Rental Agreements with Attorney Mark Lee

This is part of the Worcester Rental Real Estate Networking and Training series.

 

[Start 0:00:00]

Mark: My name is Mark Lee. I’ve been practicing in Worcester for 20 years. I was tutored by Henry Raphaelson. Show of hands, yeah. Tutored by Henry Raphaelson, Peter Heintzelman.
Male Audience 1: Yeah.
Mark: Craig Ornell, Nick Moudios before he became courthouse staff, and I owe them a debt of gratitude for everything they’ve taught me. A good lawyer is a compendium of all his prior clients’ bad experiences . The invitation was to come and talk about lease forms and riders, so I put something together that I thought was a good basic fixed-term lease, a good basic month-to-month, and then I kind of went around to different forms, different places in the computer.
My highest compliment is if I [unintelligible 0:01:06] from you. If I see something good, I grab it and I scan it, and then I save it, and I try to label it so that I can find it again in the future. What I put together was some additional clauses to these basic forms, as well as some of the best riders I’ve seen.
What I’d like to see happen tonight is just by sort of sparking your memories as to bad situations like who sought 20 percent off a paint sample, those kinds of things that we get something going in the room tonight, sort of cue some thought about what your stock forms are, what they’re good at guarding against, and what potentially you may want to cover in the future.
Screen your tenants. First form I’ve included tonight and if there aren’t enough copies, I’d be happy to email what I’m speaking from tonight. First form is a tenant reference request. The book that I took this from actually said in writing, you’d mail it to a reference. My life experience is you call references, and I thought this was a good guide of questions to ask about the prior tenant.
Next form I have in the submission is the basic lease form. If we want to get the MassLandlords form up tonight, I’d be happy to go off of that, but both this form and the month-to-month agreement I’ve included tonight include what you need if you have to come and see me, or Henry, or Craig with an eviction, which is you got to identify the parties, you’ve got to identify the location. you need to identify the occupants, and if there’s a term, what the term is, what the rent is, and most importantly, when is it due.
I like this form because it also talks about common areas. I get a lot of phone calls from landlords who didn’t give the tenant use of the garage and didn’t give the tenant use of the basement and they have tenants who just like to collect stuff and it’s piling up, and the landlord doesn’t want to hire a dumpster when the landlord leaves.
I do a fair amount of TRO work in the housing court. That’s a temporary restraining order where you don’t want to evict the tenant but you want to solve the problem like hoarding, things like that where the tenant pays the rent but there are issues with common space infractions, things like that.
I like this form for defining that. I really like the occupants. It’s getting more and more important several years. We used to be able to do notices to quit to John Jones and all other occupants, and that would arguably give notice to everybody else living in the apartment when the constable put the notice to quit on the door.
A few years ago, they said, “No, you got to name everyone you .” It’s very important at the inception of the tenancy especially if you’re not allowing other people to move in during the tenancy to define the adults, absolutely the adults, and it doesn’t hurt to define the children. You don’t have to ever give a notice to quit to a child. You give a notice to quit to the illegal custodian and that covers the kid, but it’s not a bad idea if you’re a landlord who’s had tenants who move the village in after they moved in to define all the people who are going to be in the unit in the event you need to bring in an eviction for cause, for violation of this policy.
Did I see a hand go up?
Male Audience 2: The kid was 17 when they moved in, then they stayed there for 2 years, 19 now [unintelligible 0:05:03] to the lease, he’s still [unintelligible 0:05:06].
[0:05:07]
Mark: I don’t know that yet. I don’t know that you have to add them to the lease, but it wouldn’t be bad practice to let your housing court attorney know that this kid is probably of age and should be on the notice to quit.
Rich: Because we only have 1 microphone, I think what we can do is if you could just try to remember that, repeat the question.
Mark: Sure.
Rich: Then we won’t have to like run back and forth.
Mark: I just broke it. Is this still broken? No. Okay, his question was, “What if a tenant moves in with a child of 17 years old, and you have an eviction 2 years later, do you need to add them to the lease?”
My response would be no, but you know they’re an adult and they’re an occupant in the room and I would advise you either fill out our notice to quit with that person’s name on it or tell your attorney about it. Yes?
