yep, that's a gun to our heads.

[douxquemiel.livejournal.com]

Tis the season, I suppose.

We're having some issues with our landlord, and I was trying to find an answer amid the already numerous posts in davis_square about this, but I'm twisting myself into knots.

Our lease is up September 1. Our landlord claims it takes two months to show and rent out our apartment, and would like to start doing so immediately (as in, tonight). Our lease is the standard lease, and it says we need to give 30 days notice if we intend to move.

"Lease Renewal and/or Vacating Notice:
Upon the expiration of said Lease term, either party hereto may notify the other of their intent to renew. Unless the Lessee gives the Lessor a 30 day written vacating notice, it is assumed that this Lease shall become a month to month Lease. Failure by the Lessee to provide the Lessor with a 30 day written notice will result in the Lessee being assessed 30 days rent in lieu of notice, and may be deducted from the Lessee's deposit if payment is not made upon notification. During the final 30 days of Lease term, Lessor may enter and show premises to any prospective Lesses at any reasonable hour of the day after making an effort to give advance notice."

As of right now, we're 62 days away from the end of the lease. The lease states we have to give notice by 30 days. Right now he's saying he needs to start showing the apartment, and we are "more than welcome to stay for next year if you sign before someone else takes it.", i.e., if someone else sees it and likes it tomorrow, they'll sign the lease and that's just tough for us, because we couldn't make up our minds (earlier than expected). Can he do this?

EDIT: HOLY MACKEREL. Thanks, y'all! I appreciate all your input. I think the final verdict was that yes, he could enter the apartment to show it, but we still had the right of first refusal, which he was implying he wasn't giving us.

BUT. My boyfriend and I discussed it and we decided to stay, so the entire point is moot. Thanks for all your advice, and I hope this post might one day be of help to someone else tiptoing through the land mine of housing contracts. Blecch.

Comments

I am most certainly not a lawyer.

[srakkt.livejournal.com]

As I understand it, yes. Your landlord can do this. Sort of.

In MA, unless I am much mistaken, your landlord *must* give you *at least* sixty days notice that your lease will not be renewed.

[veek.livejournal.com]

IANAL, but did read the lease excerpt you posted. For one thing, it looks like your landlord is notfree to enter and show premises now, as long as you don't give him permission to do so.

[turil.livejournal.com]

In Massachusetts you do have a right to refuse to grant permission to a landlord, but not indefinitely. If they have a valid reason to enter, eventually a court will force you to let them in.

[latvianchick.livejournal.com]

I'll let someone more informed comment on whether or not he can do this (although from the text of the lease the answer would appear to be "no").

A relevant question is whether you actually know your plans for next year. If you do, and you do intend to stay, I'd be inclined to go with his (unreasonable) demands to preserve peace.

Is your landlord's name Fred and does he wear red shirts?

[glowroper.livejournal.com]

or David and he is sort of nerdly?

[annalauwa.livejournal.com]

we've had to give 60 days notice to our landlords about whether we were staying or not. but since it sounds like you guys are only required 30 days notice, that you shouldn't be forced to decide now. additionally, it sounds like your landlord definitely cannot come in until it's 30 days before you leave.

[turil.livejournal.com]

This lease grants the landlord the legal right to enter without permission within 30 days of the end of the lease. Otherwise, the standard property law says that a landlord always has the right to enter an apartment if they have a legitimate reason (showing the place falls within those reasons) and they have permission. And a tenant can't refuse to allow a landlord entry repeatedly.

So, yes the landlord can show the place now, but does need to get permission. Then in August, the landlord doesn't need permission anymore, according to this lease.

[turil.livejournal.com]

Also, the landlord here isn't forcing them to decide at all, he's pretty clearly saying that he doesn't want to renew the lease. But he's being nice about it and giving them the option to renew, if no one else wants the place first.

[clevernonsense.livejournal.com]

I think your landlord is being perfectly reasonable.

[tamalinn.livejournal.com]

yes. the lease might say 30 days, but i think 60 days is pretty standard. it does take time to advertise and show an apartment, find new tenants, clean--if need be. wanting 60 days notice is totally fair. but at the same time, if he wants that, the lease should say it.

