Break lease, abandon, unpaid rent & damages, security deposit

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Break lease, abandon, unpaid rent & damages, security deposit

Zack Monroe
Member since 2020 · 4 posts · 1 vote

So, here is my situation, in Boston, Mass:

1. Tenant has a lease though 05/31/21. On 10/30/20 they asked to break it early and leave. I started showing the unit which remains unrented for December.

2. Late November, tenant moves out completely, leaves keys , states he has vacated.

3. Tenant acknowledged major damage to the floor.

4. I have $1650 security (from initial lease long ago), rent is $1750, damages may be over $2000.

5. My plan is to use the security to pay for December rent (partially), then demand payment for the rest of December rent ($100) and the damages. This assumes it will be rented for January. If not, then I will demand payment for that.

My question is what procedure should I follow to put this in motion? Should I simply send a letter stating that the apartment has been abandoned, tenant is still responsible for unpaid rent, unless payment is received it will go to court/collections?

I need specifics as to how to proceed.

Thanks for any help.

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Lien VuongBusiness Member
Real Estate Agent · Boston, MA · Member since 2018 · 2k+ posts · 1k+ votes
5y
  1. Itemize all damages and get confirmed receipt of cost to repair 
  2. Use funds from SD to cover that 
  3. Use LM for the LM's rent 
  4. Consult attorney on abandonment of unit 
  5. Once you go through court, itemize all your damages, loss rents, vacancy costs
  6. Send all fees to collections agency and proceed with formal eviction notice so it sticks to their record
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  • Lien VuongBusiness Member
    Real Estate Agent · Boston, MA · Member since 2018 · 2k+ posts · 1k+ votes
    5y
    1. Itemize all damages and get confirmed receipt of cost to repair 
    2. Use funds from SD to cover that 
    3. Use LM for the LM's rent 
    4. Consult attorney on abandonment of unit 
    5. Once you go through court, itemize all your damages, loss rents, vacancy costs
    6. Send all fees to collections agency and proceed with formal eviction notice so it sticks to their record
    [email protected]
    The Elle Group5153 Reviews
    WebsiteView Page
    4Reply
  • Brian LucierPro Member
    Property Manager · Fitchburg, MA · Member since 2012 · 148 posts · 201 votes
    5y

    @Lien Vuong spot on per usual Lien

    I do not think any judge in Massachusetts is going to honor the rest of the term of the lease if it was mutual for them to move out. Especially under the current environment. You did start to show the unit so the assumption was you complied with the request. You will be hard pressed to collect December if they do not live there. However, as Lien suggested, if you have a LMR, then apply that to the December rent under the terms.

    As for damages, you mentioned "(from initial lease long ago)". The burden is to have the documentation in the move in condition statement to prove what the floor looked like before they moved in. If it has been more than ten years, they may have an argument for normal wear and tear. If the kids have been painting murals on the carpet, that's another story. Either way, it is not really clear what the damages are from your initial post so I will reserve further comment there.

    I think the only speed bump in the plan is the interest for the security deposit and/or LMR. No sure if there was a LMR. MGL 186 ss15B is clear that the interest belongs to the resident and should not be used to offset damages. Either from the interest bearing account, or at 5% for the duration of the term you held it. You can roll the dice on this one too. Chances are the resident does not know this, but if they call a lawyer, then the lawyer can advise them to counterclaim for triple damages (on the interest only if you are luck). If the lawyer is a shark, then they may dig deeper for triple the entire amount for both.

    So how do you get through all this?

    1. You have 30 days from getting the keys back to deliver a statement of condition for the return of security deposit.
    2. You are supposed to return the interest for the LMR and SEC DEP, or may be liable for triple damages
    3. Contact the resident to let them know they have a refund (don't tell them it is the interest) and get a forwarding address
    4. You may also have ICE contact info and references from their rental application to track them down
    5. Follow Lien's post 1 thru 6

    I am part of a landlord association and have a pulse on how other landlords are doing in their court cases now that the MA moratorium has been lifted. It is like watching a completely different movie from what we have been used to for the past 20 years. I would seriously consider the chances that even if you do pursue this, it could take months to be heard. Everything is on zoom. The is the pre-trial hearing is first, then the trial. If not resolved in those time slots, you start over. And at any point if the submit the CDC hardship form - game over - case dismissed.