Male Audience 3: I have [unintelligible 0:06:06]. It did happen to me that I had a tenant like she won’t leave. She specified that she was going to be the only one on the lease, and a few months later, a guy she told me was babysitting [unintelligible 0:06:28] her boyfriend [laughter]. I never knew the name of the guy and the only way I can know the guy was living there because I have cameras on my property. I could see the guy coming and going. In the case like this, I wasn’t able to get his name somehow.
In a case like this, how do you get the name of the person if you want to serve them a notice to quit? Because what I’ve been doing, I’ve been doing exactly what I was advised to do by putting her name and all other occupants.
Mark: Okay, so the question is, “I have a tenant. She moves in. The babysitter turns out to the boyfriend, and I don’t know how he is. I don’t know how to identify him.” Does your lease say that only the occupants that signed the lease can be in the apartment?
Male Audience 3: Yeah.
Mark: Okay. If she’s another wise good tenant and maybe she isn’t because she doesn’t follow the lease, but if she is otherwise a good tenant, you could bring a TRO, putting her into court. She’s got to come to court and identify who her boyfriend is, and you then make a decision based on screening or whatever as to whether or not he’s going to be on the lease and he’s going to be your tenant, or you make a decision. It might take you a couple of hearings in court, but you make a decision that, “No, he’s not here and I want an order that says he can visit but he’s not staying over and I know if he’s going to be staying over because I’ve got cameras.” That’s one way of dealing with it.
The other way of dealing with it is just a notice to quit, and it’s not in these forms. But I think in the Boston form, they have a provision for a 7-day notice to quit for non-rent violations of the lease. I’ll tell you the first time I brought an eviction action on a 7, I was petrified because everything was 14 days, 30 days, 3 months, I was like, “A 7-day notice to quit and it’s not rooming house with a week-to-week tenancy?” I couldn’t believe it, but the Boston form has a provision in it that talks about those kinds of violations that you can get into court on a 7-day notice to quit. That’s pretty good, too.
Male Audience 3: I have that point of view because I know that some of you may have to deal with this situation. If you [unintelligible 0:09:24] I got [unintelligible 0:09:25].
Mark: Okay, so if you’re in housing court, you’re in the middle of an eviction and you find out there’s another adult in the unit and you want to get possession, you’re just finding out in court that there’s another adult in the unit. What do you do? You continue the hearing. If the other adult isn’t there, you continue the hearing. You get their name and you give them service and you come back to court because the court will not give you an execution for possession without everybody having their due process rights notice and an opportunity to be heard.
[0:10:04]
Nine out of 10 times, my experience in practice is everybody who thinks they’re affected by this shows up in court unless they’re just released from jail or they’ve got other issues, they’ve got other life problems. If they’re anywhere within the range of what we’d think of as normal, if one person is getting evicted, everybody else who thinks they’re affected shows up and they generally sign on to the complaint that day. They generally all make an agreement, so it’s not an issue.
But if I’ve got the place was rented to two people but now there’s 4 and only 2 show up, I continue the hearing, amend the complaint to add the other adults, serve them notice, and then come back because I don’t want to have an eviction against 2 people and then have another one against 4. I want to get it all done.
Male Audience 3: The other [unintelligible 0:11:08] any.
Rich: Can I have it? Okay. He just gave us like $1,000 in free legal advice right here. That was an awesome question and I think that’s something that we’re all concerned could happen and it’s happened with a lot of us.
The clerk’s answer to that question was you’re right and this is why it’s important to come to every meeting because that one was not online. If you just know what the person looks like, approximately 5 foot 10, male, bald head, eagle tattoo on his forehead, something like you put that on the notice to quit, you put that on your summary process form, the clerk says that that’s acceptable.
Having said that, our topic tonight is lease agreements and rental clauses, so we have all kinds of other topics we could discuss with an attorney. We’re going to save that stuff for another meeting. We want to focus everything we’re doing tonight just on the lease and just on the rental clauses. We only have a few minutes left. Could you guys help me out with that? Cool.
Mark: Paragraph 6 of both the lease and the month-to-month tenancy – yeah?
Female Audience 1: Can you just go back one second on the 7-day notice to quit because [unintelligible 0:12:21] —
Rich: The opposite of what we just talked about.
Female Audience 1: [unintelligible 0:12:19] is it the second form that talks about the 7-day notice?
