By Robert Nislick
You are a Massachusetts landlord who has leased your property to a tenant. You have contracted with only one person. The tenant never told you that anyone else would be living in the apartment. You never agreed that anyone else could live in the unit except the tenant.
One day you discover that another person is living in the apartment with your tenant. You have no idea who this person is or where he came from. You do not want this person in your apartment. You do not want to owe any duties to this person. You want this trespasser off your property.
“The relationship between a landlord and a tenant is a contractual one created only by and with the consent of both parties. When a tenancy is created, an interest in the land is conveyed to the tenant, who assumes possession of the premises. A trespasser . . . is a person who enters or remains on the property of another without the property owner’s consent. A trespasser lacks any right at all to be on another’s property, and no tenancy can arise from a trespass.” Drago v. Doe, Boston Housing Court No. 06H84CV000314 (Sullivan, J.) (Nov. 27, 2006).
What can you do? The landlord should first look at the lease to see whether there is a clause that prohibits subletting. A common lease provision states:
“The Lessee shall not assign nor underlet any part of the whole of the leased premises, nor shall permit the leased premises to be occupied for a period longer than a temporary visit by anyone except the individuals specifically named in the first paragraph of this lease, their spouses, and any children born to them during the term of this lease or any extension or renewal thereof without first obtaining on each occasion the assent in writing of the Lessor.” (See Greater Boston Real Estate Board Standard Form Apartment Lease (Fixed Term) ¶ 28).
The landlord may want to pursue a for-cause eviction against the tenant. The tenant has breached the lease by allowing an unauthorized occupant or illegal subletter to reside in the apartment. The landlord should again look to the lease to see what kind of notice to quit must be given. For example, the lease may provide:
“If the Lessee shall fail to comply with any lawful term, condition, covenant, obligation, or agreement expressed herein or implied hereunder, or if the Lessee shall be declared bankrupt, or insolvent according to law or if any assignment of the Lessee’s property shall be made for the benefit of creditors, or if the premises appear to be abandoned then, and in any of the said cases and notwithstanding any license or waiver of any prior breach of any of the said terms, conditions, covenants, obligations, or agreements the Lessor, without necessity or requirement of making any entry may (subject to the Lessee’s rights under applicable law) terminate this lease by: 1. a seven (7) day written notice to the Lessee to vacate said leased premises in case of any breach except only for nonpayment of rent . . . .” (See Greater Boston Real Estate Board Standard Form Apartment Lease (Fixed Term) ¶ 24).
In that case, the landlord can have a 7-Day Notice to Quit served on the tenant, and then commence a summary process action in the appropriate Housing Court or District Court against the tenant. The landlord may also seek an injunction prohibiting the unauthorized occupant from entering the premises.
Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and the summary process session of the District Court.