[koshmom.livejournal.com]

caveat: I'm no lawyer. however, reading your lease, it appears to imply that 1. your landlord cannot show your place unless it's within 30 days of the end of your lease. 2. If you have NOT sent your landlord a note saying you'd like to leave, you don't actually have to sign another lease to stay there. You instantly become a month-to-month at will tenant. Apparently, unless it's written otherwise in the lease, your landlord cannot "not renew the lease" with you. So they can't evict you as long as you keep paying rent. He/she Cannot lease it to someone else.

So you don't have to sign anything, and they can't kick you out. Just keep paying your rent, and Don't Sign Another Lease.

[veek.livejournal.com]

Well, once a tenant is on a month-to-month, either party is usually free to end the contract with a 30-day notice. Just clarifying.

[talonvaki.livejournal.com]

This was true for me. I signed one lease in 2000. I just moved out this year. I gave my landlord 30 days notice.

[turil.livejournal.com]

You've read it backwards. The landlord is not renewing the lease. Thus the tenants have no rights to stay there. But he's being nice and saying that if no one else wants the place first, they can stay if they want to.

And yes, he can clearly show the place now, as long as he has permission, it's just that within 30 days of the lease ending he no longer needs permission to enter, as long as he's given sufficient notice, and it's at a reasonable hour.

[inahandbasket]

Looks like the pertinent part is: "During the final 30 days of Lease term, Lessor may enter and show premises to any prospective Lesses at any reasonable hour of the day after making an effort to give advance notice."

He's free to not renew your lease, but it would appear that you can roadblock his showing it until the last 30 days.

There's nothing that says you have first-dibs on renewing the lease, he's perfectly within his rights to deny you renewal if he doesn't like you.

I am not a lawyer either

[unferth.livejournal.com]

As I understand it, he can give you notice that he won't be renewing the lease any time he wants. It won't affect your rights as established by the lease, though.

I believe he can ask you ahead of time what your plans are. You're not legally bound to answer or anything, but if his position is 'I need to know early and if you don't answer I'm going to give you notice that I'll be terminating the lease' that certainly seems like it would be legal. He can take whatever factors he wants under consideration when deciding whether or not he wants to renew your lease.

As far as whether he can decide early that he wants to rent it out to a new tenant once your lease is up - yes, absolutely. He could have decided that the day after you signed it. It's still yours until the lease is up, but it's entirely up to the landlord who has a tenancy in the property after that.

On the other hand, that lease says it goes month to month after the initial period. Unless you sign another fixed term lease, it seems to me that you could tell him you plan to stay under the month to month provision, then give your 30 day termination notice 30 days before September 1. It'd be kind of an obnoxious move and would probably sour the relationship, though, making your last month there possibly more unpleasant.

Entry to show the property is a stickier question. It seems to me that the lease provision quoted limits the entry period to the last 30 days. As a general rule, a landlord can only enter the leased property as allowed by the lease or in a few other cases listed in MGL chapter 186 section 15b (http://www.mass.gov/legis/laws/mgl/186-15b.htm). In theory if he enters or sends an agent to show it without a legal reason, it's trespassing, and again in theory you can get a restraining order against it. But that will make things even more unpleasant, even if it's a necessary step to enforce your right to privacy.

Were it me, and if my plans were uncertain, I'd probably a) point out that the lease he chose says the apartment can only be shown in the last 30 days and b) offer to negotiate on that if he'll agree in writing to reach you at your preferred phone number at least 24 hours in advance prior to showing it. But it depends what your priorities are.

Re: I am not a lawyer either

[turil.livejournal.com]

You'll notice that the bit about entering within the last 30 days of the lease is giving the landlord extra rights, in addition to the normal ones. Then he can enter without permission, as long as it's withing a reasonable hour, and he's given fair warning that he's coming.

I'm not sure why people are reversing this and thinking that it means he can't show the apartment at other times. It's like saying that "I can eat an apple tomorrow" somehow equates to "I can't eat an apple today." I don't get it...

Re: I am not a lawyer either

[unferth.livejournal.com]

I really do not think that's true.