Mark: If you look at the forms that I’ve given you tonight.
Female Audience 1: In here?
Mark: No. If you look at the forms I’ve given you tonight, it talks about things like moving people in, pet violations, smoking when you’re not supposed to be . In this lease says, “A 30-day notice to quit will be given for cause.” There is a Boston form that reduces that to 7, and if it’s in a lease, I don’t know about a month-to-month, but a lease, just the lease, not a month-to-month tenancy, you can have a 7-day notice to quit for those kinds of violations.
It can’t be rent. It can’t be rent. Rent is always a 14-day notice to quit, but you can shorten for violations of the lease, 7-day notice to quit and a summary process, and then you got to prove it. Any notice to quit for cause, you have to prove everything that you put in the notice or you don’t get possession.
This lease says a 30-day notice, I’ve seen leases that define a 7-day period and I have brought cases and it’s worked. That would have gotten into court that quickly.
Obviously, who’s going to pay what utilities. That’s always an important one in eviction. Agreements, and then if you skip through the month-to-month, I’ve included forms for last month, rent receipt, a lot of landlords don’t get those, a lot of landlords collect them, a lot of landlords still don’t know that you have to give interest on the last month’s rent.
I found this agreement. I thought this was interesting. It’s an agreement basically that says if a landlord is going to hold an apartment for you and you pay like $100 hold fee; if you don’t sign the lease, you forfeit the deposit.
Statement of condition, always good, but in the age of smartphones and camera phones, in Worcester, Judge Horan loves pictures. Have you ever been in front of Judge Horan?
Female Audience 2: Yeah.
Mark: Loves pictures. Your statement of condition can be written obviously, but if you go through the kitchen, the living room, the bathroom, take pictures of it and they’re date stamped, you bring those to court on your case for damages, that works great.
[0:15:06]
Security deposits, I went to 10 questions about that since it was raised, but notice for the accounting of the security deposit. Your lease always defines or your tenancy agreement always defines check off if you collected a security deposit. That meets the first prong of the statute.
This form is the second prong of the statute, and this is where I find a lot of landlords subject themselves to treble damages on the deposit when they don’t follow up after the money is in the bank within a reasonable time after you collect it, not 3 months after you collect it. Within a reasonable time after you collect it, you deposit it in a landlord tenant account so that if you go bankrupt, your creditors don’t get the money. It’s not yours. You give a notice in writing saying your deposit, your money is at TD Bank North or wherever in this account under this name. That’s a requirement of the statute.
If you don’t meet every requirement of the statute, you got to get rid of the deposit. If you receive the demand letter, you’re subject to damages. Yes, sir?
Male Audience 4: You say that’s supposed to be an escrow account but my bank has me put it in trust.
Mark: Trust account, that’s what it is. You are the trustee, holding the security deposit for the benefit of the tenant. You’re only entitled to it if the payment in rent or damages to the apartment. That’s the same idea.
Lead paint law notification, I still have a lot of landlords that don’t give those out. Please give those out.
Right of entry, I see a lot of leases that don’t define the right of entry. I’ve included a nice paragraph for that. you can enter on an emergency basis, but I’d rather have that defined because a lot of tenants will say, “If you end up going in their apartment without notice, they’re going to accuse you with theft.” That’s what I’ve seen. Putting something in that talks about your rights to enter.
Damage by fire and casualty, I included.
I also included an antiterrorism act more for commercial tenants, but you know what I don’t think it’s a bad clause to throw in because everybody is on the Internet and God only knows what they’re doing.
On that note, I would also say this was a thought I had at one of these meetings where somebody raised the issue of gun ownership. I don’t know that you can screen a tenant on the basis of gun ownership, but I do think it makes a lot of sense in your lease if you’re thinking about this clause to also have a clause in there about if you’re a gun owner, you’re going to keep that firearm locked and proper in accord with the law, and that no liability is assumed by you for renting that place to a gun owner.
Restrictions against transfer of the lease, subleasing, just as an aside, I don’t know of a sublease that’s ever worked out. Yes?
Male Audience 5: Yeah, the right to entrance.
Mark: Yeah. Right to entrance question. Go.
Male Audience 5: If you give a tenant 24-hour notice–
Mark: Yeah.
