Fourteen Days Notice to Quit For Nonpayment of Rent in Massachusetts

Worcester_District_Court_-_DSC05741

By Robert Nislick

You are a Massachusetts landlord. Your tenant is not paying rent. You want to evict him. What can you do to get the eviction process started?

Most landlords know that before you can evict a tenant for nonpayment of rent, the landlord must serve, and the tenant must receive, a fourteen-day notice to quit for nonpayment of rent.

If all you are looking for is a form, then here is a link to a form that is available on the Massachusetts Court System web site:

http://www.mass.gov/courts/docs/lawlib/docs/notice-quit-14.pdf

Here is a link to another form that is available on the Plymouth County Sheriff’s Department web site:

http://www.pcsdma.org/Forms/14%20Day%20Notice%20to%20Quit.pdf

Here is a link to another form that is available on the Suffolk County Sheriff’s Department web site:

http://www.suffolksheriffma.com/14_Day_Notice_To_Quit.pdf

Even though these forms are available to use for free, there is no substitute for having an experienced Massachusetts landlord-tenant lawyer handle the eviction from start to finish. This includes drafting the notice to quit. Some landlords think they can do an eviction on their own, or maybe do the notice to quit themselves, and then hire an attorney to show up at court on the day of trial. I would not recommend that approach.

Even if one of these forms might work, it might be completely inappropriate to use one of them. Although I am providing links to these forms, I am certainly not advising that everyone or anyone use them. Something slightly different or completely different might be necessary based on the specific facts. It may be that your case is a simple nonpayment of rent case, and the service of a 14-day notice to quit would be best. It might not be, however. It is common for landlords to have misconceptions about how to terminate a tenancy and how best to move the ball down the field.

An experienced landlord-tenant attorney may see your case differently. There are various situations in which I may advise proceeding with a 7-day notice to quit, or a 30-day notice to quit, or a 90-day notice to quit, or an immediate termination, or a notice that provides a holdover tenant less than seven days to vacate.

The circumstances might be such that serving any notice to quit would be less than prudent, and an alternative course of action would be better. Additionally, issues of timing in the eviction process are important, and are too numerous to discuss in this article.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Framingham Landlords Must Obtain Inspection and Certification of Rental Units

1024px-Framingham_Memorial_-_Framingham,_MA_-DSC00228By Robert Nislick

Pursuant to the Framingham Health Department’s Rental Unit Certification Regulation, most landlords of residential properties in Framingham are required to apply for and obtain a certificate from the Board of Health before commencing any new tenancy or occupancy in a rental unit.

The regulation is, “intended to protect the public health and general welfare, and the health, safety and well-being of the occupants of rental housing.” (See Regulation, § A).

The landlord has to file an Application for a Dwelling Unit Certificate and pay a non-refundable $75.00 fee, at the Memorial Building, 150 Concord Street, Framingham. The Health Department will then inspect the “rental unit to assure compliance with Minimum Standards of Fitness for Human Habitation, as set forth in the State Sanitary Code, and Housing Standards and regulations, as adopted by the Framingham Board of Health.” (See Regulation, § D).

“The Director of Public Health . . . shall issue a Rental Unit Inspection Certificate for each unit found to be in compliance or, if a rental unit fails to meet the minimum standards . . . shall issue a Housing Inspection Report and an Order to Correct Deficiencies. Said order shall establish the date by which corrections must be completed and shall provide notice that proper permits must be obtained for any work done under the order.” (Regulation, § D).

If an Order to Correct Deficiencies has been issued, the owner may request a re-inspection, and pay a $25.00 re-inspection fee. (See Regulation, § D).

“Upon completion of the required corrections and verification that proper permits have been obtained, a Rental Unit Inspection Certificate shall be issued.” (Regulation, § D).

Landlords in Framingham would be well advised to go through the inspection and certification process before renting their units. The Health Department’s inspection criteria matches with the State Sanitary Code, with which every landlord is obligated to comply. One benefit to landlords is that if the inspector comes out and certifies that the premises are fine, the landlord will have a benchmark in the event that a tenant complains later about bad conditions.

The MetroWest Daily News wrote a good article titled, “New Rules Set for Framingham Landlords”, when this important program was first announced in 2014.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices regularly in the Framingham District Court, and also in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and Western Housing Court.

Landlord and Tenant Issues Related to The Regulation and Taxation of Marijuana Act

By Robert Nislick

On Election Day 2016, Massachusetts voters approved Question 4, and passed The Regulation and Taxation of Marijuana Act. One purpose of the act is to “make marijuana legal for adults 21 years of age or older”. See Act, § 1. The act will take effect on December 15, 2016. See Act, § 12.

