Review of the MassLandlords rental forms by a Boston Housing Court attorney. September 2017.
On September 18, Attorney Jordana Greenman gave a live review of the MassLandlords rental forms and shared her rental agreement best practices. Attorney Greenman is a title agent for First American Title Insurance Company and WFG, has a solo practice in downtown Boston, and has a deep knowledge of Housing Court staff and procedures. Here are some highlights from her talk. (Any errors in this article are our own.) This article contains legal information but not advice for your particular situation.
Overall, the MassLandlords rental forms are in good shape. It is advisable to consider carefully whether you want to use a self-extending lease. Self-extending leases might make you lazy about rent increases and may extend in large chunks, rather than month-to-month, which could sign you up for a tenancy you didn’t expect. Always understand the renewal terms before signing.
The MassLandlords application asks for ages of children under the age of 18. Attorney Greenman said that landlords should not ask for ages of minors because of the risk of a discrimination claim on the basis of family status. Attorney Greenman had a case start along these lines but was able to resolve it.
Note that occupants less than two years old are not counted for the purpose of square footage calculations and the sanitary code.
In the portion of the rental agreement where it says tenant will “pay for” damage caused, “reimburse” would be a better word.
In the subletting prohibitions clause, Airbnb should be listed by name as a prohibited activity.
In agreements where the lease may be terminated due to damage to the premises, it should specify that this happens only if the damage was outside the landlord’s control. Otherwise, the landlord could bulldoze the place purposefully, clearly not intended.
Regarding notices, Attorney Greenman shared her experience in Boston Courts that registered mail, not certified return receipt, will prove receipt. Certified return receipt comes with a card that must be filled out by the tenant. Registered will automatically show that it was delivered.
In discussing liability transfers, a landlord in the audience shared the tip that renter’s insurance comes with liability coverage, and that a landlord can make a claim if the tenant trashes the place, or if by their action or inaction the building comes to be ruined. This landlord requires it. It was believed that case law from the Western Division might have prohibited landlords from requiring renter’s insurance, but no one in the room could cite it. [If you know this case, please email firstname.lastname@example.org.]
Attorney Greenman shared her experience with TD Bank as being very well versed in the security deposit law and able to send tenants their annual statements. Attorney Greenman didn’t specifically recommend TD Bank, but did say that it was important to find a bank that knows how to handle a security deposit.
A good rental agreement establishes that tenants are to remove snow from around their car and clear their own driveway. Landlords need to focus on keeping the sidewalks and access ways clear.
In the MassLandlords “shower curtain clause,” residents should explicitly acknowledge that there is no water damage prior to signing.
If landlords are intrigued by the power of attorney section of the MassLandlords rental agreement, it would be much cleaner to have an entirely separate agreement drafted instead of relying on this short clause inside the lease.
There was some discussion of hoarding, but nothing in an agreement can prevent it. Hoarding remains an intractable problem. Landlords cannot enroll the tenant in mental health services. The only remedies seem to be enforcement of fire code, sanitary code, or rental agreement provisions that require the tenant to clean. These actions may end up in terminating the tenancy, but will not address the underlying behavioral challenges.
Landlords should always consult with an attorney before amending their rental agreements; attorneys will know the law best and will also be able to speak to regional variations in case law and court practice.