Massachusetts Landlords - A Monday Morning Landlord/Tenant Law Quiz For You

25 Replies

Do you see anything wrong here?

Hmmm

not allowed to charge a application fee in MA? Is that screen fee = application fee?

That's what I see @Colleen F. To my knowledge the only fee that can be charged to a tenant is the fee for a new lock. There is always a grey area with fees when there is a real estate agent involved but a landlord can not charge anything to a new tenant beyond first month's rent, last month's rent, security deposit, and fee for new locks.

The fee is what stood out for me as well. Question: Experian has a service where a prospective tenant provides a landlord online access to his/her credit report, by paying Experian directly. Is it legal to use such a service in MA? The landlord doesn't collect any money for it.

Before move in in MA a landlord can only charge:

1st Months rent, last months rent, security deposit of no more than 1 months rent and the aforementioned re-key fee (which I never have done and never seen anyone else do).

Any application fee, or disguised one, is not allowed.

Agents can charge a leasing fee and it is negotiable who pays it.

I don't know how legit it is for an agent to charge a fee to pay for screenings, my guess is it is illegal.

I THINK if you have the tenants do something like SmartMove you can get them to pay for the screening. They are not paying the landlord and they can give access to info to others as well.

No legal advice. :)

Shaun Reilly, Real Estate Agent in MA (#9517670)
1-800-774-0737
Originally posted by @Bill Gulley :
It would be my guess that a Realtor can charge a fee in connection with an agreement to represent a client as such fee would not be directly related to any property but as to providing services. :)

I'd agree Bill (Though not an attorney or a leasing agent) but you also see them doing when listing a rental. So in that case they are screening for a particular property/landlord. My guess is that it would be interpreted the same as the landlord charging it.

Shaun Reilly, Real Estate Agent in MA (#9517670)
1-800-774-0737

The problem I see is that somebody can charge whatever they want. If you refuse to pay the fee you walk away and look at another apartment. If a landlord asks for the fee and the tenant really wants the apartment they are likely to pay anyways. The tenant may someday use it against the landlord in court if there is an eviction or other legal matter. Similarly, you can not charge a pet deposit in MA. Some landlords will charge $25 extra per month for a tenant with a pet which is also illegal and not just a way around the law but some people would rather pay the extra $25/month and keep their dog regardless of the legality. It's only when things get to the point where there is a landlord/tenant dispute and the tenant can now show a judge where the landlord likes to skirt the law and create a pattern that paints the landlord in a negative light. All it takes is one case to set a precedent. I'm no lawyer either but I would think that a licensed real estate agent would be up on landlord/tenant law if they are working as a rental agent for a property owner.

Can you specifically mention that "while we can't accept a pet deposit, your security deposit will cover pet damage and any cleaning costs necessary to remove any pet odors"?

Originally posted by @Mark Derby :
Can you specifically mention that "while we can't accept a pet deposit, your security deposit will cover pet damage and any cleaning costs necessary to remove any pet odors"?

This seems like one of those things that should be so obvious that you should not have to tell a tenant. So good idea to tell them. :)

The definition of "normal wear and tear" gets pushed toward the tenants pretty vigorously from what I have heard and most people I know (myself included) only take out money form the deposit for real damage and not say to repaint unless they serious mess something up or to clean carpets again unless they do some ridiculous. In the case of a pet you could maybe have them sign an addendum saying that any damage by a pet is not considered normal wear and tear. So if you clean the carpets because the smell like dog piss or have to repaint because all the walls are scratched up on the first 2' you can have something saying they knew that was going to be a problem if they fight it.

Shaun Reilly, Real Estate Agent in MA (#9517670)
1-800-774-0737

@Bill Gulley "That's what's great about public forums, everyone can have an opinion and justify it anyway they like, even when they don't know. LOL :)"

I agree;-)

That's why we usually have a Tenant/Landlord Attorney's at our REIA meetings.

Some of the biggest commercial rental units in Boston charge between $50-100 for pet fees per month if they allow pets at all. I charge a pet fee of $50 in my rental and we worked with lawyers and an agent when we rented out our property for the first time (I don't plan on shelling out that much each time we turnover - but it was good to use professionals to learn they model).

@Chris Kelly the problem with monthly pet fees as I see it is I don't believe that they have been challenged in court. There is question as to their legality. If you collect a security deposit in MA it can not be for more than one month's rent. This is generally understood. If, on top of that, the landlord tacks on another $50/month for a pet and considers it a deposit meaning you will get it back when you move out then that is illegal. If the additional "fee" is simply more rent that you will not get back then it's a grey area. A landlord can charge whatever they want for an apartment. It's done this way all the time I'm sure but once somebody challenges this in housing court the judge will have to decide if the landlord is trying to circumvent the security deposit law. We shall see. I'm not an attorney but I have been advised not to charge additional money for pets. I also see big companies charging tenants an application fee or a fee for a credit check. Again, it's considered illegal if the landlord does it since the most they can collect is first, last, security, and a fee to change the locks but when they use an agent it's a grey area that will have to be tested in court and a precedent set. (I have looked around online and not found anything but maybe it's out there somewhere.)

@Rob Beland I think the way people are doing the pet fee is by charging the full security deposit and the pet fee is actually the rent increased either 50 or 100 dollars a month. A normal 3 bedroom renting for 1,000 a month would be 1100 a month with a pet addendum attached. As Chris mentioned I've noticed a lot of big apartment complexes doing it this way so as long as you do the security deposit by the books you should be good.

FWIW just because some of the big apartment complexes and property managers are charging these doesn't mean that it is legal.

For the pet thing there are a few different things you see. People will charge an extra deposit which is clearly illegal and if they get called on it they will get nailed. Charge a monthly fee that is treated like a deposit. Not as clear cut but I'd say if it is called a deposit, even if it is a fee, it will be illegal. Charge a one time or a monthly fee, and it is clear it is a non-refundable fee, that is more questionable. I don't have a citation but I feel I read that the one time fee has been deemed illegal, a monthly fee I'm less sure about but again if it is called a fee it could get knocked down.

That last alternative is to simply charge more rent. If I was doing that I would NOT do anything like a pet addendum (at least nothing in it that mentioned paying more, "rules" for pets is okay). I'd just verbally say "I don't want pets but if you want to pay $x per month in rent I'll do it". So JUST have a higher rent that is not specifically tied to the pet and if they get rid of it they aren't getting any discount at least until the lease is up.

I'd guess that is still probably kinda illegal but at least there is some burden for the tenant to show that they had to pay more for the pet.

Shaun Reilly, Real Estate Agent in MA (#9517670)
1-800-774-0737

@Chris Kelly Someone sent me a list of Excluded Breeds of Dogs by their Insurance Company. I believe it's nationwide not just Massachusetts or Boston. Do you exclude any?

So if one is not allowed to charge tenants for credit/background checks, do MA lessors just eat the cost of doing these checks? I don't think it's legal to ask a tenant to obtain a report at their cost, because if it is required, it is tantamount to charging them a fee.

Massachusetts landlords, what's the cheapest way to obtain a credit check/background history on prospective tenants, and I'm assuming you just have to lose the cost since it cannot be charged to the tenant? I'm guessing I will also find out at the same time if the person furnished false information because the credit check will not go through? 

Back to the charging of the application fee. My understanding is that the 'applicants' are not 'tenants' so you would not be charging a tenant this fee since they are technically applicants and not tenants. Just my 2 cents.

Join the Largest Real Estate Investing Community

Basic membership is free, forever.