You Have Tenants Rights... Use Them! [Subletting]

Most leases are 12-month commitments, so what is a student to do when they're in a 12-month lease yet want to leave Massachusetts for the summer? What if you're not a student but you want to travel or work in another city for more then a month? In these cases, most people look to "sublet" or rent your apartment to someone during your lease. The sublet or "sublease" creates a second lease on the apartment yet does not free you from your own obligations in terms of rent or utilities. 

Subletting can be a tricky topic considering many sublets are done illegally between peers to avoid a sublet fee or extra hassle by a landlord. Yet, there are many reasons why it is important to be on a lease and acknowledged by the landlord that you are subletting or residing in a subleased apartment.

How to Sublet 

To sublet, you must be a tenant with a lease. If your lease does prohibit subletting, you are free to do so. Most leases require a landlord give written consent prior to subletting. If your lease prohibits subletting and you sublet it anyway, you are putting yourself up for the possibility of eviction and financial penalties. 

The landlord may ask the subtenant to pay a security deposit. Under the security deposit law in MA, a landlord may not collect a security deposit greater than one month's rent. If a landlord has already collected 1 month's security deposit from the current tenant, he/she cannot ask the subtenant for additional money to surpass the one month's rent. 

Many people underestimate the importance of legally subletting and going through the landlord for a sublet. If an apartment is subleased without getting prior consent from the landlord, and something happens to the apartment, the person on the lease is going to be held responsible - even if a deal was worked out with the subleaser. Additionally, if the subleaser has an issue such as a necessary repair or needs to use any of the rights he/she has as a tenant, they cannot! Without a lease, a landlord is not obligated to respond to the subleaser's complaints or needs. Furthermore, if the landlord did not allow the subleaser, the landlord can legally evict the original tenant. 

A sublet fee is a common & legal. This portion of tenant and sublet law is unregulated.

Be Aware... 

• When a tenant sublets, regardless of if their subleaser pays the full rent, the tenant is still fully responsible to get the full rent to their landlord 
• It is legal, yet rare, for the landlord to request credit card information from the subleaser to ensure that their total portion of the rent is paid 
• Upon the landlord charging a sublet fee, this fee is imposed from the landlord to the landlord's tenant (the landlord's tenant is the tenant who signed the lease originally), therefore in the case of a sublet fee, how that fee gets paid is between the tenant and subleaser

 
As Credit Advocates wraps up it's series on Tenant Rights, Credit Advocates reminds everyone to be vigilant. Try not to rent a bedroom that is in actuality a walk-in closet, be aware of landlords who insist on cash, and be aware of your rights to ensure a safe & habitable place to come home to everyday!

As always, any Credit & Housing Counseling questions can be emailed to rsimon@creditadvocates.org. Even though this series is over, all Tenants Rights questions will be answered! Lastly, don't forget to return to Credit Advocates' blog to continue learning about your Student Loans! 



rsimon@creditadvocates.org | creditadvocates.org



Protecting your rights begins by knowing your rights! 

You Have Tenant's Rights... Use Them! Part 3

Thus far in Credit Advocates' series we have reviewed some of the rights that all tenants have in Massachusetts. However, what if the landlord does not comply after a health inspector visits? What if you have to handle an urgent situation on your own? 

Options If Your Landlord Refuses to Make Repairs

Withhold Rent

One way to get a landlords attention and force him/her to fix uninhabitable conditions is to withhold some or all of the rent until the repairs are made. This is called "rent withholding." 

Tenants have the right to withhold rent because landlords are obligated to provide safe and habitable housing under the warranty of habitability. If a landlord breaks this obligation, the tenant's obligation to pay the full rent is broken until repairs are made. The law does not state how much a tenant can withhold however be reasonable depending on the severity of the repair needed. 

In the case of rent withholding, it is imperative to do this correctly. Additionally, if you have been living in a boarding house for less than three consecutive months, you do not have the right to withhold rent. 

