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Rental Handbook: Tenants' Remedies

Welcome to the sixth installment of my comprehensive 'Rental Handbook' aimed at helping renters (and landlords) in the Boston area understand the rights and obligations of tenants (sometimes referred to as renters or lessees). In this Handbook, I will approach issues that you may face in dealing with a rental in the city, or in the surrounding towns of Newton and Brookline.

Today we will cover Tenants' Remedies to situations where their landlord is not following state regulations. As we addressed in the most recent installment of the 'Rental Handbook,' a landlord is required by the state of Massachusetts to maintain a rental property in a habitable condition.

If something in your apartment needs repair, or if there is a Sanitary Code violation, tell your landlord immediately via phone. Ask the landlord to let you know when a repair person will be coming to fix the problem. It is important for you or someone to be there so you can make sure the repair person can get into the apartment. If your landlord is not responsive to your first attempt at getting the issue resolved, provide a written account of the problems to the landlord. My personal recommendation is to send an email with a 'Read Receipt' to your landlord, and to deliver a letter via certified mail detailing your problems and asking the landlord to fix them. Keep a copy of whatever you send to your landlord on file.

If your landlord does not begin work on the issues in a reasonable amount of time (between 2 and 30 days, depending on the severity of the issue), you have further recourse. If a landlord does not respond to a tenant's complaints about a Sanitary Code violation, the tenant may request that a code enforcement officer or the local board of health inspect the apartment. An inspector can then come to the apartment, review the conditions, and order the landlord to fix the problem if deemed necessary. In the event that the landlord still fails to fix the problem, a tenant may:

1. Repair & Deduct - You may make emergency repairs in an apartment or common living area and deduct up to four months future rent to pay for them, if three conditions are met:

  • The local Board of Health or other code enforcement agency has certified that the present conditions endanger your health or safety; and

  • The landlord receives written notice of the existing violations from the inspecting agency; and

  • The landlord is given five days from the date of notice to begin repairs or to contract for outside services and 14 days to substantially complete all necessary repairs. (The inspecting agency or court may shorten this time frame.)

If you contract to make repairs and then deduct the cost from the rent, you must retain a receipt. If you qualify under these requirements, you may treat your lease as void. You then have the right to move out if you choose not to make repairs. However, you must pay the fair rental value for the period you occupied the apartment, and you must vacate within a reasonable period of time.

2. Rent Withholding - A tenant may properly withhold a portion of the rent from the date the landlord has notice of the repairs needed. Rent withholding can be a useful tool to force repairs, but it is a serious step and should be dealt with carefully. You may want to get legal advice before withholding your rent since the landlord may try to evict you for non-payment of rent. You may withhold a portion of your rent if:

  • You have appealed to your landlord in writing to make the necessary repairs, or:

  • Your local Board of Health has inspected your apartment and found health code violations and notified your landlord, and:

  • You are current in your rent up until the time your landlord learns of the problem, you are not the cause of the problem, and the unsanitary conditions do not require the apartment to be vacated to make repairs.

Deciding how much to withhold is based on each situation. You need only pay the fair rent for your unit given its defective condition. Once the landlord has repaired all defects, the tenant must pay all withheld rent.

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