By Alan Fanger
In recent years there has been a significant amount of litigation concerning security deposits in residential tenancies. Although the security deposit law in Massachusetts still presents some uncertainties, certain aspects of it remain unchanged and afford substantial rights to tenants.
In Massachusetts, as a tenant, you have the automatic right to damages in the amount of three times your deposit, along with attorney’s fees, if a landlord does any of the following:
1. Fails to place the deposit in an account that is beyond the reach of his creditors;
2. Fails to transfer the deposit to his “successor in interest” (e.g. new owner);
3. Fails to return the deposit within 30 days of the tenant’s termination of occupancy.
Each of these are violations that are “non-negotiable” from a legal standpoint; that is, if you prove it, you’re entitled to the triple damages and attorney’s fees remedy…and there is no judicial discretion.
There is a second class of claims for which triple damages and attorney’s fees are recoverable, but only if the landlord fails to return the deposit after written demand. These include the following:
1. Failure of the landlord to furnish the tenant with an itemized list of damages resulting in deductions from the deposit, including with that list written estimates, bills or receipts to support of each deduction;
2. Failure of the landlord to sign the itemization under the pains and penalties of perjury.
In these instances, the tenant has the right to immediate return of the deposit upon written demand; if the landlord fails to return the deposit after this demand, triple damages and attorney’s fees are recoverable.
There is a third class of claims where triple damages and attorney’s fees might be recoverable; this is where a landlord, in bad faith, attempts to deduct from the security deposit amounts that are not justified. This would include the following:
1. Amounts to repair “reasonable wear and tear” caused during the tenancy;
2. The use of phony or inflated estimates or receipts.
In all probability, a court hearing this matter with either of the previous two factual scenarios would find, or instruct the jury, that in order to find the landlord responsible for triple damages, it would have to find that the landlord made these deductions in bad faith.
Finally, bear in mind that the landlord’s failure to properly handle the security deposit does not prevent him/her from suing a tenant independently for damage to the premises.
If you have a security deposit claim, call Alan to schedule a consultation.
Alan Fanger is a litigation attorney concentrating in matters involving real estate including security deposit claims. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.