By Robert Nislick
Many Massachusetts landlords have encountered a tenant who has exploited the free rent trick. The tenant has fallen behind on the rent. The landlord needs to get paid. The landlord serves a 14-Day Notice to Quit for Nonpayment of Rent. Almost immediately, the tenant calls Boston Inspectional Services Department (ISD), or the local board of health, and complains about defective conditions in the apartment. Perhaps there are certain minor problems at the premises. Maybe the tenant has decided to break things on purpose. Whatever it is, the problems can be fixed and should be fixed by the landlord quickly.
Unfortunately, the tenant still is not paying. The landlord serves a Summary Process (Eviction) Summons and Complaint. The tenant asserts a defense or counterclaim concerning the condition of the premises under G. L. c. 239, § 8A. The tenant is buying time, but not paying rent. The eviction drags on even though the landlord has corrected the conditions to the satisfaction of the health department.
Fortunately, the landlord has a remedy. The Housing Court may issue a rent escrow order pursuant to its inherent equitable authority. The court can order the tenant to set up a new bank account and deposit the rent into that account every month until the case is decided. This gives the landlord some security he may not have had otherwise. At the end of the case, the court can order that some or all of the rent be paid to the landlord. A landlord can try to obtain such an order in a case where it appears the tenant is claiming that he or she is withholding rent with no good reason, and in particular, where the landlord has already remedied any bad conditions at the property. The tenant may lose credibility if she has claimed that she withheld rent due to bad conditions, when in fact she is spending the money on other things. Moreover, the court can enforce such a rent escrow order by holding the tenant in contempt, where there is a clear command and an equally clear and undoubted disobedience of the order.
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.