Male Audience 5: And they don’t respond, or if they do and say you can’t come in? Now what where does that leave you?
Mark: Do you have a clause in your lease that says you have the right to enter?
Male Audience 5: Yes.
Mark: And it’s on 24-hour notice?
Male Audience 5: That’s what it says.
Mark: And–
Male Audience 5: The landlord–
Mark: Give me a hypothetical, why do you want to enter?
Male Audience 5: Well, there’s two parts to this question, right?
Mark: Give me a hypothetical, why do you want to enter?
Male Audience 5: Hypothetical, all right. Got a phone call from the neighbor, smoke detectors are all going off in the house.
Mark: Yeah. Is that an emergency?
Male Audience 5: That’s an emergency, right?
Mark: Yes, so you enter.
Male Audience 5: Right.
Mark: To determine that there isn’t a fire in the premises.
Male Audience 5: It’s legal?
Mark: Yeah.
Male Audience 5: Okay, all right. Now I was also told and I will [unintelligible 0:19:21] somebody gave me and highlighted it, it also said that after a board of health agent had gone to the apartment and written up violations, it was illegal for the tenant to refuse the landlord occupancy to correct the sanitation violations.
Mark: I don’t know of that. I don’t know of that being illegal.
Male Audience 5: Okay.
Mark: What I know is in practice in Worcester County, if the tenant is refusing to give you access, you are wise to go get a court order. You can get a TRO within 7 days and it’s a court order that protects you. It protects you against “you stole something from us while you were in there,” but you should have something in your lease because if you don’t, you absolute have a court order if the tenant says no.
[0:20:30]
Male Audience 5: But if my lease is saying a 24-hour court order.
Mark: Yeah.
Male Audience 5: If it’s an emergency.
Mark: Yeah.
Male Audience 5: [unintelligible 0:20:35] because 7 days is not going to do me any good.
Mark: If the smoke detectors are going off.
Male Audience 5: Water is leaking out.
Mark: Yeah, I agree. I’m with you on that. I would go in with a witness.
Male Audience 5: Right.
Mark: Don’t go in alone.
Male Audience 5: Right.
Mark: And we’re talking about lease drafting here. If you’ve got a right to enter clause and you have to go get a TRO because the tenant is unreasonably refusing you access, you should include that court cost in there. It’s $135 filing fee and probably $50, $75 in service costs; those costs and fee should be factored in there if the tenant is unreasonably refusing you access.
I included a paragraph that I like, which is when you sell the building, your liability to the tenants ends. I like that, right? Yeah. We go some seller in here who fancy this.
I’ve included with riders, things I like. Smoke detector, carbon monoxide addendums, I included a couple of forms of those. That isn’t easy. I haven’t paid the rent. Knocked the smoke detector off, called the code department. These addendums say, “No, no. There are working smoke and carbon monoxide detectors at the apartment at the inception of the lease.” Enough said on that.
Mold addendum, everybody cares about mold. I grew up in the ‘70s; I don’t care about mold [laughter].
I love the renter’s insurance addendum. That’s just a smart thing to add to your boilerplate if you don’t already have it. You have an absolute contractual right to shift the burden of damage if there’s damage in the apartment. They were told to get a tenant policy. If they elect it, they chose not to get a tenant policy, that’s not your problem. I like shifting the burden on to the tenant for that.
Pest infestation, these are good riders. I was in court this morning on tenants they’re hoarders and they’re refusing to clean the apartment so that the pest remediation is effective. They’re refusing access. This is a great thing to have in your lease and to include costs that if you’ve got a hoarder. I mean that’s a big part of my practice. It’s a big part of my practice is people who can’t just throw anything away.
How do you address that, particularly if you have to take them to court because it’s a health and human safety violation? You see the fire hazard or it’s a roach motel for all the critters in the building and they are moving around the building and going to other apartments.
I also included a communication addendum, as far as there can be no confusion as to how to reach the landlord. No confusion as to how to reach the tenant. If you email or call the tenant at the number they gave, you’re presumed to have communicated with them.
I also included another landlord’s house rules. You can just reference house rules rider and just keep adding to it like don’t run the gas grill next to the building, those greatest hits.
