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!