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MASSACHUSETTS HOUSING COURT HANDBOOK CONSUMER PROTECTION CLINIC 1 Contents PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE I. TITLE TO REAL PROPERTY CHAPTER 186. ESTATES FOR YEARS AND AT WILL Chapter 186: Section 1. Long term interests; treatment as freeholder ........................................ 7 Chapter 186: Section 2. Assignment of dower ........................................................................... 7 Chapter 186: Section 3. Tenancy at sufferance; liability for rent ............................................... 7 Chapter 186: Section 4. Liability of tenant for rent for proportion of land in possession .......... 7 Chapter 186: Section 5. Action to recover rent; evidence .......................................................... 7 Chapter 186: Section 6. Survival of action ................................................................................. 8 Chapter 186: Section 7. Remedies of landlords .......................................................................... 8 Chapter 186: Section 8. Recovery of rent accruing before determination of lease .................... 8 Chapter 186: Section 9. Recovery of rent paid in advance ......................................................... 8 Chapter 186: Section 10. Rent as a necessary............................................................................. 8 Chapter 186: Section 11. Determination of lease for nonpayment of rent ................................. 8 Chapter 186: Section 11A. Termination of lease for nonpayment of rent .................................. 9 Chapter 186: Section 12. Notice to determine estate at will ....................................................... 9 Chapter 186: Section 13. Recovery of possession after termination of tenancy at will ........... 10 Chapter 186: Section 13A. Tenants deemed to be at will upon foreclosure of residential real property; status of tenancy agreements where rental payment subsidized under state or federal law. ............................................................................................................................................ 10 Chapter 186: Section 14. Wrongful acts of landlord; premises used for dwelling or residential purposes; utilities, services, quiet enjoyment; penalties; remedies; waiver.............................. 10 Chapter 186: Section 15. Non-liability of landlord; provisions in lease or rental agreement .. 11 Chapter 186: Section 15A. Waiver of notices; lease or rental agreement provisions; validity 11 Chapter 186: Section 15B. Entrance of premises prior to termination of lease; payments; receipts; interest; records; security deposits ............................................................................. 12 Chapter 186: Section 15C. Residential real estate, lease payments based on real estate tax increases .................................................................................................................................... 19 Chapter 186: Section 15D. Oral agreement to execute lease; delivery of lease copy; penalty; waiver........................................................................................................................................ 19 Chapter 186: Section 15E. Action against owner; injuries due to defects violating building code; defense; waiver ................................................................................................................ 19 Chapter 186: Section 15F. Residential leases or rental agreements restricting litigation or landlord liability; ouster of tenant; remedies ............................................................................ 20 Chapter 186: Section 16. Leases or rental agreements restricting occupancy of children ....... 20 2 Chapter 186: Section 17. Occupancy constituting tenancy at will; termination ....................... 20 Chapter 186: Section 18. Reprisal for reporting violations of law or for tenant’s union activity; damages and costs; notice of termination, presumption; waiver in leases or other rental agreements prohibited ............................................................................................................... 21 Chapter 186: Section 19. Notice to landlord of unsafe condition; tort actions for injuries resulting from uncorrected condition ........................................................................................ 21 Chapter 186: Section 20. Attorneys’ fees and expenses; residential lease provisions; implied covenant; waiver ....................................................................................................................... 22 Chapter 186: Section 21. Disclosure of insurance information by lessor; violations; waiver .. 22 Chapter 186: Section 22. Definitions; submeter installation; testing; water use charges; public housing development exemption .............................................................................................. 23 PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES TITLE III. REMEDIES RELATING TO REAL PROPERTY CHAPTER 239. SUMMARY PROCESS FOR POSSESSION OF LAND.................................................................................. 28 Chapter 239: Section 1. Persons entitled to summary process ................................................. 28 Chapter 239: Section 1A. Land or tenements used for residential purposes; action by lessor under this chapter to recover possession; conditions and restrictions ...................................... 29 Chapter 239: Section 2. Jurisdiction; venue; form of writ ........................................................ 29 Chapter 239: Section 2A. Reprisal for reporting violations of law or for tenant’s union activity; defense; presumption .................................................................................................. 30 Chapter 239: Section 3. Judgment and execution; costs; appeal .............................................. 30 Chapter 239: Section 4. Storage of property removed; liens and enforcement; penalties ........ 32 Chapter 239: Section 5. Appeal; bond; actions thereon; waiver; appeal of waiver or periodic payments; notice of decision ..................................................................................................... 34 Chapter 239: Section 6. Condition of bond in action for possession after foreclosure of mortgage; after purchase ........................................................................................................... 36 Chapter 239: Section 6A. Condition of bond after foreclosure of tax title ............................... 37 Chapter 239: Section 7. Judgments; effect ............................................................................... 37 Chapter 239: Section 8. Three years quiet possession; effect ................................................... 37 Chapter 239: Section 8A. Rent withholding; grounds; amount claimed; presumptions and burden of proof; procedures ...................................................................................................... 37 Chapter 239: Section 9. Stay of proceedings ............................................................................ 39 Chapter 239: Section 10. Stay of proceedings; hearings .......................................................... 