PRACTICE AREAS:
LAND LORDS AND TENANTS

At first blush, the landlord-tenant relationship seems relatively simple. A tenant pays rent for an apartment or house. The landlord provides the apartment or house. No problems, right? Wrong! The landlord-tenant relationship is one prone to problems and disputes. Here are some of the most common causes of those disputes, and how you can avoid them:

1. Security Deposits :

A landlord accepting a security deposit is restricted in how he or she deals with the deposit. The deposit must be deposited in an account beyond the reach of the landlord's creditors and the landlord must inform the tenant in writing upon receipt of the deposit of the bank where the deposit is being held, and the name and account number. Interest on the deposit must be paid annually. Landlords should provide the bank with the tenant's social security number and have interest reported in the tenant's name for tax purposes. At the beginning of a tenancy, a landlord cannot demand from the tenant in excess of first and last month's rent, a security deposit, and an amount sufficient to cover the cost of a new lock and key.

The landlord is required to account for the deposit within 30 days of the tenant's vacating the apartment or house. The landlord can only deduct from the deposit (a) unpaid rent; and (b) amounts to repair damage beyond “reasonable wear and tear”. Damages must be documented through bills or estimates and must accompany the letter of accounting. The letter must also be signed under the pains and penalties of perjury and should be sent by certified mail to avoid disputes as to when it was sent.

2. Condition of the Dwelling

Landlords are required to maintain rental housing in conformity with the State Sanitary Code, a complex set of regulations that are enforced by the Health Department of the city or town in which the rental unit is located. Tenants may withhold their rent in the event that their rental housing does not comply with the Code (but are recommended to open a separate escrow account and to place the withheld rent in that account), but the safe method for withholding rent is to first contact the local health department, arrange for an inspector to visit the apartment or house, and then, if violations of the Code are found, to withhold rent (and send a letter or e-mail to the landlord confirming same) only at that time.

To those of you who are landlords or wish to become one: Respond promptly to your tenants' concerns. Have your property professionally managed, or at least have a maintenance person or “handyman” on call so that you or the tenant may have repairs made on an expedited or emergency basis.

3. Eviction Notices

Many landlords continue to disregard the rigid requirements for terminating tenancies. The process of terminating tenancies is highly technical and if not done correctly can expose a landlord to liability. Here are some important tips for dealing with the end of tenancies:

•  For tenancies at will—otherwise known as “month-to-month” tenancies—the landlord need to provide notice equal to at least the interval with which rent is paid. So if a tenant pays rent on a monthly basis, the notice must be served at least one month in advance of the termination date. Additionally, the date of termination must be immediately prior to the date on which rent would otherwise be due. So if rent is due on the first month, the tenancy must be terminated effective on the last day of the prior month. Additionally, the notice should be served by either a sheriff or constable.

•  In non-payment-of-rent situations, the notice needs to give the tenant 14 days to pay any past due rent. Once again the notice cannot be served by regular mail or in hand by the landlord, but should be served by a constable or sheriff.

•  Tenants who are on a lease that has expired do not need to have their tenancies terminated by a notice of termination, though with other tenancies, landlords must go through the court eviction process.

4. Lead Paint

The housing stock in Greater Boston is older than most parts of the country, and thus a significant percentage of rental housing still contains lead paint. Landlords who rent housing to families with a child under six years of age have an obligation to remove lead paint from the premises. Removal can only be accomplished by a licensed lead paint abatement contractor. The scope of lead paint removal is determined by the local health department. Landlords are also prohibited from refusing to rent to a family with a child under six if the refusal is based on the presence of lead paint in the premises.