BEFORE WITHHOLDING SEE BELOW:

In order to be able to withhold rent, the tenant must be able to answer yes to ALL of these questions: 

• Do defective conditions exist in your apartment? 
• Do these conditions "endanger or materially impair" the health, safety, or well-being of anyone living in the home? 
• Does the landlord know about the defective conditions? 
• Were the conditions caused by someone or something other than yourself or someone under your control (such as a guest or a member of the rented space)? 
• Can your landlord make repairs without your having to permanently move out? 

If a tenant can answer yes to all five questions, they can legally withhold their rent and the landlord cannot evict them. If a landlord tries to evict the tenant(s) and you have properly withheld rent (aka having all five conditions apple prior to withholding rent) the landlord may be violating other laws (evictions called Retaliatory Evictions). 

Withholding Gives the Tenant the Power to Negotiate 

Rent withholding is the most direct and most successful way to force a landlord to make repairs. It is especially effective in a building where tenants agree to join together and withhold rent (only with others who the five conditions above apply to also). Upon withholding rent, tenants are in a better position to negotiate with the landlord about what they want. Examples of issues that can be negotiated can include: 

• The date when the landlord will start and complete repairs 
• How much rent will be paid or withheld while repairs are completed 
• How much of the withheld rent will be returned (if any) once repairs are properly completed 

Protect Oneself While Withholding Rent 

The right to withhold rent does NOT mean tenants can live in their apartment rent free. Rent withholding is a tactic used to get a landlord to make repairs. Once these repairs are completed, tenants must resume paying rent. 

The best way to protect oneself while withholding rent is to take the rent money and set it aside in a bank account separate from any other bank account that money is kept in (never keep a large amount of cash in an apartment). The law does not require a tenant's rent to be in a bank however there are several reasons why this is important. 

In the case that a landlord tries to evict a rent withholding tenant (assuming all five points required to withhold rent are filled), the tenant can show a judge that they have/had the money to pay rent and they did not stop paying because of the inability to pay. Setting up a separate bank account strengthens a tenants case and allows for increased credibility in the eyes of a judge if the tenant takes the landlord to court or the landlord attempts to evict the tenant. 

Additionally, if a judge orders the tenant to pay all or some of their rent, they are able to. If a judge orders the tenant to pay, and they don't, they can be evicted. It is highly unlikely that a judge finds conditions so terrible that 100% of the rent can be withheld. 

Note: Legally, once the landlord makes the repairs, the withheld rent does not automatically need to be given to the landlord. A tenant may opt to keep some of all of the rent withheld because of the impact the conditions had on the use of the apartment. Only a judge can order a tenant to pay the money. If the landlord takes the tenant to court, the tenant needs to explain to the judge how these conditions affected everyone living in the rented space. Depending on the situation, the judge may decide you can keep part of all of the withheld rent. 

Be Prepared For How a Landlord May React

While tenants in Massachusetts have the right to withhold rent, landlords may try to evict the tenants. The best way to protect oneself: 

• Document all the bad conditions
• Meet the requirements for withholding rent 
• Deposit the rent in a separate bank account 
• Use the sample Rent Withholding Letter to notify the landlord about the bad conditions 

A copy of a housing inspection report that accurately describes code violations is the best way to document violations of the state Sanitary Code. It's also proof the landlord knew about the conditions. Upon a landlord taking a tenant to court, if a judge finds that the tenant has followed all the legal requirements under rent withholding law, the tenant cannot be evicted. 

Repair & Deduct

Under certain conditions, tenants in Massachusetts have the legal right to make repairs and deduct up to four months rent to pay for them. This is referred to as "repair and deduct." The advantage of choosing repair and deduct is that the repairs get done. The disadvantage (although some may see it as another advantage) is that the tenant takes responsibility to making sure the repairs are done well. Repair and Deduct Letter 

When a Tenant Can Repair & Deduct

Alike withholding rent, all five of these requirements must be met in order for the tenant to repair & deduct: 

• Are there violations that "endanger or materially impair" the health, safety, or well-being of a tenant and has been certified by a housing inspector or that a court finds exist? 
• Have you ever given the landlord or her agent written notice of the violations? 
• Did the landlord fail to substantially complete repairs within 14 days after this notice, or within a shorter time if the housing inspector or court ordered this? 
• Were the conditions caused by someone or something other than yourself or someone under your control (such as a guest or member of the rented space)? 
• Have you given your landlord access to your home to make repairs? 