I have yet to device something that addresses marijuana, growing marijuana because you can now in your apartment unless the landlord tells you can’t grow crops in your apartment. I think most smoke-free buildings, that addendum is going to address pot smoking, but I think the smoke-free addendum needs to be tweaked a little just to conform – yes?
Rich: You smoke pot, Mark [laughter]?
Mark: A long time ago, I may have.
Rich: Would January qualify as a long time ago [laughter]?
Mark: Longer than that.
Rich: Longer than that?
Mark: Longer than that.
Rich: I didn’t say which January, but okay [laughter]. The reason I asked that is because we had a speaker who came here, I believe it was in January. Was it January that we talked about marijuana? We had a speaker who came who actually was kind of enough to update our smoke-free addendum to include all kinds of language about marijuana.
[0:25:20]
Mark: Hands?
Rich: Were you here at that meeting, Mark?
Mark: I think I was. I think I was.
Rich: I don’t know if you’ve filled out a comment card at that meeting, but do you remember who the speaker was?
Mark: I think it was Mark Lee.
Rich: It was Mark Lee. Mark, he gave us a head start on this. It sounds like he’s not happy that it’s complete yet, but it’s better than nothing, right?
Mark: It is better than nothing.
Rich: Yeah, and it’s up on our website. Right, Doug?
Doug: I’m not sure if it’s up [unintelligible 0:25:46].
Rich: All right, Doug, is not sure if it’s up on the website yet, but in the meantime until–
Mark: Doug, what’s wrong with your short-term memory? Anything you want to talk about? [laughter] We did. We did that night, Senator Moore spoke that night and we did read off the statute. I think we did make some tweaks to it just so it conformed for the medical part of it. You can’t discriminate on the medical piece. Any more questions?
Rich: Speaking of discrimination — yeah, we’re going to open up to the group. This is going to be like the lightning rod. If you have a question about whether or not a particular clause is legal in your lease when I come to you, what I want you to say is, “My friend has this clause in their lease. I don’t know about this one. What do you think?” All right, so you don’t have to take any kind of blame for it being in yours. Does that sound good? Okay.
In addition to that, if you have one that you think is particularly sharp, that you want to share with the group, please do because there’s like hundreds of years of landlording experience in this room, right, and a lot of us have learned things the hard way and have done things that are pretty smart.
In our last like 6, 7, 8 minutes here, let’s try to get some of that stuff out. I’m going to try to get to everybody. Go ahead, put your hands up. All right because I’m lazy, I’m going right here first. All right, Bob has one.
Bob: A friend of mine has an addendum, an article in his tenant rental agreement that’s on the subletting. It says, “A tenant shall not assign or sublet any part or the whole of the premises nor permit any other person or persons to occupy the same or rent any room therein without first obtaining on each occasion the ascent in writing of the landlord. Additional tenants will result in a $100 per person rent increase.”
I’ve had single people come up to me and say, “My boyfriend is moving in with me.”
At which point, I say, “I want to get an application on him, and an updated application on you.”
Then she says to me, “I understand that my rent is going to increase $100 a month.”
I say, “Yes, it is.” We sign a new tenant rental agreement and everybody is happy especially me. Does that happen?
Mark: Yeah.
Rich: Your question is, is that legal and does that cover Airbnb?
Mark: [laughter] I was with you right up until the $100 a month rent increase, that you have an absolute right as an owner with the superior right to possession and you’re demising a possessory right to somebody else, you have every right in the world to define the terms of how that assignment is going to occur.
You haven’t had a problem because you haven’t gone to court and had somebody else decide whether or not that’s okay. Certainly, it’s okay if the parties agree to that, but I mean you can leave that in, but I don’t know that you can evict the tenant for not paying the $100 extra a month as a nonpayment case. You might evict the tenant because you didn’t approve of the new occupant, okay?
Someone else? Pass this back.
Female Audience 3: My friend [laughter]…
Mark: Unnamed source.
Female Audience 3: Has had the same tenants for 11 years and is going to rent to a new tenant for the first time, so will be using the lead notification form for the first time. The certificate of deleading is 10 years old, so I’m not familiar. I know there is the deleading notice that I need to give. Now where was lead in the apartment and it was deleaded, there’s a place to check. Am I telling them that there is no lead or I’m aware there was lead and it’s been taken care of.