The legalization of marijuana will affect Massachusetts landlords and tenants. The portion of the Act dealing with the regulation of the use of marijuana not medically prescribed, states in pertinent part:

“This chapter shall not be construed to:

(1) prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation;

(2) prevent the commonwealth, a subdivision thereof or local government agency from prohibiting or otherwise regulating the possession or consumption of marijuana or marijuana accessories within a building owned, leased or occupied by the commonwealth, a political subdivision of the commonwealth or an agency of the commonwealth or a political subdivision of the commonwealth; . . . .”

Act § 5, G. L. c. 94G, § 2 (d).

Essentially, a landlord can prohibit a tenant from smoking marijuana in the leased premises. The landlord may want to have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will prohibit the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit. For additional insight, please read my companion article, “Smoking and Evictions in Massachusetts”.

However, a landlord cannot prohibit a tenant from consuming marijuana by means other than smoking, unless failing to do so would cause the landlord to violate a federal law or regulation. One interesting feature of the new law, which many private landlords will consider unfair, is that it provides the commonwealth and local governments with the ability to prohibit tenants from possessing or consuming marijuana, outright and in all forms, in a building owned by the government, whereas the private landlord can essentially only prohibit smoking.

Additionally, the portion of the Act dealing with personal use of marijuana states in pertinent part:

“[A] person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: . . . (2) within the person’s primary residence, possessing up to 10 ounces of marijuana and any marijuana produced by marijuana plants cultivated on the premises and possessing, cultivating or processing not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once;”.

Act § 5, G. L. c. 94G, § 7 (a).

Essentially, a tenant can cultivate twelve marijuana plants in his primary residence. This requires water, electricity, and heat. It is easy to envision how a tenant may be growing his dime bag on the landlord’s dime.

Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. “[A] writing is required when the obligation to provide heat and hot water is transferred to the tenant.” Young v. Patakonis, 24 Mass. App. Ct. 907, 908-909 (1987). Concerning the cost of water, G. L. c. 186, § 22, allows a landlord, under certain circumstances, to bill the tenant for water for his water usage. However, the landlord must satisfy many onerous requirements before qualifying to bill the tenant for his water usage.

With approximately 11,000 summary process cases having been filed in the Boston Housing Court and Worcester Housing Court in 2015, with many thousands more filed in the other divisions of the housing court, and in the district court, it is safe to assume that the new marijuana law will become the subject of litigation between landlords and tenants.

Landlords, property managers, and tenants should seek legal counsel to help them navigate through the haze.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Stays of Execution in Massachusetts Landlord and Tenant Cases

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

You tried your case and the court found that you are entitled to a judgment and execution for possession, or perhaps you entered into a Summary Process Agreement for Judgment with your tenants, which requires them to vacate by a certain date.

A couple of weeks pass and the tenants still have not moved out. They have no intention of leaving. In fact, the tenants want to stay even longer. The tenants file a Motion to Stay Execution. Essentially, the tenants are asking the court to give them even more time to move.

Do the tenants have any grounds for seeking more time, even though they have already lost their case?

If the eviction was a no-fault eviction, rather than an eviction for nonpayment of rent, then the court can grant the tenant a six-month stay, or if the tenant is handicapped or at least 60 years old, then the court can grant the tenant a twelve-month stay. See G. L. c. 239, § 9.

The tenant must demonstrate that he, “cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted”. See G. L. c. 239, § 10.

How can the landlord oppose the tenant’s efforts?

Let me first digress to say that, in my opinion, a landlord should always hire an attorney to handle the eviction from start to finish. I have heard way too many stories from landlords who thought they could save a few bucks by doing it themselves, only to find that they have made mistakes that cost them time and money. The experienced lawyer can anticipate obstacles that may arise, and also avoid traps for the unwary.

Primarily, the landlord will want to point out that if the eviction was brought for nonpayment of rent, the tenant is not entitled to a stay, as a matter of law. If the eviction was a no-fault eviction, however, the landlord will need to counter the tenant’s arguments that he meets the criteria for a stay.

In any event, if the court grants a stay, G. L. c. 239, § 11, requires essentially that a stay shall be conditioned upon the tenant’s depositing into court for occupation of the premises during the stay the amount he was paying for rent previously, any additional amount the court deems reasonable, and all unpaid rent prior to the stay. The statute also provides that the court to shall pay to the landlord the amounts deposited into court.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Don’t Do It – The Case Against Taking a Security Deposit in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. A new tenant is about to lease your house or apartment from you. You would like to take a security deposit from this person.