40 Chapter 239: Section 11. Stay of proceedings; deposit of applicant ........................................ 40 Chapter 239: Section 12. Stay of proceedings; validity of waiver in lease .............................. 41 Chapter 239: Section 13. Stay of proceedings; costs ................................................................ 41 3 105 CMR 410.000: MINIMUM STANDARDS OF FITNESS FOR HUMAN HABITATION (STATE SANITARY CODE, CHAPTER II) .............................................................................. 42 410.001: Purpose....................................................................................................................... 43 410.002: Authority .................................................................................................................... 44 410.003: Citation....................................................................................................................... 44 410.010: Scope.......................................................................................................................... 44 410.020: Definitions ................................................................................................................. 44 410.100: Kitchen Facilities ....................................................................................................... 48 410.150: Washbasins, Toilets, Tubs, and Showers ................................................................... 49 410.151: Shared Facilities......................................................................................................... 50 410.152: Privies and Chemical Toilets Prohibited; Exceptions................................................ 50 410.180: Potable Water ............................................................................................................. 50 410.190: Hot Water ................................................................................................................... 51 410.200: Heating Facilities Required ....................................................................................... 51 410.201: Temperature Requirements ........................................................................................ 51 410.202: Venting....................................................................................................................... 52 410.250: Habitable Rooms Other than Kitchen -- Natural Light and Electrical Outlets .......... 52 410.251: Kitchen Lighting and Electrical Outlets .................................................................... 52 410.252: Bathroom Lighting and Electrical Outlets ................................................................. 52 410.253: Light Fixtures Other than in Habitable Rooms or Kitchens ...................................... 52 410.254: Light in Passageways, Hallways, and Stairways ....................................................... 53 410.255: Amperage ................................................................................................................... 53 410.256: Temporary Wiring ..................................................................................................... 53 410.257: Light Obstructions ..................................................................................................... 53 410.258: Exemption of Dwellings More than 600 Feet from Electrical Service...................... 54 410.280: Natural and Mechanical Ventilation .......................................................................... 54 410.281: Ventilation Shut-off ................................................................................................... 54 410.300: Sanitary Drainage System Required .......................................................................... 54 410.350: Plumbing Connections ............................................................................................... 55 410.351: Owner's Installation and Maintenance Responsibilities ............................................ 55 410.352: Occupant's Installation and Maintenance Responsibilities ........................................ 55 410.353: Asbestos Material ...................................................................................................... 56 410.354: Metering of Electricity, Gas and Water ..................................................................... 56 410.400: Minimum Square Footage ......................................................................................... 57 410.401: Ceiling Height ............................................................................................................ 57 4 410.402: Grade Level................................................................................................................ 57 410.430: Temporary Housing Allowed Only with Board of Health Permission ...................... 58 410.431: Any Exceptions to Minimum Standards Must Be Specified ..................................... 58 410.450: Means of Egress ......................................................................................................... 58 410.451: Egress Obstructions ................................................................................................... 58 410.452: Safe Condition ........................................................................................................... 58 410.480: Locks.......................................................................................................................... 58 410.481: Posting of Name of Owner ........................................................................................ 59 410.482: Smoke Detectors and Carbon Monoxide Alarms ...................................................... 59 410.483: Auxiliary Emergency Lighting Systems and Exit Signs ........................................... 60 410.484: Building Identification ............................................................................................... 60 410.500: Owner's Responsibility to Maintain Structural Elements .......................................... 60 410.501: Weathertight Elements ............................................................................................... 60 410.502: Use of Lead Paint Prohibited ..................................................................................... 62 410.503: Protective Railings and Walls .................................................................................... 62 410.504: Non-absorbent Surfaces ............................................................................................. 62 410.505: Occupant's Responsibility Respecting Structural Elements ...................................... 63 410.550: Extermination of Insects, Rodents and Skunks ......................................................... 63 410.551: Screens for Windows ................................................................................................. 64 410.552: Screens for Doors....................................................................................................... 64 410.553: Installation of Screens ................................................................................................ 