What a Tenant Can Repair 

Tenants are allowed by law to repair anything in their apartment or in the common areas of the building. If these are violations that affect several apartments or an entire building, a group of tenants can get together and have the repairs made. Be sure that everyone is in agreement, that the tenants have a certified Board of Health report documenting the problems, and that the landlord has been given written notice of the violations. Each and every tenant can deduct up to four months rent for their share of the total cost of repair. 

How Much Can Be Deducted 

In Massachusetts, a total of up to four months rent in any 12-month period can be deducted. These months cannot be stored up over years to then deduct more then four months rent in a single year. ALL BILLS AND RECEIPTS FOR MATERIALS AND LABOR MUST BE SAVED AS PROOF OF YOUR COSTS!! 

If the Landlord Thinks Too Much Was Deducted  

If the landlord feels the tenant has deducted too much for the repairs, he/she is allowed to go to court and try to get back some of this money. The law does NOT allow the landlord to evict a tenant if the court believes too much has been deducted. It is also illegal for landlords to raise the rent for repairs made legally under the repair & deduct statute (unless there is a court order permitting a rent increase yet this is very unlikely considering the lease that should have been signed will prohibit this). 

Credit Advocates strives to get as much useful information out to the public as possible. Our next post will be on Subletting & its Legalities. However, if there is an unanswered question on Housing OR Credit Counseling email me at rsimon@creditadvocates.org and I will answer any & all questions here on the blog! 

rsimon@creditadvocates.org  |  creditadvocates.org 

Protecting your rights begins by knowing your rights! 

You Have Tenants Rights... Use Them! Part 2

Tenant/Landlord disputes typically get resolved upon the assumption that the landlord is following all of the laws and regulations. This is not the case, especially regarding The State Sanitary Code and the Condition of an Apartment. 

There are many sections & clauses to the Massachusetts State Sanitary Code and requirements of the Department of Public Health. These requirements exist to ensure safe & habitable living conditions for tenants. It is imperative to know your rights AND what to do if they are being trampled upon. 

State Sanitary Code

In Massachusetts, the State Sanitary Code governs and defines what providing a habitable place, that is comfortable and clean enough for a person to live safely, entails. 

If a landlord does not respond to a tenant's complaints about a sanitary code violation, the tenant may request that a code enforcement officer or the local board of health inspect the apartment (Note: In Boston, it is the Housing Inspection Department which enforces the code). An inspector can then come to the apartment, review the conditions, and order the landlord to fix the problem if deemed necessary. If the landlord still neglects to fix the problem, a tenant may move out, even if there is as lease or rental agreement in place. The tenant can move out because the lease was not held up on the landlords end - tenants sign a lease with the rightful assumption of a sanitary & habitable place to live. If this is proven untrue, the agreement is broken and a tenant can move out penalty free. A tenant may also be able to pay a lower rental rate for what the unit is actually worth. 

If the apartment is (within reason) uninhabitable, a tenant is legally allowed to go to a motel/hotel until the problem is resolved and the landlord must reimburse the tenant for this. The tenant must make sure the landlord is fully aware of this and it is documented, otherwise the tenant will NOT be reimbursed. Additionally, this gives the landlord a push to fix the problem within the apartment. 

Here are a few of the provisions outlines in the State Sanitary Code which protects the safety and well-being of tenants and the general public: 

Water 

You must be provided with enough water, with adequate water pressure, to meet your ordinary needs. Under certain limited circumstances, you can be charged for water costs if it is clearly noted in your written and signed rental agreement and there is a separate meter you have access to for your unit. The landlord must also provide the facilities to heat water at a temperature between 110-130 degrees Fahrenheit. Your written tenancy agreement or lease may require you to pay for and provide the fuel to heat the water. 

Heat

The landlord must provide a heating system in good working order for every habitable room and every room containing a toilet, shower, or bathtub. The landlord must pay for the heat unless written otherwise in your lease. From September 16 to June 14, every room must be heated to at lease 68 degrees Fahrenheit between 7:00 AM and 11:00 PM, and at least 64 degrees Fahrenheit at all other hours. During the heating season, the maximum heat allowable in the apartment is 78 degrees Fahrenheit. The temperature should be able to be read. 