In the event that the tenant damages the property or fails to pay rent, the idea of having a security deposit available to cover these costs may seem like a good idea. Most landlords probably don’t appreciate the irony that taking a security deposit, in reality, subjects them to a great deal of risk.

If you knew that you could make an honest mistake and still end up having to pay the tenant three times the security deposit, five percent interest, court costs, and the tenant’s attorney’s fees, would you still take one?

Let’s say you took a $2,000.00 security deposit. For whatever reason, you failed to place these funds in a separate bank account. Alternatively, you failed to return the security deposit to the tenant within thirty days after the end of the tenancy.

Under these scenarios, the security deposit law states that, “the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.” See G. L. c. 186, § 15B (7).

The landlord could easily have to pay the tenant more than $7,000.00. Additionally, once a judgment enters, it grows at 12% per year.

Let’s say the tenant sues the landlord to recover her security deposit. Suppose the tenant has damaged the premises. The statute sets forth five separate situations in which the landlord would be barred from filing a counterclaim for damage to the premises. See G. L. c. 186, § 15B (6). The landlord, however, would not be entirely without a remedy. He would have to file a separate civil suit against the tenant to recover for property damage. Nevertheless, the statute forces the landlord to take a more convoluted procedural route than a defendant, in most other kinds of cases, normally has to take.

Suppose the tenant files a small claim against the landlord to recover a security deposit and wins. The landlord wishes to appeal. Under G. L. c. 218, § 23, the landlord would have to provide a bond in an amount roughly equal to the amount of the judgment that entered against him, in order to appeal and have a new trial.

Let’s back up for a moment. Imagine that a tenant who just moved out has wrecked the place. The landlord wants to deduct from the security deposit to repair damage caused by the tenant beyond reasonable wear and tear. Even if the landlord follows the statute to the letter in making the deduction, the tenant may still disagree and choose to file suit. A landlord could easily find himself forced to expend time and resources defending against what appears to be a frivolous or meritless lawsuit.

Under all the circumstances, why would a landlord still want to take a security deposit? It is true that not every landlord gets burned. But if the decision to take a security deposit carries with it a substantial risk of suffering an expensive and unjust outcome, then wouldn’t the landlord simply be better off not taking one to begin with?

About the author: Robert Nislick is a Massachusetts real estate lawyer who handles residential and commercial landlord-tenant matters. For more information, call him at (508) 405-1238, or e-mail him at rob@nislick.com.

Commercial Tenants’ Rights and Remedies in Massachusetts

By Robert Nislick

You are a Massachusetts commercial tenant. Your company leases space and pays a handsome rent to your Massachusetts commercial landlord. Unfortunately, the landlord utterly fails to maintain the leased premises. The condition of the space is so poor that it affects your ability to operate your business. What can you do?

One question a commercial tenant might ask is whether there is a right to withhold rent. The answer is no. In sharp contrast with the law governing residential tenancies, Massachusetts law recognizes no right of a commercial tenant to withhold rent.

Suppose that a commercial tenant stops paying rent because the conditions of the leased premises are defective. The landlord terminates the tenancy and commences a summary process action. In addition to attempting to assert a rent withholding defense, the commercial tenant also files counterclaims based on the bad conditions.

In this situation, a court is highly likely to dismiss the tenant’s counterclaims. “[T]he summary process statute precludes counterclaims in commercial actions”. Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003). Moreover, a tenant’s argument that the landlord breached the lease “does not justify withholding rent”. See Fafard, 439 Mass. at 516.

What if the commercial tenant simply stops paying rent? Unless “the breach of contract has an extortionate quality”, “a failure to perform obligations under a written lease, even though deliberate and for reasons of self-interest, does not present an occasion for invocation of c. 93A remedies. Conventional damages achieve the goal of compensation, particularly because written leases often, as here, provide that the landlord may recover the legal expenses of pursuit, plus interest at the rate of twelve percent.” Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 226 (1992). This case generally stands for the idea, even if the tenant’s breach is intentional, the tenant will probably not be liable to the landlord under G. L. c. 93A, but still may have to pay the landlord’s attorney’s fees if the lease provides for it, in addition to the rent owed, and interest. Note that it is not recommended that any party, landlord or tenant, breach its contractual obligations.

