Can I accept utilities payment

Question

Dear Fellow Landlords,

I have a lodger in my house, who received a notice to quit before Massachusetts announced state of emergency. He knows I cannot proceed with eviction and behaves as if it is his house. I did ask him for half of utilities. If I accept the money for utilities, do I lose my rights to proceed with eviction after the state of emergency is lifted? I cannot find any information on this.

The notice to quit I served him did not state it is because of non payment. He did pay his rent. It was no cause notice. I did not accept rent for May, but I need money for utilities he is running up all the time.

It is the house I live in. He does not have a written lease. I knew him for a short time before I let him move in, and I made a big mistake.

If anyone has an answer to my question, please help me with this issue. I am also not sure if I can accept rent since I have no right to evict him now during the state of emergency.

Thank you all for reading my post.

Mariusz

Douglas Snook · Answer

The notice you gave him to quit should have mentioned that any payments made afterwards were for use and occupancy only and did not create a new tenancy. Did your notice say anything to that effect?

You may be stuck with him for now so why not take "use and occupancy" (rent) for now? If you do not have something in writing about utilities you are most likely stuck paying in full so mind as well take the "use and occupancy"

Also call the housing court ASAP and ask them if you can file the eviction as he is a hold over tenant. They may accept it but have not date set to hear these matters.

If he has stayed beyond when you told him to leave he is a hold over tenant and you should be able to accept "use and occupancy" money every month. If he does not pay that then he it can become an eviction for non-payment

Brian Lucier · Answer

@Mariusz Bojarczuk

Really simple on this one.

If he lives in your house (which he does), and has possession of the premises (which he does), and if you have ever collected rent from him (which you have), then he is your resident and that is exactly how the courts will define this relationship. This means that any of your actions moving forward to evict this tenant must be in accord with the statutes under Massachusetts General Law, MGL. You need to know these laws. The courts have made this clear. Not knowing the law is no excuse for not following the law. Welcome to Massachusetts.

Your no-fault notice to quit better have happened before your both started speed-dialing 911 because the tenant is right. If you have filed to evict him AFTER there are documented calls to the police, then they do have a retaliation case against you. This means they can appeal to the courts and easily get up to 6-months free. It also means that you may not take any eviction actions towards them for the next six months. No increases, no "hey can you pay some of the utilities", nothing. If you push this issue, they could further file a TRO (Temporary Restraining Order) and actually ban you from interfering with the implied warranty of habitability and their peaceful quiet enjoyment of the premises. Watch the movie "Pacific Heights" with Michael Keaton. Yup, this could be you.

Now for the bad news. You do not have a written agreement.

DO NOT CHARGE him for utilities!!! Under Massachusetts State Sanitary Code charging someone utilities WITHOUT a WRITTEN rental agreement is illegal. If he has not been paying your utilities while he has been your tenant, he does not have to agree to do it now. Especially, if there is no written agreement, you cannot even charge for utilities. I have seen several cases where the landlord actually had to pay the tenant for a prorated portion of the utilities from the date they moved in. For a light read on where this all went wrong check out our BLOG post The “Landlord” Lone Ranger.

Some other useful BLOG reads are Landlord Tips: 8 State Sanitary Codes Landlords Need To Know For Managing Rental Properties and for a list of the Massachusetts Legal Landmines, please read Is Your Residential Property Manager Well Trained?

Mind you, I am not plugging our property management company for your business here. We write these articles to HELP landlords just like you to navigate the rental business through choppy water without getting blown out of your boat. I know, none of this, was good news. But better to hear it now before stepping square onto a legal landmine.

What to do?

First, just relax. Getting worked up, worrying about things you cannot change, and saying something bad is only going to fan some flame to spread and make things worse. If possible, try to politely communicate to defuse the current situation showing dignity and respect (if you both are calling the cops, it may be too late). No "self-help evictions" here. There was a reason you rented to this person in the first place, try to stay in that "happy place" until this all blows over.