Well, OK, a strict reading of what you wrote there is true ('...he can enter without permission...', implying that he needs permission to enter any other time) but between this comment and others on the thread it sounds like you think the landlord still has a right to enter the leased property without permission from the tenants even outside the specified 30 day period. As I understand the law (and again I am not a lawyer and am not claiming to be giving legal advice) the landlord has no more right - absent a lease provision - to enter the leased property to show it to a prospective tenant than, say, you or I do. He can ask, of course, but if the tenant refuses permission that's the tenant's prerogative. Just as it would be if I asked to come in to a privately owned home and the owner refused.

A landlord does not have a general right to enter the leased property to show it to a prospective tenant. The lease doesn't need to explicitly forbid this because it's already forbidden for anyone, landlord or otherwise, to enter the premises without permission. Or, in the case of a landlord, for a small number of exceptions that do not include showing the property to a prospective tenant; I quoted the relevant law listing those reasons here (http://community.livejournal.com/davis_square/1845042.html?thread=21607986#t21607986).

To keep working with your apple example, it's rather like a clause saying 'The landlord may eat your apple during the last 30 days of the lease, with reasonable notice.' Normally, the landlord doesn't have the right to eat your apple. If you've signed a contract giving him the right to do so during a limited period, that doesn't give him the right to do so outside that period.

It sounds to me like you're operating under the impression that a landlord automatically has a right to enter the leased property at any time to show the property, regardless of whether or not that right is established in the lease. Contrariwise, I'm fairly sure that the right to freely enter their property for this reason or any other not explicitly called out in the law is one of the rights a landlord gives up when signing a lease, just like they give up the right to, say, show up and sleep on your couch. The law allows them to write that right into the lease, and forbids them from writing in a right to show up and sleep on your couch, but it doesn't do so if the lease doesn't actually include that clause. Or, as in this case, includes it only for a defined time period.

Lawyers aren't all that useful anyway...

[turil.livejournal.com]

The normal legal right, above and beyond this lease, is that a landlord can always enter the apartment for a good reason if he or she has permission from the tenant. The tenant can indeed refuse to grant permission, in which case the landlord can go to court to try to force the tenant to allow him or her entry. If the tenant doesn't have a good reason for refusal, the courts may well give the landlord permission to enter.

[pierceheart.livejournal.com]

talk to a lawyer, stat, like sean odonovan, who is also an alderman

[ringrose.livejournal.com]

Regardless of the right or wrong in his showing the apartment, the landlord does not have to renew your lease.

So if you like the apartment, and can stand the landlord, I suggest you tell him something like
"We'll tell you if we're staying in a week. If we're not staying, we are OK with you showing the apartment at reasonable times; if we're staying we will sign a lease and you don't have to spend time showing the apartment." Perhaps point out that the lease says 30 days, not 60, and maybe he wants to amend the next lease you sign.

Basically, ask for compromise. An extra week to decide, at which point the landlord knows. The upside for the landlord is that if you decide to stay he doesn't have to go through showing the place. That's a really big upside. Every time you get new tenants, you're spending your time to show it and running the risk of getting tenants who will trash the place.


One thing:
Before going too deeply into the lease itself as a binding document, be aware that there are a bunch of tenant rights you cannot legally sign away. The part about using the deposit for the last month's rent, for example, fires some crusty neurons which say "I'm not sure that's allowed, even though it is standardish practice." Similarly, the deposit is supposed to be off in some bank account generating interest and if the deposit isn't used you're supposed to get that back. I think. It's been a long time since I looked at that, but the weirdness there is why we don't take deposit or last month's rent from the friends who rent from us.

[ringrose.livejournal.com]

By the way, I found the "Massachusetts Landlord Survival Guide" to be something I wished I had while renting.

[unferth.livejournal.com]

Unpaid rent a tenant legitimately owes is a legal use of a security deposit, for what it's worth.

MGL Chapter 186 section 15b, paragraph 4 (http://www.mass.gov/legis/laws/mgl/186-15b.htm):

[T]he 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

Not that that changes the general advice to be aware of your rights as a tenant, and the frequency with which illegal clauses make it into theoretically 'standard' leases.

[ringrose.livejournal.com]

Yes. But it sounds to me like the security deposit is being used for the unpaid rent for the month _after_ the lease ends, in the event that they don't say they are leaving. I'm not a lawyer either, but that same section of MGL says you return the deposit at the end of the lease. At the end of the lease, your rent for the next month isn't yet due. I think.
Except that this lease tries to say it is.