64 410.600: Storage of Garbage and Rubbish ............................................................................... 64 410.601: Collection of Garbage and Rubbish ........................................................................... 65 410.602: Maintenance of Areas Free from Garbage and Rubbish............................................ 66 410.620: Curtailment Prohibited ............................................................................................... 66 410.700: Inspectors Duty to Classify Violations ...................................................................... 67 410.750: Conditions Deemed to Endanger or Impair Health or Safety .................................... 67 410.800: General Administration.............................................................................................. 69 410.810: Access for Repairs and Alterations ............................................................................ 69 410.820: Inspection Upon Request ........................................................................................... 69 410.821: Inspection Form ......................................................................................................... 70 410.822: Conduct of Inspections .............................................................................................. 71 410.830: Correction Orders ...................................................................................................... 72 410.831: Dwellings Unfit for Human Habitation; Hearing; Condemnation; Order to Vacate; Demolition ................................................................................................................................ 74 5 410.832: Content of Orders....................................................................................................... 75 410.833: Service of Orders ....................................................................................................... 76 410.840: Variances ................................................................................................................... 77 410.850: Right to Hearing......................................................................................................... 77 410.851: Hearing Notice ........................................................................................................... 78 410.852: Time for Hearing ....................................................................................................... 78 410.853: Hearing Procedures .................................................................................................... 79 410.854: Final Decision After Hearing; Failure to Comply with Final Order.......................... 79 410.855: Official Hearing Record............................................................................................. 79 410.860: Appeal of Final Decisions.......................................................................................... 79 410.900: Penalties for Interference with Inspections ................................................................ 80 410.910: Penalty for Failure to Comply with Order ................................................................. 80 410.920: Penalty for Other Offenses ........................................................................................ 80 410.950: Condemnation, Placarding and Vacating Dwellings ................................................. 80 410.960: Correction of Violations by Board of Health; Expenses ........................................... 81 410.990: Appendix: Forms ....................................................................................................... 82 940 CMR 3: CONSUMER PROTECTION GENERAL REGULATIONS ................................. 85 3.17: Landlord-Tenant .............................................................................................................. 85 SUMMARY PROCESS FORMS ................................................................................................. 91 Affidavit Under Summary Process Form ................................................................................. 91 Agreement for Judgment Form ................................................................................................. 92 Stipulation for Rent, Repairs, and Review Form ...................................................................... 94 Summary Process Answer Form............................................................................................... 96 SMALL CLAIMS FORMS .......................................................................................................... 99 Small Claims Answer Form ...................................................................................................... 99 Small Claims Counterclaim Form .......................................................................................... 100 SAMPLE FORMS - NOT FOR USE ......................................................................................... 101 Small Claims Complaint Form ............................................................................................... 101 Summary Process Summons and Complaint Form ................................................................ 102 6 PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE I. TITLE TO REAL PROPERTY CHAPTER 186. ESTATES FOR YEARS AND AT WILL Chapter 186: Section 1. Long term interests; treatment as freeholder Section 1. If land is demised for the term of one hundred years or more, the term shall, so long as fifty years thereof remain unexpired, be regarded as an estate in fee simple as to everything concerning the descent and devise thereof, upon the decease of the owner, the right of dower as defined in section one of chapter one hundred and eighty-nine therein, the sale thereof by executors, administrators, guardians, conservators or trustees, the levy of execution thereon, and the redemption thereof if mortgaged or taken on execution; and whoever holds as lessee or assignee under such a lease shall, so long as fifty years of the term remain unexpired, be regarded as a freeholder for all purposes. Chapter 186: Section 2. Assignment of dower Section 2. If dower as defined in section one of chapter one hundred and eighty-nine is assigned out of such land, the husband or widow and his or her assigns shall pay to the owner of the unexpired residue of the term one third of the rent reserved in the lease under which the wife or husband held the term. Chapter 186: Section 3. Tenancy at sufferance; liability for rent Section 3. Tenants at sufferance in possession of land or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same. Chapter 186: Section 4. Liability of tenant for rent for proportion of land in possession Section 4. A person in possession of land out of which rent is due shall be liable for the amount or proportion of rent due from the land in his possession although it is only a part of that originally demised. Chapter 186: Section 5. Action to recover rent; evidence Section 5. Such rent may be recovered in contract, and the deed of demise or other written instrument, if any, showing the provisions of the lease, may be used in evidence by either party to prove the amount of rent due from the defendant. 