Use Written Agreements (Leases or Month-To-Month Agreement)
Being a landlord in Massachusetts is difficult enough, don’t make it more difficult by not using written agreements. There are two important reasons to use either a written lease or a month-to-month agreement.
The first reason to always use written agreements as of that in all agreement is only as good as your memory in the honesty of the people making the oral agreement. And we all know neither of these in reality are very good. A written agreement affords you the opportunity to spell out the terms of the rental agreement and who is responsible to do what in the landlord tenant relationship.
The second reason, although equally important, is you can explicitly state the rules for the tenancy. If you use an oral agreement to start the tenancy, than anything not discussed, regardless how obvious you may feel it is, will not go your way in an eviction proceeding in housing court. For example if you do not allow your tenants to sublet to other people, you may find one day your tenant does not live on your property anymore instead they are renting it to another person and possibly at a higher rent than you rented it to them for. If you do not have a written rental agreement, you cannot use this in a court of law as an excuse to evict the person as you never explicitly prohibited your tenant from subletting. The list can go on and on, this can go for any and all situations that are clearly defined in a properly draft lease or rental agreement.
Most landlords do not realize the pitfalls of an oral rental agreement. Unless your written rental agreement does not specifically deny the tenant the right to bring in other people without your approval, the tenant has the right to do so. If you do not want pets on your property, then a rental agreement that expressly states that is extremely important. Simple things such as maintaining a key to the unit, most landlords do not realize if this is not in a written rental agreement then you have no right to have a key to your own property or to restrict your tenant from changing the lock and key without your permission. Many of these things seem obvious, but are actually quite contradictory under the law. Take for example a tenant’s responsibility to pay for gas, electric and fuel for heat or hot water. Many landlords have been sued for not providing heat and hot water, and not having a written rental agreement that expressly states that the tenant is responsible for those utilities.
If you want to restrict who is living on your property, this must be expressly written into an agreement. If your lease or rental agreement does not expressly list all occupants, including children, and you will have no leg to stand on in court if your tenants move other people into the apartment. This is actually a very big concern considering most landlords pay for water, which dramatically increases with the number of occupants and also the wear and tear on the unit will dramatically increase depending on the amount of people living there.
If you plan on forbidding your tenant from having anything in the apartment, this needs to be expressly stated in a properly drafted written rental agreement. Examples of provisions of that should be in a written rental agreement, but most landlords forget about: pets, washing machine, air conditioner or even a waterbed. If you do not expressly prohibit these items, you cannot forbid the tenant from having them after they’ve moved in.
Thus far we’ve been discussing all the things you should have in a written rental agreement, mallets briefly touch on what you should not have. You should absolutely not have any legal provisions in your written rental agreement. This should seem obvious, but you cannot imagine how many rental agreements I have seen that landlords just printed off the Internet and had their tenant sign, simply to find out during an eviction housing court that some of the language in the agreement is actually illegal. This particular subject should actually have a complete blog all by itself, as there is simply too much information to adequately cover here, just know that the vast majority of states in the country allow things in the landlord-tenant relationship that are simply against the law in Massachusetts.
Written rental agreements must clearly identify what is included in rent and what is not included in rent. As we previously discussed heat and hot water, which Massachusetts automatically assumes your providing as a landlord, and less expressly spelled out in a written rental agreement that it’s the tenant’s responsibility, you can be sued for not providing these to the tenant. Some items that should be clearly defined in a written rental agreement are: heat, hot water, electricity, gas, and other uses of the property (recreational facilities, off-street parking and washer/dryer).
Make sure all written rental agreements are signed before tenant moves in to the property.
I cannot tell you how many times I’ve seen landlords allow people to move in without completing all required paperwork. This also includes them signing the W9 that most banks require in order to establish a security deposit escrow account. If you accept rent and the tenant moves in, before a written rental agreement has been signed, you are stuck with a oral month-to-month agreement and cannot place any of the restrictions you may have wanted and included in the lease to be signed by the tenant, if the tenant moves in before signing said lease.
Finally, if you plan on making any reductions to rent for the tenant performing services for you, this must be expressly stated in a written rental agreement. You may want to reduce the tenant’s rent for doing certain tasks such as snow removal, taking out the garbage, or making repairs to the unit. If you have agreed to lower the rent because the tenant was going to take care of responsibilities that are that of the landlord and you do not completely spell out those responsibilities of the tenant in a written rental agreement, then you will be forced to accept the rent on the agreement and the tenant is not responsible to perform any of the duties you had agreed upon. Let’s say you’re going to take off $50 a month, every month, for the tenant removing all snow during the winter months. If that is not spelled out in a written rental agreement, you’re stuck with the reduction in rent, but the tenant will not have to remove the snow. This is the exact same situation for any services provided by the tenant, to the landlord, for reduction in rent or payment directly from the landlord.
Joseph F. Botelho, Esq.
BOTELHO LAW GROUP
Attorneys At Law
901 Eastern Ave.
Fall River, MA 02723