    I think you need to take stock on what the damages are actually worth to you. You may or may not be able to collect even if you do win a judgement. Not trying to be a debbie-downer, I would just prepare for the worst and be happy if it doesn't go that far. At least you got the vacant apartment without going to court. Today, that in and of itself - is a WIN!!

    1Reply
  • Zack Monroe
    OP
    Member since 2020 · 4 posts · 1 vote
    5y

    Thanks for the replies.

    1. There is no LM, just SD, as noted. Yes, yes, interest can be determined and given back, that's not a problem.

    2. Tenant has already admitted liability on the damage. I have proof of the undamaged condition and it is NOT wear and tear. The cost is to be determined after professional opinion. The damage is to the hardwood floor: tenant spilled some caustic liquid and has severe burn marks and depressions. A simple sanding will not cure it. As the floor is from heart pine, it is difficult finding the right match for a repair. I can get professionals to advise and offer quotes, that's not a problem.

    3. I did NOT agree to the breaking of the lease. I did what is required of me: I agreed to start showing the unit to mitigate my damages of a vacant unit. Tenant was explicitly advised that they are still responsible for any unpaid rent until the unit is rented. That is established law is it not?

    4. Do I need to go through eviction? Tenant has already abandoned unit, taken all belongings, returned keys, is effectively done with it.

    5. Again, my preferred course is to use SD for Dec rent. That alleviates any issues with the SD and damages. Do I also keep the interest from the SD for unpaid rent?

    6. I do not mind suing for damages in small claims later. Tenant is responsible and financially capable, I doubt it will go that far. If so, I have a good case as the damages in the suit have already been accepted by tenant. I will also sue for any remaining unpaid rent.

    My question still is how to best advise tenant of this course and when.

    1Reply
  • Kyle J.
    Rental Property Investor · Northern, CA · Member since 2012 · 5k+ posts · 5k+ votes
    5y

    I don’t know why you’re being advised to go through an eviction based on the circumstances you presented.

    You wouldn’t file an eviction against a tenant who has stated they’re moving out, and then voluntarily moved out and returned the keys as agreed.

    An eviction (unlawful detainer action) is only done to recover possession of a property that someone is refusing to voluntarily return to you.

    If you still need to recover money from them after they’re out, then you typically go through small claims. But an eviction is no longer appropriate. 

    This tenant is obviously going to end up owing you money (meaning there won’t be any refund going back to the tenant). It also sounds like they’re a tenant that you believe will voluntarily pay what they owe and/or that you can collect from through small claims if they don’t pay voluntarily.  

    So first and foremost make sure you send an itemized accounting of their security deposit within any timeframe that your state requires.

    Also send them a demand for any money they still owe you. They’ll either pay you, or they won’t. If they don’t, it’ll be time to go to small claims court. 

    0Reply
  • Brian LucierPro Member
    Property Manager · Fitchburg, MA · Member since 2012 · 148 posts · 201 votes
    5y

    @Zack Monroe all points made well, thank you.

    1. On the statement condition for the SEC DEP list all damages, unpaid rents, accompanied by receipts.
    2. Do this within the 30 days as required by law.
    3. If they owe you a balance, then state that clearly on the statement with instruction to pay you within 30 days.
    4. Make sure you put the Phrase "Signed Under Pains and Penalties of Perjury". <-- SUPER IMPORTANT in Massachusetts!!!
    5. 30 Days after they get the statement, if they have not paid, file your small claims.

    1Reply
  • Zack Monroe
    OP
    Member since 2020 · 4 posts · 1 vote
    5y

    As the security deposit plus interest will all be applied to unpaid rent, is it required to send details of the other damages as well? I mean, they do not relate to the security deposit once it is exhausted for unpaid rent. I'd rather treat damages separately for small claims and inform tenant later.

    0Reply
  • Zack Monroe
    OP
    Member since 2020 · 4 posts · 1 vote
    5y

    In this document on the rights of tenants in Massachusetts:

    https://www.masslegalhelp.org/...

    ...on p.48, it states:

    "If you have a written lease, your tenancy ends when your lease ends. If you move before the lease ends, the landlord does not have to return the security deposit until 30 days after the last day of the lease."

    So, as I suspected, the tenancy does not end upon an abandonment. It will end when the unit is rented to a new tenant.

    This suggests I can simply use the security for unpaid December rent.

    0Reply
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