7 Chapter 186: Section 6. Survival of action Section 6. Such action may be brought by or against executors and administrators for any arrears of rent accrued in the lifetime of the deceased parties, respectively, in the same manner as for debts due from or to the same parties in their lifetime on a personal contract. Chapter 186: Section 7. Remedies of landlords Section 7. The six preceding sections shall not deprive landlords of any other legal remedy for the recovery of rents, whether secured by lease or by law. Chapter 186: Section 8. Recovery of rent accruing before determination of lease Section 8. If land is held by lease of a person having an estate therein determinable on a life or on a contingency, and such estate determines before the end of a period for which rent is payable, or if an estate created by a written lease or an estate at will is determined before the end of such period by surrender, either express or by operation of law, by notice to quit for nonpayment of rent, or by the death of any party, the landlord or his executor or administrator may recover in contract, a proportional part of such rent according to the portion of the last period for which such rent was accruing which had expired at such determination. Chapter 186: Section 9. Recovery of rent paid in advance Section 9. If, upon the determination of a tenancy, in any manner mentioned in the preceding section, before the end of a period for which rent is payable, the rent therefor has been paid before such determination, a proportionate part thereof, according to the portion of such period then unexpired, may be recovered back in contract. Chapter 186: Section 10. Rent as a necessary Section 10. Debts for the rent of a dwelling house occupied by the debtor or his family shall be considered as claims for necessaries. Chapter 186: Section 11. Determination of lease for nonpayment of rent Section 11. Upon the neglect or refusal to pay the rent due under a written lease, fourteen days’ notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease, unless the tenant, on or before the day the answer is due, in an action by the landlord to recover possession of the premises, pays or tenders to the landlord or to his attorney all rent then due, with interest and costs of suit. If the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the commonwealth or any municipality, or any departments, agencies or authorities thereof, in the mailing or delivery of any subsistence or 8 rental payment, check or voucher other than a salary payment to either the tenant or the landlord, the court in any such action shall continue the hearing not less than seven days in order to furnish notice of such action to the appropriate agency and shall, if all rent due with interest and costs of suit has been tendered to the landlord within such time, treat the tenancy as not having been terminated. Chapter 186: Section 11A. Termination of lease for nonpayment of rent Section 11A. Upon the neglect or refusal by the tenant to pay the rent due under a written lease of premises for other than dwelling purposes, the landlord shall be entitled to terminate the lease either (i) in accordance with the provisions of the lease or (ii) in the absence of such lease provisions, by at least fourteen days notice to quit, given in writing to the tenant. If a landlord terminates the lease by at least fourteen days notice pursuant to clause (ii) of the preceding sentence, the tenant shall be entitled to cure on or before the day the answer is due in any action by the landlord to recover possession of the premises, by paying or tendering to the landlord or to his attorney all rent then due, with interest and costs of such action. The rights to cure provided herein, shall apply only to termination pursuant to clause (ii) and shall not apply to termination in accordance with the provisions of the lease. Chapter 186: Section 12. Notice to determine estate at will Section 12. Estates at will may be determined by either party by three months’ notice in writing for that purpose given to the other party; and, if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer. Such written notice may include an offer to establish a new tenancy for the same premises on terms different from that of the tenancy being terminated and the validity of such written notice shall not be affected by the inclusion of such offer. In case of neglect or refusal to pay the rent due from a tenant at will, fourteen days’ notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the tenancy; provided, that the tenancy of a tenant who has not received a similar notice from the landlord within the twelve months next preceding the receipt of such notice shall not be determined if the tenant, within ten days after the receipt thereof, pays or tenders to the landlord, the landlord’s attorney, or the person to whom the tenant customarily pays rent, the full amount of any rent due. Every notice to determine an estate at will for nonpayment of rent shall contain the following notification to the tenant: “If you have not received a notice to quit for nonpayment of rent within the last twelve months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord’s attorney or the person to whom you customarily pay your rent the full amount of rent due within ten days after your receipt of this notice.” If any notice to determine an estate at will for nonpayment of rent shall fail to contain such notification, the time within which the tenant receiving the notice would be entitled to pay or tender rent pursuant to this section shall be extended to the day the answer is due in any action by the landlord to recover possession of the premises. Failure to include such notice shall not otherwise affect the validity of the said notice. If the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the commonwealth or any municipality, or any departments, agencies or authorities thereof, in the mailing or delivery of any subsistence 9 or rental payment, check or voucher other than a salary payment to either the tenant or the landlord, the court in any action for possession shall continue the hearing not less than seven days in order to furnish notice of such action to the appropriate agency and shall, if all rent due with interest and costs of suit has been tendered to the landlord within such time, treat the tenancy as not having been terminated. Chapter 186: Section 13. Recovery of possession after termination of tenancy at will Section 13. Whenever a tenancy at will of premises occupied for dwelling purposes, other than a room or rooms in a hotel, is terminated, without fault of the tenant, either by operation of law or by act of the landlord, except as provided in section twelve, no action to recover possession of the premises shall be brought, nor shall the tenant be dispossessed, until after the expiration of a period, equal to the interval between the days on which the rent reserved is payable or thirty days, whichever is longer, from the time when the tenant receives notice in writing of such termination; but such tenant shall be liable to pay rent for such time during the said period as he occupies or retains the premises, at the same rate as theretofore payable by him while a tenant at will; provided, that in the case of a rooming house, an action to recover possession of premises occupied for dwelling purposes may be brought seven days after written notice if the rent is payable on either a weekly or daily basis. A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof or by foreclosure. Chapter 186: Section 13A. Tenants deemed to be at will upon foreclosure of residential real property; status of tenancy agreements where rental payment subsidized under state or federal law. Section 13A Upon a foreclosure of residential real property pursuant to chapter 244, a tenant, occupying a dwelling unit under an unexpired term for years, or a lease for a definite term in effect at the time of a foreclosure by sale, shall be deemed a tenant at will. Foreclosure shall not affect the tenancy agreement of a tenant whose rental payment is subsidized under state or federal law. Chapter 186: Section 14. Wrongful acts of landlord; premises used for dwelling or residential purposes; utilities, services, quiet enjoyment; penalties; remedies; waiver Section 14. Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than a room or rooms in a hotel, but including a manufactured home or land therefor, who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or 10 services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing. The superior and district courts shall have jurisdiction in equity to restrain violations of this section. The provisions of section eighteen of chapter one hundred and eighty-six and section two A of chapter two hundred and thirty-nine shall apply to any act taken as a reprisal against any person for reporting or proceeding against violations of this section. Any waiver of this provision in any lease or other rental agreement, except with respect to any restriction on the provision of a service specified in this section imposed by the United States or any agency thereof or the commonwealth or any agency or political subdivision thereof and not resulting from the acts or omissions of the landlord or lessor, and except for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable. Chapter 186: Section 15. Non-liability of landlord; provisions in lease or rental agreement Section 15. Any provision of a lease or other rental agreement relating to real property whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to indemnify the lessor or landlord or hold the lessor or landlord harmless, or preclude or exonerate the lessor or landlord from any or all liability to the lessee or tenant, or to any other person, for any injury, loss, damage or liability arising from any omission, fault, negligence or other misconduct of the lessor or landlord on or about the leased or rented premises or on or about any elevators, stairways, hallways or other appurtenance used in connection therewith, shall be deemed to be against public policy and void. Chapter 186: Section 15A. Waiver of notices; lease or rental agreement provisions; validity Section 15A. Any provision of a lease or other rental agreement relating to residential real property whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to waive the notices required under section eleven or twelve, shall be deemed to be against public policy and void. 11 Chapter 186: Section 15B. Entrance of premises prior to termination of lease; payments; receipts; interest; records; security deposits Section 15B. (1) (a) No lease relating to residential real property shall contain a provision that a lessor may, except to inspect the premises, to make repairs thereto or to show the same to a prospective tenant, purchaser, mortgagee or its agents, enter the premises before the termination date of such lease. A lessor may, however, enter such premises: (i) in accordance with a court order; (ii) if the premises appear to have been abandoned by the lessee; or (iii) to inspect, within the last thirty days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, the premises for the purpose of determining the amount of damage, if any, to the premises which would be cause for deduction from any security deposit held by the lessor pursuant to this section. (b) At or prior to the commencement of any tenancy, no lessor may require a tenant or prospective tenant to pay any amount in excess of the following: (i) rent for the first full month of occupancy; and, (ii) rent for the last full month of occupancy calculated at the same rate as the first month; and, (iii) a security deposit equal to the first month’s rent provided that such security deposit is deposited as required by subsection (3) and that the tenant is given the statement of condition as required by subsection (2); and, (iv) the purchase and installation cost for a key and lock. (c) 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. (d) No lessor or successor in interest shall at any time subsequent to the commencement of a tenancy demand rent in advance in excess of the current month’s rent or a security deposit in excess of the amount allowed by this section. The payment in advance for occupancy pursuant to this section shall be binding upon all successors in interest. (e) A security deposit shall continue to be the property of the tenant making such deposit, shall not be commingled with the assets of the lessor, and shall not be subject to the claims of any creditor of the lessor or of the lessor’s successor in interest, 12 including a foreclosing mortgagee or trustee in bankruptcy; provided, however, that the tenant shall be entitled to only such interest as is provided for in subsection (3)(b). (2)(a) Any lessor or his agent who receives, at or prior to the commencement of a tenancy, rent in advance for the last month of the tenancy from a tenant or prospective tenant shall give to such tenant or prospective tenant at the time of such advance payment a receipt indicating the amount of such rent, the date on which it was received, its intended application as rent for the last month of the tenancy, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom the rent is received, and a description of the rented or leased premises, and a statement indicating that the tenant is entitled to interest on said rent payment at the rate of five per cent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held payable in accordance with the provisions of this clause, and a statement indicating that the tenant should provide the lessor with a forwarding address at the termination of the tenancy indicating where such interest may be given or sent. Any lessor or his agent who receives said rent in advance for the last month of tenancy shall, beginning with the first day of tenancy, pay interest at the rate of five per cent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held. Such interest shall be paid over to the tenant each year as provided in this clause; provided, however, that in the event that the tenancy is terminated before the anniversary date of such tenancy, the tenant shall receive all accrued interest within thirty days of such termination. Interest shall not accrue for the last month for which rent was paid in advance. At the end of each year of tenancy, such lessor shall give or send to the tenant from whom rent in advance was collected a statement which shall indicate the amount payable by such lessor to the tenant. The lessor shall at the same time give or send to such tenant the interest which is due