And finally...

NEVER, NEVER, EVER, NEVER rent to someone again WITHOUT a written rental agreement that clearly defines the roles and responsibilities of each party in the rental transaction. EVER, NEVER, NOT NEVER!!!!

Here are a few Massachusetts Attorneys I highly recommend when the courts finally do re-open. I have worked with both of them and they do great work.Mark Burrell, Esq. (Tenant/Landlord Specialist)Inessa Shur, Esq. (Tenant/Landlord Specialist)(cannot post contact info in a reply on the forums, sorry)

@Lien Vuong@Douglas Snook

I absolutely agree with Doug and Lien. Any payments you accept moving forward must be documented and written on the front and back of the check as "for use and occupancy only". Sounds like a tough spot right now, but you will get through this. Inessa can help you with a written lease. She's great. Mark is great in court too.

Best of luck in getting through this.

Lien Vuong · Answer

If you accept his payment of any kind he's still considered a tenant. I would not accept it and see if there's a case for you to call local police to file a trespassing notice on him inside your property. File for forbearance or deferment of your mortgage and unemployment benefits ASAP.

Colleen F. · Answer

I think you have your answer to the utility payment but just a few caveats on what you say is going on.  Please make clear when you go to a lawyer you are an owner occupant and you are renting a room. It makes a difference although not as big a one as you would think. Also if you don't have an agreement keep in mind it is still your house and while you can't deprive him of services you can live in your own home and decide what house rules are. If you decide it is a smoking house, it is a smoking house. If there a no overnight guests , there are no overnight guests. I would not try to antagonize him but don't take everything about apartments and apply it to a lodging situation.  File as soon as you can, it may take a while. Good luck

John Warren · Answer

@Mariusz Bojarczuk you need to speak to an attorney asap. In most states, an owner has a lot more rights than a landlord normally would. All of your questions though are so specific that you can't get answers in a forum like this.

Mariusz Bojarczuk · Answer

Dear Brian,

Thank you for your detailed and precise advice. I realize it is my fault for being too trusting and helping someone out. Yes, there was a reason for letting him stay in my home. I knew him and knew his difficult financial situation. Lesson learned.

I appreciate that you gave me the names of attorneys. As you said, I actually tried to bring things down to a calm state. I had spoken to the tenant and explained that I realize during this time, I acknowledge the fact he cannot move out and we both need to respect our privacy and lifestyles. I am hoping that eventually he will move. He is looking for places now. I do hope he will move.

My notice to quite was given after 2.5 months he was here. It was before things went downhill. I will definitely ask for the "for use and occupancy only" payment for half of utilities. I did not collect rent for May and am not going to ask for rent. He did pay half of utilities and rent for April, which was his "last month." If I can, I will just pay the utilities myself.

Thank you for the resources you provided! Although I have a few properties under management, I myself am not a material for a landlord.

Although your message was mainly "bad news," it brought some hope and taught me a lot.

Thank you.

Sincerely,

Mariusz

Max T. · Answer

@Mariusz Bojarczuk

Illegal advice here, but if I had someone in my personal living space that needed to be gone I wouldn’t be waiting for the courts.

Theresa Harris · Answer

if it is for utilities-and that is specified, I would think no.  Is there a tenancy board you can call or check their website?

Brian Lucier · Answer

@Mariusz Bojarczuk

I want to be super clear on this. No written agreement, you cannot ask for utilities at all. Keep it all about the rent. If you need to tell him you need the rent to pay the utilities, fine. But you do not have any agreement on the table to collect ANY money for utilities. Like Lien Vuong said, this will establish a residency – and this, you do not want to do. If they pay "some rent" absolutely write on the receipt "for use and occupancy only" then, you can use this to pay some utilities. You can only collect rent here. Hope this helps.

@Lien Vuong

Mariusz Bojarczuk · Answer

Thank you Max!

Mariusz

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