The Department of Public Health defines a "habitable room" as: a room or enclosed floor space used or intended to be used for living, sleeping, cooking, or eating purposes excluding rooms containing toilets, bathtubs or showers and excluding laundries, pantries, foyers, closets, & storage spaces. 

Natural Light and Electrical Outlets
There must be glass windows which admit light from the outdoors & which are equal in area or no less than 8% of the entire floor area of that room. Additionally, two separate wall-type outlets, or one outlet and one electric light fixture must be in each habitable room. The outlets should be placed in practical locations & be on different walls at least 10 ft apart. 

Extermination of Insects, Rodents and Skunks
It is the landlord's responsibility to maintain a premise free of all rodents, skunks, cockroaches, and ALL insects in their units and building, and if needed, exterminate such animals. 


An occupant should contact their landlord as soon as an infestation of any sort is suspected. Specifically regarding bed bugs - bed bug complaints can be directed to the Local Board of Health (LBOH), Health Department, or Inspectional Services Department (ISD) within the community. Minimum Standards of Fitness for Human Habitation requires the LBOH or ISD to inspect a unit within 24 hours. Landlords are required to inspect all units horizontally and vertically adjacent to an infested unit.It is important to create a paper trail and keep a log of everyone you have contacted, at which agency, and when you did so.

It is common for a landlord to attempt to hold tenants responsible for treatment/extermination costs. A landlord can even attempt to evict you for not paying these costs. However, this is NOT legal. It is the landlords responsibility to provide a habitable environment and to not adhere to this is a breach of the implied warranty of habitability. Additionally, a landlord cannot blame bed bugs or other infestations on the tenant (even if it is technically their fault the landlord is still responsible for extermination costs).

If the landlord does not immediately respond, the tenant is allowed to stay at a motel/hotel within reason and bill the landlord. It is imperative to know before you do this, you must inform the landlord of this and have it documented that there is an issue preventing you from having a habitable living environment. 


Conditions Deemed to Endanger or Impair Health or Safety 
The following conditions, when found to exist in residential premises, shall be deemed conditions which may endanger or impair the health, or safety & well-being of a person occupying the premises: 

• Failure to provide a supply of water sufficient in quantity, pressure and temperature, both hot & cold, to meet the ordinary needs of the occupant for a period of 24 hours or longer 
• Failure to provide heat as required or improper venting or use of a space heater or water heater 
• Shutoff and/or failure to restore electricity, gas or water 
• Failure to provide the electrical facilities and the lighting in common areas as required 
• Failure to provide a safe supply of water 
• Failure to provide a toilet & maintain a sewage disposal system 
• Failure to provide adequate exits and to ensure exits are not obstructed by any object such as garbage 
• Failure to comply with security requirements 
• Failure to comply with any provisions which may result in the accumulation of garbage, filth or other causes of illness and/or provide a food source for rodents, insects or other pests 
• The presence of lead-based paint
• Roof, foundation, or other structural defects that may expose the occupant to fire, burns, shock, accident or other dangers or impairment to health or safety
• Any defect in asbestos material used which may result in the release of asbestos dust or powder 
• Failure to provide a smoke detector or carbon monoxide detector alarm as required 
• Any of the following conditions which remain uncorrected for 5 days or more following the notice to the landlord: 
• Lack of a operable kitchen sink of sufficient size for washing dishes & utensils or lack of a. operable stove & oven 
• Failure to provide an operable sink & shower or bathtub 
• Any wiring defect which makes any system a hazard 
• Failure to maintain a safe handrail or protective railing for every stairway, porch, balcony, & roof 
• Failure to eliminate rodents, pests & any infestation 

The full Department of Public Health, Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter II) can be viewed here. 

Return to read about what justifies tenants paying less rent and local law on Rent Withholding, Repair-and-Deduct & Landlord Retaliation. 

Credit Advocates is constantly looking to educate the public on all credit & housing counseling matters. For all questions answered you can email me at rsimon@creditadvocates.org. 

rsimon@creditadvocates.org | creditadvocates.org  

Protecting your rights begins by knowing your rights! 