or shall notify the tenant that he may deduct the interest from the next rental payment of such tenant. If, after thirty days from the end of each year of the tenancy, the tenant has not received said interest due or said notice to deduct the interest from the next rental payment, the tenant may deduct from his next rent payment the interest due. If the lessor fails to pay any interest to which the tenant is then entitled within thirty days after the termination of the tenancy, the tenant upon proof of the same in an action against the lessor shall be awarded damages in an amount equal to three times the amount of interest to which the tenant is entitled, together with court costs and reasonable attorneys fees. (b) Any lessor or his agent who receives a security deposit from a tenant or prospective tenant shall give said tenant or prospective tenant at the time of receiving such security deposit a receipt indicating the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a 13 description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit. (c) Any lessor of residential real property, or his agent, who accepts a security deposit from a tenant or prospective tenant shall, upon receipt of such security deposit, or within ten days after commencement of the tenancy, whichever is later, furnish to such tenant or prospective tenant a separate written statement of the present condition of the premises to be leased or rented. Such written statement shall also contain a comprehensive listing of any damage then existing in the premises, including, but not limited to, any violations of the state sanitary or state building codes certified by a local board of health or building official or adjudicated by a court and then existing in the premises. Such statement shall be signed by the lessor or his agent and contain the following notice in twelve-point bold-face type at the top of the first page thereof: “This is a statement of the condition of the premises you have leased or rented. You should read it carefully in order to see if it is correct. If it is correct you must sign it. This will show that you agree that the list is correct and complete. If it is not correct, you must attach a separate signed list of any damage which you believe exists in the premises. This statement must be returned to the lessor or his agent within fifteen days after you receive this list or within fifteen days after you move in, whichever is later. If you do not return this list, within the specified time period, a court may later view your failure to return the list as your agreement that the list is complete and correct in any suit which you may bring to recover the security deposit.” If the tenant submits to the lessor or his agent a separate list of damages, the lessor or his agent shall, within fifteen days of receiving said separate list, return a copy of said list to the tenant with either such lessor’s signed agreement with the content thereof or a clear statement of disagreement attached. (d) Every lessor who accepts a security deposit shall maintain a record of all such security deposits received which contains the following information:— (i) a detailed description of any damage done to each of the dwelling units or premises for which a security deposit has been accepted, returned to any tenant thereof or for which the lessor has brought suit against any tenant; (ii) the date upon which the occupancy of the tenant or tenants charged with such damage was terminated; and (iii) whether repairs were performed to remedy such damage, the dates of said repairs, the cost thereof, and receipts therefor. Said record shall also include copies of any receipt or statement of condition given to a tenant or prospective tenant as required by this section. Said record shall be available for inspection upon request of a tenant or prospective tenant during normal business hours in the office of the lessor or his agent. Upon a wrongful failure by the lessor or his agent to make such record available for 14 inspection by a tenant or prospective tenant, said tenant or prospective tenant shall be entitled to the immediate return of any amount paid in the form of a security deposit together with any interest which has accrued thereon. The lessor or his agent shall maintain said record for each dwelling unit or premises for which a security deposit was accepted for a period of two years from the date of termination of the tenancy or occupancy upon which the security deposit was conditioned. (3) (a) Any security deposit received by such lessor shall be held in a separate, interestbearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property. A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit. (b) A lessor of residential real property who holds a security deposit pursuant to this section for a period of one year or longer from the commencement of the term of the tenancy shall, beginning with the first day of the tenancy, pay interest at the rate of five per cent per year, or other such lesser amount of interest as has been received from the bank where the deposit has been held payable to the tenant at the end of each year of the tenancy. Such interest shall be paid over to the tenant each year as provided in this clause, provided, however, that in the event that the tenancy is terminated before the anniversary date of the tenancy, the tenant shall receive all accrued interest within thirty days of such termination. Such interest shall be beyond the claims of such lessor, except as provided for in this section. At the end of each year of a tenancy, such lessor shall give or send to the tenant from whom a security deposit has been received a statement which shall indicate the name and address of the bank in which the security deposit has been placed, the amount of the deposit, the account number, and the amount of interest payable by such lessor to the tenant. The lessor shall at the same time give or send to each such tenant the interest which is due or shall include with the statement required by this clause a notification that the tenant may deduct the interest from the tenant’s next rental payment. If, after thirty days from the end of each year of the tenancy, the tenant has not received such notice or payment, the tenant may deduct from his next rent payment the interest due. (4) The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following: (i) any unpaid rent or water charges which have not been validly withheld or deducted pursuant to any general or special law 15 (ii) any unpaid increase in real estate taxes which the tenant is obligated to pay pursuant to a tax escalation clause which conforms to the requirements of section fifteen C; and (iii) a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded. In the case of such damage, the lessor shall provide to the tenant within such thirty days an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof. No amount shall be deducted from the security deposit for any damage to the dwelling unit which was listed in the separate written statement of the present condition of the premises which was required to be given to the tenant prior to the execution of the lease or creation of the tenancy pursuant to clause (c) of subsection (2) or any damages listed in any separate list submitted by the tenant and