The Legal Corner: May a Landlord Charge an Application Fee?

This article explains why some charge application fees. Hint: they are not landlords.

Attorney Stanley Komack, Record Title and Law Office. Published in local landlord newsletters.

The answer is “No, a landlord may not charge an application fee,” with one exception.

Massachusetts General Laws Chapter 186 § 15B(1)(b) states that “[a]t 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:

(i)           rent for the first full month of occupancy; and,
(ii)          rent for the last full month of occupancy calculated at the same rate as the first month; and,
(iii)         a security deposit equal to the first month’s rent provided that such security deposit is deposited as required by subsection (3) and that the tenant is given the statement of condition as required by subsection (2); and,
(iv)         the purchase and installation cost for a key and lock.”

In the matter of Omwaner v. Naite, et al, (Pierce, J) Boston Division Housing Court No. 05-SP-00216 (October 25, 2005), the Court stated in part:  “G.L. c. 186, s. 15B(1)(b) provides that a landlord may not require a tenant or prospective tenant to pay in excess of first month’s rent, last month’s rent, a security deposit of one month’s rent, and the cost of purchasing and installing a key and lock.  Fees paid by a tenant or a prospective tenant to a licensed real estate broker employed by a landlord are excluded from this limitation [with full written disclosure in accordance with 254 CMR 7.00].  G.L. c. 186, 15B does not authorize the plaintiff to charge a tenant an application fee” [emphasis added].

Furthermore, the inability of a landlord to charge an application fee is also stated in 940 CMR 3.17, Landlord-Tenant, section (4)(a) by reiterating that  “[i]t shall be an unfair or deceptive practice (M.G.L. ch. 93A) for an owner to  require a tenant or prospective tenant, at or prior to the commencement of any tenancy, to pay any amount in excess of  . . .”  the above-listed four items in M.G.L. ch. 186, §15B(1)(b).

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