Questions and Answers for December 2015

Adapted from our Message Boards.

Q: Existing tenants want a dog. I have a full security deposit but I want additional financial assurance that the dog won’t damage the property. Can I offer to take refundable “pet rent”, set it aside, and refund it if the dog causes no damage?

We are not attorneys but we think this would be a problem for you if it were known what you are doing. Here is some relevant law (MGL Ch 186, Section 15B):

  • (b) At or prior to the commencement of any tenancy, no lessor may require a tenant or prospective tenant to pay any amount in excess of the following:
  • (iii) a security deposit equal to the first month’s rent

This section defines the maximum amount of a security deposit.  You already have the maximum amount.

And then:

  • (d) No lessor or successor in interest shall at any time subsequent to the commencement of a tenancy demand … a security deposit in excess of the amount allowed by this section.

Setting “pet rent” into escrow could be viewed by tenant advocates as a violation of this last clause. We would not feel confident making the case that a consenting adult had waived their fundamental tenant rights by permitting such an escrow, even if they had signed a piece of paper explicitly referring to Ch 186 Section 15B. We would also be concerned about the precedent for triple damages.

The best advice we have heard on the message boards and elsewhere is to first make sure it isn’t an emotional support animal/service animal, in which case any additional burden placed on that tenant might be viewed as discriminatory. Ask the tenants to state in writing their reason for getting the dog. (Don’t lead them by asking if it’s a service animal, ask an open-ended question.)

Then negotiate additional rent without calling it “pet rent” or giving it a separate line item on your modified rental agreement. And don’t offer to refund it. This should help you avoid legal gray area.

Q: I have a three unit with one narrow driveway as parking. The previous tenant had the driveway and moved out. Now both old tenants and the new one all want the driveway. What should I do?

If you have no preference, you might consider having an auction in two rounds. It would work like this:

  • Ask each tenant to text you how much more rent they’re willing to pay per month for parking. Tell them that they have to pay for their entire lease term (no canceling in March when the snow melts).
  • Collect bids and then text all the tenants back with the highest bid. Invite them all to submit a second, final bid. Offer the parking to the winner with a written addendum to the rental agreement and require the first month’s parking fee paid at signing.

The drawback of an auction, from the tenant’s point of view, is that it’s unusual, and you’re not offering the parking for free. The benefit is that everyone gets to swing for parking and if they miss they can console themselves with saving money.

By limiting it to two rounds, you’re reducing the chance any two people go crazy and bid up parking beyond what they can afford, leading to their eventual financial demise and eviction.

If you do have a preference, make sure you decide on the basis of financial reasons. Don’t give the parking to someone you like better because that will leave you open to claims of discrimination. Do give the parking to a good tenant who will leave if they don’t get it, or to the one with the most time remaining on their lease, or to the only one willing to sign a modification to the rental agreement.

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