signed by the lessor or his agent pursuant to said clause (c), unless the lessor subsequently repaired or caused to be repaired said damage and can prove that the renewed damage was unrelated to the prior damage and was caused by the tenant or by any person under the tenant’s control or on the premises with the tenant’s consent. Nothing in this section shall limit the right of a landlord to recover from a tenant, who wilfully or maliciously destroys or damages the real or personal property of said landlord, to the forfeiture of a security deposit, when the cost of repairing or replacing such property exceeds the amount of such security deposit. No deduction may be made from the security deposit for any purpose other than those set forth in this section. (5) Whenever a lessor who receives a security deposit transfers his interest in the dwelling unit for which the security deposit is held, whether by sale, assignment, death, appointment of a receiver or trustee in bankruptcy, or otherwise, the lessor shall transfer such security deposit together with any interest which has accrued thereon for the benefit of the tenant who made such security deposit to his successor in interest, and said successor in interest shall be liable for the retention and return of said security deposit in accordance with the provisions of this section from the date upon which said transfer is made; provided however, that the granting of a mortgage on such premises shall not be a transfer of interest. The successor in interest shall, within forty-five days from the date of said transfer, notify the tenant who made such security deposit that such security deposit was transferred to him and that he is holding said security deposit. Such notice shall also contain the lessor’s name, business address, and business telephone number, and the name, business address, and business telephone number of his agent, if any. Said notice shall be in writing. 16 Upon such transfer, the lessor or his agent shall continue to be liable with respect to the provisions of this section until: (a) there has been a transfer of the amount of the security deposit so held to the lessor’s successor in interest and the tenant has been notified in writing of the transfer and of the successor in interest’s name, business address, and business telephone number; (b) there has been compliance with this clause by the successor in interest; or (c) the security deposit has been returned to the tenant. In the event that the lessor fails to transfer said security deposit to his successor in interest as required by this subsection the successor in interest shall, without regard to the nature of the transfer, assume liability for payment of the security deposit to the tenant in accordance with the provisions of this section; provided, however, that if the tenant still occupies the dwelling unit for which the security deposit was given, said successor in interest may satisfy such obligation by granting the tenant free use and occupancy of the dwelling unit for a period of time equivalent to that period of time for which the dwelling unit could be leased or occupied if the security deposit were deemed to be rent. The liability imposed by this paragraph shall not apply to a city or town which acquires title to property pursuant to chapter sixty or to a foreclosing mortgagee or a mortgagee in possession which is a financial institution chartered by the commonwealth or the United States. The term “rent”, as used in the preceding sentence, shall mean the periodic sum paid by the tenant for the use and occupation of the dwelling unit in accordance with the terms of his lease or other rental agreement. (6) The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he: (a) fails to deposit such funds in an account as required by subsection (3); (b) fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any, in compliance with the provisions of this section; (c) uses in any lease signed by the tenant any provision which conflicts with any provision of this section and attempts to enforce such provision or attempts to obtain from the tenant or prospective tenant a waiver of any provision of this section; (d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; or, 17 (e) fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy. (7) If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection 6, 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. (7A) Whenever a lessor who receives rent in advance for the last month of tenancy transfers his interest in the dwelling unit for which the rental advance was received, whether by sale, assignment, death, appointment of a receiver or trustee in bankruptcy, or otherwise, the lessor shall credit an amount equal to such rental advance together with any interest which has accrued thereon for the benefit of the tenant who made such rental advance, to the successor in interest of such lessor, and said successor in interest shall be liable for crediting the tenant with such rental advance, and for paying all interest accrued thereon in accordance with the provisions of this section from the date upon which said transfer is made; provided, however, that the granting of a mortgage on such premises shall not be deemed a transfer of interest. The successor in interest shall, within forty-five days from the date of said transfer, notify the tenant who made such rental advance that such rental advance was so credited, and that such successor has assumed responsibility therefor pursuant to the foregoing provision. Such notice shall also contain the lessor’s name, business address, and business telephone number, and the name, business address, and business telephone number of his agent, if any. Said notice shall be in writing. Upon such transfer, the lessor or his agent shall continue to be liable with respect to the provisions of this section until:—(a) there has been a credit of the amount of the rental advance so held to the lessor’s successor in interest and the tenant has been notified in writing of the transfer and of the successor in interest’s name, business address, and business telephone number; (b) there has been compliance with this clause by the successor in interest; or (c) the rental advance has been credited to the tenant and all accrued interest has been paid thereon. In the event that the lessor fails to credit said rental advance to his successor in interest as required by this subsection, the successor in interest shall, without regard to the nature of the transfer, assume liability for crediting of the rental advance, and payment of all interest thereon to the tenant in accordance with the provisions of this section; provided, however, that if the tenant still occupies the dwelling unit for which the rental advance was given, said successor in interest may satisfy such obligation by granting the tenant free use and occupancy of the dwelling unit for a period of time equivalent to the period of time covered by the rental advance. The liability imposed by this subsection shall not apply to a city or town which acquires title to property pursuant to chapter sixty or to a foreclosing mortgagee or a mortgagee in possession which is a financial institution chartered by the commonwealth or by the United States. 