I mean, the clause is _really_ trying to say "If you don't tell me you're leaving 30 days before the end of the lease I get to assume you are staying another month and charge you rent accordingly." And it's a perfectly reasonable thing to say. In a world of trying to be reasonable people, we shouldn't actually care about the legality of this perfectly sensible thing. It converts to a TAW which also requires 30 days notice anyway.


The whole problem is really that the landlord wants 60 days, not 30. And in the end you're going to have to give him close to that 60 days notice if you don't want the potential of a note saying he doesn't elect to renew your lease. He has the upper hand; when it comes down to it this is owned by him.

[unferth.livejournal.com]

I think the extra month's rent would in fact be due if the tenant makes no statement either way and just moves out.

The lease says it auto-extends as a month to month lease if the tenant doesn't give the landlord at least 30 days notice. So signing that and then not giving written notice is agreeing to an extra month of the lease, which you're legitimately liable for if you don't give proper notice. If August 2 rolls around and the tenant hasn't given notice to end the lease August 31, and the landlord hasn't given notice either, the tenant has already agreed by signing the original lease to keep it in effect for September. And if they move out August 31, the landlord is legitimately entitled to collect that September rent.

Although the 'in lieu of notice' bit is weird, and depending on how exactly the landlord tried to apply it could be illegal. They certainly can't, say, keep your security deposit as unpaid rent if you give notice on Sept. 16th that you're ending your tenancy Sept. 30th, then rerent the apartment to someone else starting Oct. 1. November 1, yes, but claiming the rent keeps your tenancy in force for the full period.

[leko.livejournal.com]

It sounds like the landlord is just nervous about having a tenant for next year. He can't start showing it unless you give him permission, or he's given you written notice to vacate in 30 days (from the start of the next month, I believe, but check that with a lawyer) and you're now within that 30 days. He can't do anything right now except decide he doesn't like you and make you leave at the end of your lease just to be a dick, risking a vacancy if he can't get it rented within that 30 days before the lease expires.

[bobobb.livejournal.com]

I'm assuming your lease expires on August 31st, therefore I think the landlord can start looking for someone to fill the new lease whenever he wants. That would make sense right?? I thought the 30 days was during the leasing period.

[glowroper.livejournal.com]

The landlord can look for new tenants all he wants, although first dibs goes to current occupants. What the landlord cannot do is start showing the apt at this point, based on the current tenants still living there and not (at this point) being required by the lease to commit to staying.

So the landlord should take a lot of pics in between tenants, and those he can send to whomever he wishes. Next time. :)

[unferth.livejournal.com]

I'm not aware of any kind of requirement to give the current tenants first refusal; are you sure about that? If so, do you have a source? I'd be interested to read one.

[glowroper.livejournal.com]

No - I was taking that from the OP's comment further up. They stay tenants unless they opt out.

[genesayssitdown.livejournal.com]

just be like "lease motherfucker read it". you don't have to be a jerk, but these apartment viewings are disruptive, uncomfortable, and just in general incredibly awkward. who the fuck wants strangers wandering around their house, looking at things? making me feel embarrassed for sitting around watching star trek? fuck that.

[smacaski.livejournal.com]

You should never ever be embarrassed for watching Star Trek. Unless maybe you watch it while naked--then, yeah, it would be awkward during apartment-viewings.

[genesayssitdown.livejournal.com]

yeah that's almost the exact problem

[glowroper.livejournal.com]

...but not illegal!

[genesayssitdown.livejournal.com]

hehe, uh yes. yes.

[ifotismeni]

if watching star trek while naked is wrong/illegal, i don't want to be right!

._.

[adaptively.livejournal.com]

Being naked when your landlord pays an unannounced visit is a great way to make sure it doesn't happen again.

[thespian.livejournal.com]

i know my landlord is showing things for september, now. If your landlord doesn't start showing it, he'll have the dregs of apartment hunters to rent to. While I'm sympathetic to you, also cut him some slack...this is an awful time to have an unfilled apartment.

[smoterh.livejournal.com]

OK. This statement is your clue.

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.

