-help" eviction, meaning without court permission;

* the effect of which is to terminate or allow a landlord to terminate a tenancy

agreement if the tenant has or shall have children who shall occupy the apartment;

* that has the court-perceived (not landlord perceived) intention of threatening a tenant who asserts their legal rights to call the code inspector, board of health or take

other legal remedy to address poor apartment conditions, also violates law.

And ... if you don't already feel over-regulated, don't forget the mandates of the state attorney general's residential landlord-tenant regulations and prohibitions contained in 940 Code of Mass. Regulations, section 3.17(3), which make the following items, or absence of items, a violation of law, and subject a landlord to the punitive damage provisions of Chapter 93A, the so-called "Consumer Protection Law":

*no tenancy agreement shall contain a late penalty charge until more than 30 days after the rent becomes due;

*all tenancy agreements to provide the landlord's address, telephone number and if landlord has a "manager" or maintenance-man's address and telephone number;

*a restatement of the security deposit law, and if that weren't enough, the catch-all:

*"or otherwise "violates any law".

Violation of these laws and regulations can cause landlords to lose evictions, find provisions not enforceable in court, and sometimes, sometimes too often, exposes landlords to monetary awards to tenants for their "actual damages" and sometimes punitive damages of up to three times rent or three times the tenant's actual damages, together with liability to reimburse tenant's attorneys' fees as well; all in an eviction system where oftentimes, "who's owed more money wins". Not only is it economically demoralizing, but emotionally demoralizing as well. Be careful, then, to use a carefully and properly drawn tenancy agreement, be it a lease or month-to-month tenancy (my favorite!), to protect yourself, and to make your investment more rewarding.

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