18 (8) Any provision of a lease which conflicts with any provision of this section and any waiver by a tenant or prospective tenant of any provision of this section shall be deemed to be against public policy and therefore void and unenforceable. (9) The provisions of this section shall not apply to any lease, rental, occupancy or tenancy of one hundred days or less in duration which lease or rental is for a vacation or recreational purpose. Chapter 186: Section 15C. Residential real estate, lease payments based on real estate tax increases Section 15C. No lease relating to residential real estate shall contain a provision which obligates a lessee to make payments to the lessor on account of an increased real estate tax levied during the term of the lease, unless such provision expressly sets forth (1) that the lessee shall be obligated to pay only that proportion of such increased tax as the unit leased by him bears to the whole of the real estate so taxed, (2) the exact percentage of any such increase which the lessee shall pay, and (3) that if the lessor obtains an abatement of the real estate tax levied on the whole of the real estate of which the unit leased by the lessee is a part, a proportionate share of such abatement, less reasonable attorney’s fees, if any, shall be refunded to said lessee. Any provision of a lease in violation of the provisions of this section shall be deemed to be against public policy and void. If the exact percentage of any such increased tax contained in such a provision is found to exceed that proportion of such increased tax as the lessee’s unit bears to the whole of the real estate so taxed, then the lessor shall return to the lessee that amount of the tax payment collected from the lessee which exceeded the lessee’s proportionate share of the increased tax, plus interest calculated at the rate of five per cent per year from the date of collection. Chapter 186: Section 15D. Oral agreement to execute lease; delivery of lease copy; penalty; waiver Section 15D. A lessor who has agreed orally to execute a lease and obtains the signature of the lessee shall, within thirty days thereafter, deliver a copy of said lease to the lessee, duly signed and executed by said lessor. Whoever violates any provision of this section shall be punished by a fine of not more than three hundred dollars. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. Chapter 186: Section 15E. Action against owner; injuries due to defects violating building code; defense; waiver Section 15E. An owner of a building shall be precluded from raising as a defense in an action brought by a lessee, tenant or occupant of said building who has sustained an injury caused by a defect in a common area, that said defect existed at the time of the letting of the property, if said defect is at the time of the injury a violation of the building code of the city or town wherein the 19 property is situated. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. Chapter 186: Section 15F. Residential leases or rental agreements restricting litigation or landlord liability; ouster of tenant; remedies Section 15F. Any provision of a lease or other rental agreement relating to residential real property whereby the tenant agrees to waive his right to trial by jury in any subsequent litigation with the landlord, or agrees that no action or failure to act by the landlord shall be construed as a constructive eviction, shall be deemed to be against public policy and void. If a tenant is removed from the premises or excluded therefrom by the landlord or his agent except pursuant to a valid court order, the tenant may recover possession or terminate the rental agreement and, in either case, recover three months’ rent or three times the damages sustained by him, and the cost of suit, including reasonable attorney’s fees. Any agreement or understanding between a landlord and a tenant which purports to exempt the landlord from any liability imposed by this section shall be deemed to be against public policy and void. Chapter 186: Section 16. Leases or rental agreements restricting occupancy of children Section 16. Any provision of a lease or other rental agreement relating to real property whereby a lessee or tenant enters into a covenant, agreement or contract, by the use of any words whatsoever, the effect of which is to terminate, or to provide that the lessor or landlord may terminate, such lease or agreement if the tenant has or shall have a child or children, who shall occupy the premises covered by such lease or agreement, shall be deemed to be against public policy and void. Chapter 186: Section 17. Occupancy constituting tenancy at will; termination Section 17. For the purposes of this chapter, chapter one hundred and eleven and chapter two hundred and thirty-nine, occupancy of a dwelling unit within premises licensed as a rooming house or lodging house, except for fraternities, sororities and dormitories of educational institutions, for three consecutive months shall constitute a tenancy at will; provided, however, that if the rent for occupancy in such premises is payable either daily or weekly, seven days written notice to the occupant shall be sufficient to terminate the tenancy where the tenant is committing or permitting to exist a nuisance in or is causing substantial damage to the rental unit, or is creating substantial damage to the rental unit, or is creating a substantial interference with the comfort, safety, or enjoyment of the landlord or other occupants of the accommodation; and provided, further, that the notice shall specify the nuisance or interference. Occupancy of a dwelling unit within a rooming house or lodging house, except for fraternities, sororities and dormitories of educational institutions, for more than thirty consecutive days and less than three consecutive months, or within a fraternity, sorority or dormitory of an educational institution for 20 any length of time, may only be terminated by seven days’ notice in writing to the occupant by the operator of such dwelling unit. Chapter 186: Section 18. Reprisal for reporting violations of law or for tenant’s union activity; damages and costs; notice of termination, presumption; waiver in leases or other rental agreements prohibited Section 18. Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or, in the city of Boston to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises a violation or a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; or reporting or complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord; or for organizing or joining a tenants’ union or similar organization, or for making or expressing an intention to make, a payment of rent to an organization of unit owners pursuant to paragraph (c) of section six of chapter one hundred and eighty-three A shall be liable for damages which shall not be less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of tenancy within six months after the tenant has commenced, proceeded with, or obtained relief in such action, exercised such rights, made such report or complaint, or organized or joined such tenants’ union or within six months after any other person has taken such action or actions on behalf of the tenant or in, or relating to, the building in which the tenant resides, shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time t