[0:30:15]
Mark: The form says you have no knowledge. It allows you to check off that you have no knowledge of lead in the apartment.
Female Audience 3: There was.
Mark: Yes, and it was deleaded.
Female Audience 3: But…
Mark: You have no knowledge-
Female Audience 3: [unintelligible 0:30:32].
Mark: What are you saying? Is your question should I have it reinspected before I rent it? Based on what you’re telling me because you’re not comfortable checking off the box that says, “I have no knowledge the premises were deleaded,” now you could include the deleading certificate with your certification.
Female Audience 3: I certainly can do that.
Mark: Yeah.
Female Audience 3: But I don’t know if I’m giving the wrong answer. I can’t check it and say [unintelligible 0:31:05] deleaded, so I don’t know what the right answer is.
Mark: I think the right answer is sleep at night [laughter]. Why live your life in the rearview mirror? Really for a few hundred bucks to have somebody come through and either say, “Yeah, you’re good or maybe over here by the windows, this needs to get addressed because we weren’t really strict about that back in the ‘80s.” You sleep at night when-
Female Audience 3: [unintelligible 0:31:34] Thank you.
Mark: Next?
Rich: I have one.
Mark: Yeah?
Rich: You didn’t come back to me.
Mark: Okay, be that way. Hi!
Female Audience 4: Hi! What type of clause would you recommend in a lease for my friend who may have an issue with some tenants that their security deposit was not enough to cover damage and even though there were rental guarantees that we did send notices to those parents, they still never paid us or paid our friend [laughter].
Mark: I heard you mention guarantors.
Female Audience 4: Yes.
Mark: I don’t think there’s anything wrong if somebody is going to be parking a car on your premises to get a copy of registration or driver’s license because that’s a way to find people after they leave. Then with guarantors, you need to get similar information.
Female Audience 4: How long [unintelligible 0:32:42].
Mark: If you’re saying if you know how to serve the defendants, you file a claim for the damages.
Female Audience 4: Okay, so the question is that for the cost is going to be for filing a claim or getting an attorney involved, should I put a clause in my lease that would be also be passed on to them?
Mark: Absolutely!
Female Audience 4: And any fees at all?
Mark: Absolutely!
Female Audience 4: Okay.
Mark: In the event the tenant damages the apartment above the value of the security deposit and you’re found guilty, liable by a court of competent jurisdiction, you will be assessed all attorney’s fees and costs.
Female Audience 4: Okay.
Mark: Absolutely. Next?
Rich: All right, so Mark agreed to stay after the meeting. Right, Mark?
Mark: Nada.
Rich: No, he didn’t actually agree to that. I just totally put him on the spot. But in addition to that, Mark we’re going to put his contact information up on the message board. Here’s your contact information in the handout as well.
Mark: It is.
Rich: Okay, so if people have specific questions, they’d be able to reach out to you?
Mark: Yes.
Rich: Okay, so I’m just going to throw mine out there real quick because I actually stole this from somebody else. It is legal, my friend has something in his lease that says, “Lighting: residents acknowledge that any lighting outside the dwelling unit that is controlled by a switch inside the dwelling unit will be the resident’s responsibility and paid with their regular electric bill.” What say you, sir?
Mark: Landlord is not paying all electric?
Rich: Right, the light outside their apartment unit.
Audience: It’s the landlord’s responsibility?
Mark: Well, it’s the landlord’s responsibility to light the common areas, but the fact pattern is interesting because the tenant has the control on whether or not the light is on or not, and they’re billed for the usage. It is.
Audience: [unintelligible 0:34:44].
Mark: The better practice would be to have the exterior lights—I own a building that has common area lighting that’s on my meter, and the older units have that kitchen rear entrance light by the door and the tenant has control. I don’t think it’s a problem. I think you’re wise to cover it in the lease. I think your argument is if you have other exterior lighting to the building, you’re not asking the tenants to foot the bill for your obligation to provide.
[0:35:20]
Rich: Right, big difference.
Mark: Yeah, it’s optional whether or not they have the light on or not.
Rich: Perfect! That was fantastic. I know we could have done this for another long time. Let’s have a warm round of applause for Attorney Mark Tombly Lee.
Audience: [applause]
[End 0:35:53]

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