Regardless of what's in your lease, your landlord has the right to enter the apartment to fix, inspect and show the apartment any time during your lease, given that he/she provided you with advance notice.

Just because in your lease it states that your landlord may enter 30 day before lease is up is not mutually exclusive with his/her right to enter your premises at any time for that purpose.

[masswich.livejournal.com]

I won't wade into the thicket of legal issues here but I would point out that if your lease does become month-to-month he is free to raise your rent within reason. I have never heard of the requirement that notice to terminate a lease must be 60 days in advance. But if it were, it sounds like he's given such notice by talking to you about his options.

While the excerpt of the lease says he may show the place within the last 30 days I am not sure that eliminates his right to show the place with reasonable notice if you have not told him you want to renew.

Generally sounds like you have a mediocre relationship with this landlord, so it might make sense to move anyway.

[glowroper.livejournal.com]

When I was going through landlord woes, I think I found that "advance notice" was a minimum of 24 hrs.

This all falls under a concept called "right to quiet use," I think.

[pierceheart.livejournal.com]

i foumd out the hard way - there is no 24 hour notice law in ma.

[unferth.livejournal.com]

According to the housing court FAQ (http://www.mass.gov/courts/courtsandjudges/courts/housingcourt/housingquestions.html#27) the requirement is that the landlord should be 'reasonable'. What is and is not 'reasonable' is, predictably enough, undefined.

I'd swear I once read an opinion or FAQ that said 24 hours was a common guideline used by the courts even though it's not in the statutes anywhere, but I've never been able to find it again. Sounds like you had a more concrete information source anyway.

[unferth.livejournal.com]

"Regardless of what's in your lease, your landlord has the right to enter the apartment to fix, inspect and show the apartment any time during your lease, given that he/she provided you with advance notice."

I don't think that's true. The law you quoted restricts the provisions that can be present in a lease to allow entry to only permit those specific reasons for entry. It doesn't permit entry for those reasons absent a clause in the lease that grants that permission, it just says that such a clause in the lease is legal. And that clauses that grant a right of entry for other reasons are not legal.

In other words, that law says that a lease clause saying the landlord can enter any time for no reason at all is illegal, not that those clauses are automatically in effect even if the lease doesn't contain them.

There are some additional provisions made later immediately following that text which are legal even absent a lease provision:

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.

But showing the apartment is not one of those.

See for more discussion this document aimed at landlords:
http://www.gis.net/~groucho/landlord.html#25

"Under Massachusetts General Laws, ch.186, §15B, you may include in a rental agreement only the following rights to access..."

If the right isn't in the rental agreement, it doesn't exist.

[girlgonemad.livejournal.com]

I hope you get it worked out. The management company for the place we rent requires renewals to be signed in March for September leases.

It seems that he can show the apt.

[nvidia99999.livejournal.com]

to other people (i.e., enter the apt). Only during the final 30 days of the lease. Now it's two months away.

He can always show the apartment...

[turil.livejournal.com]

as long as he gets permission. This bit in the lease adds the extra element of a landlord not needing to get permission to show the place within 30 days of the end of the lease. The difference is in the permission. But he can always enter, and has a right to ask at any time.

[turil.livejournal.com]

It sounds like your landlord is now notifying you that he's not planning to renew your lease, but he's also saying that if you really want to stay, he won't stop you, as long as no one else says they want it first. So legally, he's saying that he's not going to renew your lease. The month-to-month thing only is relevant if he does want to keep you there, which it sounds like he doesn't, really.

And as for the showing the place, your lease says nothing about him not being able to show the place now, just that he's got extra special permission to show it within 30 days of the end of the lease, and doesn't need your permission at all, as long as he gives you notice ahead of time. So, yeah, what he's doing is completely within your lease terms, as long as he's asking permission to show the place.

[diatomacearth.livejournal.com]

After wading through all the above, I think I'd want to ask an actual lawyer, or someone else who works closely enough with tenant law to be clear on what the law and what your lease actually entitle you to, or require of you.

It's unclear whether you want to keep this apartment for another year. I don't know if that matters in terms of your legal rights and obligations, but I imagine it will be relevant when you're trying to figure out how to respond to your landlord's request, so if you haven't made up your mind yet, you probably ought to.

Good luck! Dealing with housing sucks.