If the landlord terminates the tenancy, will the tenant still have to pay rent? “It is well settled in the Commonwealth that when a landlord terminates a lease following the default of a tenant, the tenant is obligated to pay the rent due prior to the termination but has no obligation to pay any rent that accrues after the termination unless the lease otherwise provides.” 275 Washington Street Corp. v. Hudson River Int’l, LLC, 465 Mass. 16, 21 (2013).

The tenant will still most likely have financial obligations to the landlord even after the lease is terminated, such as “payments in an amount equal to the rent he had been paying”, or liquidated damages, rent acceleration, or indemnification. See 275 Washington Street Corp., 465 Mass. at 21-22.

Do any viable remedies exist for the commercial tenant? A commercial tenant may be able to terminate the lease based on the landlord’s failure to keep the building in proper repair.

In Wesson v. Leone Enters., Inc., 437 Mass. 708 (2002), the Court adopted the rule of mutually dependent covenants as contained in the Restatement (Second) of Property (Landlord and Tenant) § 7.1 (1977), such that:

“Except to the extent the parties to a lease validly agree otherwise, if the landlord fails to perform a valid promise contained in the lease to do, or to refrain from doing, something . . . and as a consequence thereof, the tenant is deprived of a significant inducement to the making of the lease, and if the landlord does not perform his promise within a reasonable period of time after being requested to do so, the tenant may (1) terminate the lease . . . .” Wesson, 437 Mass. at 720.

Another potential theory the tenant may pursue is based on constructive eviction. It is difficult, however, to prove constructive eviction in the commercial context. The tenant would need to prove that the defects made “the premises untenantable for the purposes for which they were used. See Wesson, 437 Mass. at 715.

A commercial landlord does have a statutory duty to correct unsafe conditions. “[T]he statutory duty of a landlord under G. L. c. 186, § 19, to exercise reasonable care to correct an unsafe condition described in a written notice from a tenant applies to commercial leases.” Bishop v. TES Realty Trust, 459 Mass. 9, 11 (2011).

G. L. c. 186, § 19, states in pertinent part:

“A landlord or lessor of any real estate . . . shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant . . . exercise reasonable care to correct the unsafe condition described in said notice . . . . The tenant . . . injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages.”

G. L. c. 186, § 19.

Nevertheless, in Humphrey v. Byron, 447 Mass. 322 (2006), the Court rejected a request to impose a duty on commercial landlords “to exercise reasonable care to assure that others legitimately on the leased premises were not subject to an unreasonable risk of harm.” Humphrey v. Byron, 447 Mass. 322, 323 (2006).

About the author: Robert Nislick is a Massachusetts real estate lawyer. He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

Late Fees in Massachusetts Residential Leases

You are a Massachusetts landlord. You are leasing an apartment to a tenant. In the event that the tenant pays rent late, you want to be able to collect a late fee from him or her.

Can the landlord impose a late fee against a tenant who pays rent late?

“No lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” G. L. c. 186, § 15B (1) (c).

Under this statute, the landlord can include a lease provision that requires the tenant to pay a late fee, but only if the late fee is imposed after the rent has been late for thirty days.

If the lease contains a provision that imposes a late fee when the rent is less than thirty days late, the landlord will not be able to collect it. Such a provision would most likely be deemed to be against public policy and void and unenforceable.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Evictions For Cause and the 7-Day Notice to Quit

By Robert Nislick

You are a Massachusetts landlord and you have a tenant who has violated the lease in some material fashion. It is possible that your tenant has done some or any of the following:

  • made so much noise that it interferes with the quiet enjoyment of other tenants.
  • allowed unauthorized occupants to live in the unit.
  • acted to destroy, deface, damage, impair or remove any part of the premises.
  • obtained the apartment through fraud by providing the landlord with false information on the rental application.
  • kept dogs or other pets without the landlord’s permission.
  • failed to control dogs or other animals on the property.
  • subletted the premises in violation of the lease.
  • chronically paid rent late.

Hopefully, as a landlord, you will not encounter any of these nightmarish scenarios. They do happen, however.

It should be noted that the examples provided above do not include situations where the tenant may be doing things that are even worse, such as using the premises for purposes of prostitution, illegal gaming, illegal sale of alcoholic beverages, illegal keeping, sale, or manufacture of controlled substances, i.e. drugs, or the illegal keeping of a weapon. If the tenant is doing any of these really bad things, then a separate statute, G. L. c. 139, § 19, allows the landlord to void the lease, and seek declaratory and injunctive relief, including the issuance of an execution for possession to be levied upon forthwith.