You're Have Tenant's Rights... Use Them!

Renters rights are not typically what students read about upon moving into their first (or even 5th) apartment. However, in order to protect yourself against neglectful landlords and hold your landlord accountable for what he/she is responsible for, you must know your rights. 

As Credit Advocates expands to Massachusetts, it acknowledges the over 200,000 students studying in and around Boston. To the students of Massachusetts and all others who are renting their home, these are your Tenants Rights... 


Finder's Fee
Only a licensed real estate broker or salesperson can charge you a fee for the purpose of finding an apartment. The amount due & the date must be disclosed to you prior to any transaction. There is no set fee - it's a contractual arrangement between the licensed broker or salesperson and you. 

Pre-payments 
Prior to moving in, the landlord can ONLY collect first & last months rent, one month's security deposit, and purchase & installation costs for a lock and key. 

Before Agreeing to a Tenancy (aka Singing a Lease) 

• Do not put money down unless you are 100% you want the apartment - although you may be legally entitled to the return of your money up until the landlord formally accepts you as a tenant, this money may be difficult to recover
• Calculate the anticipated costs of utilities 
• Know what is expected of you in terms of pre-payments or a finder's fee 
• Ensure the apartment is in acceptable conditions - put all agreements for repairs in writing
• Talk with perspective neighbors & previous tenants about the reputation of the landlord and management company 

Rental Agreements

According to state consumer protection regulations, a landlord must include the following in the written rental agreement: 

• Names, addresses, and telephone numbers of the owners and other people responsible for care, maintenance, and repairs on the property 
• Names, addresses, and telephone numbers of the person authorized to receive notices of violations of the law and to accept notice of a lawsuit on behalf of the owner (this is NOT YOU) 
• The amount of the security deposit and disclosure of the rights under the Security Deposit Law

If a landlord uses a lease that contains any provision that conflicts with the Security Deposit Law & attempts to enforce that provision or attempts to obtain from you or a perspective tenant a waiver of any provision of the Security Deposit Law, the landlord cannot keep your security deposit for any reason INCLUDING making deductions for damages. 

The landlord also MUST give you an executed copy of the rental agreement within 30 days of your signing it. You and your landlord may agree verbally to terms however you must legally have this in writing 

Security Deposits

Receipts 

Upon receiving last month's rent and/or a security deposit, the landlord must give you a receipt for each pre-payment. If the landlord collects last month's rent, he/she must give you a statement indicating that you are entitled to interest on this rent & that you should provide a forwarding address at the termination of tenancy where interest can be sent. 

Interest

The landlord must may interest on BOTH the security deposit and last month's rent. The payment of interest on the security deposit & last month's rent has been required by law since January 1, 1972 and April 1, 1984 respectively. 

Security Deposit 

You are entitled to either 5% interest or whatever lesser amount is received from the bank where the deposit has been held if you live in an apartment for a year or more. The law requires the landlord to hold a security deposit in a separate, interest-bearing account in a Massachusetts bank. The landlord must provide the tenant with the name and address of the bank holding the security deposit & the account number. Each year, the landlord must either pay the tenant the interest on the security deposit or let the tenant deduct that amount from a rent payment. 

The landlord should give the tenant a "statement of condition" within 10 days of receipt of the security deposit - this describes the condition of the apartment and any damage that exists at that time. 

The tenant then has 15 days to add to the "statement of condition" or make changes to it. 

When the tenancy ends, the landlord must return the security deposit, plus interest, WITHIN 30 DAYS. However, the landlord can keep any unpaid rent & the amount needed to repair damage done to the apartment (beyond normal wear & tear). 

If the landlord must keep all or a part of the security deposit for damages, then the landlord must give the tenant a written description of the damage and an estimate for the repair cost within 30 days from the time the tenant moves out. 

Check back for more information about Last Month's Rent, State Sanitary Code & the Condition of an Apartment, transfers of landlords & other housing topics. 

For all questions answered you can email rsimon@creditadvocates.org 

rsimon@creditadvocates.org | creditadvocates.org 

Protecting your rights begins by knowing your rights!