By Robert Nislick
Massachusetts landlords frequently ask whether they can enter their tenant’s rental unit during the term of the lease. The landlord may have many valid reasons for wanting to enter the apartment. Oftentimes, a tenant’s lease will be up soon, the landlord has decided not to renew the lease, and the landlord wants to show the unit to prospective renters. Similarly, a landlord might want to sell his rental property, and wants access so that he can take photographs, and schedule showings.
As a landlord, you may have always had a cordial relationship with your tenant. Then you tell him or her that you need to get in so that you can show the apartment. Almost instantly, your relationship changes. Now the tenant has become uncooperative and says that he or she cannot or will not move. Nor will the tenant allow you to show the property. This conduct may torpedo your ability to sell the property, especially if you are under a purchase and sale agreement, and must deliver full possession of the premises free of all tenants and occupants at the time of the delivery of the deed. (See Greater Boston Real Estate Board Standard Form Purchase & Sale Agreement ¶ 9).
A professional tenant may unfairly try to exert power over the landlord in a situation like this. What rights does the landlord have to enter the apartment? What should the landlord know so that he can avoid falling into a trap?
G. L. c. 186, § 15B (1) (a), states:
No lease relating to residential real property shall contain a provision that a lessor may, except to inspect the premises, to make repairs thereto or to show the same to a prospective tenant, purchaser, mortgagee or its agents, enter the premises before the termination date of such lease. A lessor may, however, enter such premises:
(i) in accordance with a court order;
(ii) if the premises appear to have been abandoned by the lessee; or
(iii) to inspect, within the last thirty days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, the premises for the purpose of determining the amount of damage, if any, to the premises which would be cause for deduction from any security deposit held by the lessor pursuant to this section.
“It shall be an unfair and deceptive practice for an owner to: . . . (e) Enter a dwelling unit other than (i) to inspect the premises, or (ii) to make repairs thereto, or (iii) to show the same to a prospective tenant, purchaser, mortgagee or its agents, or (iv) pursuant to a court order, or (v) if the premises appear to have been abandoned by the tenant, or (vi) to inspect, during the last 30 days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, for the purpose of determining the amount of damage, if any, to the premises which would be cause of reduction from any security deposit held by the owner.” 940 Code Mass. Regs. § 3.17(6)(e).
“When a landlord rents an apartment to a tenant, he gives up his right to enter. Ordinarily, absent a contractual agreement or the tenant’s permission, the landlord can neither inspect for defects nor make repairs on the rented premises. See G. L. c. 186, Section 15B (1) (a).” Young v. Garwacki, 380 Mass. 162, 170 (1980). “No person shall make an entry into land or tenements except in cases where his entry is allowed by law . . . .” G. L. c. 184, § 18.
Essentially, it appears that where the lease is silent or where there is no agreement between landlord and tenant, the statute allows entry only in accordance with a court order, if the premises appear to have been abandoned by the lessee, or to inspect, within the last thirty days of the tenancy or after either party has given notice of their intention to terminate the tenancy, for the purpose of determining damage which would be cause to deduct from a security deposit.
Alternatively, the lease may contain a provision such as: “The Lessor may enter upon the leased premises to make repairs thereto, to inspect the premises, or to show the premises to prospective tenants, purchasers, or mortgagees. The Lessor may also enter upon the said premises if same appear to have been abandoned by the Lessee or as otherwise permitted by law.” (See Greater Boston Real Estate Board Standard Form Apartment Lease (Fixed Term) ¶ 23).
Without a valid lease provision or the tenant’s permission, the statute standing alone does not appear to authorize landlord entry for the sole purpose of showing the premises to prospective tenants, purchasers, or mortgagees. Moreover, it appears that a valid lease provision, the tenant’s permission, or a court order is required in order for the landlord to inspect for defects or to make repairs.
This sounds excessively harsh to the landlord, who may be operating in good faith, but has unexpectedly found himself in a tough spot with his tenant, and especially where the landlord needs to sell the premises or show it to a new renter. The tenant should not act unfairly toward the landlord, and vice versa. Unfortunately, where the tenant has dug in his heels, the landlord may ultimately find that he has no choice but to evict the tenant through summary process, provided he has a basis to do so.
Robert Nislick is a Massachusetts landlord-tenant lawyer who has practiced in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and the summary process session of the District Court.