You decide to evict the tenant for cause. A landlord may terminate a tenancy for cause when the tenant has violated the terms and conditions of the lease or occupancy agreement between the parties. The burden is on the plaintiff to show the alleged lease violations by a preponderance of the evidence. See Hodess v. Bonefont, 401 Mass. 693, 695 (1988).

What kind of notice to quit must the landlord provide to the tenant? If the parties have signed the Greater Boston Real Estate Board Standard Form Apartment Lease, then paragraph 24, “Non-Performance or Breach by Lessee”, allows the landlord to terminate the tenancy by serving a 7-Day Notice to Quit. Seven days notice is sufficient to terminate a tenancy if the lease so provides.

If there is no lease provision that provides for termination for cause on seven-days notice, or if the tenant is a tenant at will, then the landlord will most likely have to provide a thirty-day notice to quit. But if the tenant has also failed to pay rent, then the landlord may decide simply to bring the summary process case after serving a Fourteen Day Notice to Quit for Nonpayment of Rent. There may be reasons why simply bringing the case as a nonpayment case could present problems. Then again, there may be reasons why the landlord should forego terminating the tenancy for cause, and simply evict the tenant for nonpayment of rent. The landlord should seek counsel rather than doing it himself or herself.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Smoking and Evictions in Massachusetts

By Robert Nislick

Despite the fact that the adult cigarette smoking rate has hit an all-time low, Massachusetts landlords, apartment dwellers, condominium unit owners, and property managers occasionally have to deal with issues related to smoking neighbors.

Landlords often want to know how they can prohibit a new tenant from smoking in the apartment they are renting. The landlord can have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will forbid the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit.

But let’s say the landlord has not expressly prohibited the tenant from smoking. What happens if other residents are becoming sick or are significantly affected by the smoker next door? The lack of a specific lease provision prohibiting smoking should not limit the landlord’s ability to evict a tenant whose smoking is significantly affecting the quiet enjoyment of other tenants.

A landlord may seek possession of premises occupied by a tenant alleging that the tenant’s excessive smoking within his unit is adversely affecting the quiet enjoyment of other residents of the building. See Fairfield Bay Towers d/b/a/ Carson Towers v. Shinney, Boston Housing Court No. 13H84SP003583 (Pierce, C.J.) (Jul. 16, 2014).

Secondhand smoke may become so problematic for non-smoking tenants that a failure by the landlord to abate the problem may constitute a breach of the covenant of quiet enjoyment and a breach of the implied warranty of habitability. See 50-58 Gainsborough Street Realty Trust v. Reece, Boston Housing Court No. 98-02279 (Daher, C.J.) (Jun. 8, 1998). An affected tenant may be able to successfully withhold rent from a landlord who has not fixed the secondhand smoke problem. A landlord may potentially be liable to pay multiple damages, attorney’s fees and costs to the aggrieved tenant.

If non-smoking tenants start to complain about a smoking neighbor, it may advisable for the landlord to terminate the smoker’s tenancy, particularly where the non-smokers allege that the smoke is creating a nuisance and interfering with their quiet enjoyment. See Harwood Capital Corp. v. Carey, Boston Housing Court No. 05-SP-00187 (Nasif, J.) (Mar. 8, 2005). Additionally, the landlord may be able to obtain a preliminary injunction prohibiting the smoker from smoking anywhere in the building including within his or her unit.

Even if the lease is silent concerning smoking, if the court issues an injunction, or if the parties enter into an agreement for judgment, these are courts orders which will take priority over all lease provisions, or lack of lease provisions regarding smoking. See The Community Builders, Inc. v. Megna, Boston Housing Court No. 11H84SP002184 (Muirhead, J.) (Oct. 31, 2012).

What if the tenant allows her guests to smoke? In one case, the Housing Court granted possession to the landlord where the tenant failed to stop her family members from smoking, in violation of a no-smoking policy, even though she herself did not smoke. See Berkshire Apartments v. Macwhinnie, Western Housing Court No. 13-SP-4391 (Fields, J.) (Jul. 7, 2014).

Does the smoker have any ability to prevent his eviction? It may be possible for the tenant and landlord to negotiate an agreement whereby the tenant may stay so long as he refrains from smoking in the apartment and in common areas. The Court may also stay the issuance of the execution provided that the tenant refrains from smoking. See Lillien Realty LLC v. Tallini, Worcester Housing Court No. 13-SP-4629 (Horan, J.) (Dec. 17, 2013).


Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Unauthorized Occupants and Illegal Subletting in Massachusetts

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.