On a recent BiggerPockets.com forum post there was a question asked about the newly revealed CDC ruling to cease all evictions for non-payment of rent throughout the end of the year 2020 to end December 31st.
The CDC has posted the declaration to this mandate that you can review to understand the fine details. There is also a new Federal Moratorium Declaration Form that Landlords can start using in accord with the CDC declaration whereas a tenant who cannot pay rent must fill out the form and submit this to their landlord “under pains and penalties of perjury.”
BiggerPockets.com is a national forum for real estate and each state has their own laws for how to execute an eviction. Massachusetts handles this a little differently than how the question was asked. The question was asked as follows:
“So, a landlord puts a new tenant on a month to month lease. When the tenant stops paying rent, give them notice that you are ending their contract, but not for non-payment of rent. Should be legal to evict for that reason, correct?”
Close, but not exactly. There are a few ripples to iron out in the Massachusetts nomenclature.
In Massachusetts, we call these two separate animals, pardon the semantics, but they count in how they may be presented before a housing court judge.
Month-to-Month:
This is called a rental agreement contract for a specific rental period, for instance, a one-month contract. Hence, a month-to-month rental agreement as we call it. Under this type of agreement a landlord can terminate either with one month 30-Day Notice To Quit (a full rental period under the agreement), or for a specific rental agreement violation written into the contract. The catch here is that the rental clause MUST STATE IN WRITING that such a violation “will result in immediate termination of the rental contract”. Bingo!
We have seen weak rental clauses in housing court where the contract will say something trivial like no smoking, or no sub-leasing the apartment. But that’s it! There are no consequences to that violation. The landlord stands before the judge and says, “My contract clearly states “No Smoking”. Here is a picture of them smoking on the property. I want them out!” Then, they judge looks at the picture, reads the contract then says to the defendant (the tenant). Stop smoking on the property and adhere to the lease. Then turns to the landlord and says, “Your signed written agreement does not state that this offense is grounds for an eviction, next case.”
Lease Term Rental:
A lease is a term agreement which defines a specific start and end date to the contract. For instance, a 1-Year Lease Rental Agreement, or a 6-Month Lease. They term can be whatever you want it to be for whatever purpose you need it to be. This is a different beast from the month-to-month in several ways.
First, you cannot terminate the agreement during the term for any reason at all. The term must be honored by both parties. We cannot evict, and they must obey the terms. Except, for a clearly written termination clause, which clearly states that any violation of the clauses will result in termination of the rental contract which is grounds for an eviction.
Second, for a “breach of the contract” eviction, the lease can state that the move out date be a set amount of time before you can start the eviction process. Our contract is a 5-Day Termination clause which is totally legal. We have seen some leases with a 3-Day Termination clause as well.
Third, and probably the biggest difference between the two.
For a just cause eviction, in Massachusetts, the defendant CANNOT COUNTERCLAIM! Ok, this is huge! In the month-to-month case you bring the tenant to court for X offense, then they turn around with pictures of damages or mouse dropping, then this all turns the tide back to the landlord responsible to correct the issue first, then reschedule the hearing to a later date on the docket. This is why some eviction cases can get drawn out over time, all while not collecting rent and racking up legal fees.
The breach of lease with a strong termination clause is almost bullet-proof and impervious to a counterclaim from the tenant. Ok, if they produce photos of known damages like water pouring through the ceiling, that is a habitability issue that will need to be addressed. But now, that same judge looks at the pictures of the tenant smoking on the property, reads the lease and says, “I have reviewed the case and will issue my findings to both parties by mail, next case.” This is legal talk for the landlord just won the case and will issue the execution order bt mail to both parties.
THIS, is why we will only do a lease, and not a month-to-month rental in Massachusetts. Different strokes for different folks. Everyone sees this different so decide what works best for your business model.
So, the take-away points from 30,000 feet are:
- ALWAYS have a written rental agreement signed by both parties
- Review your lease/rental contracts for holes in your liability
- Consult a state Landlord/Tenant Attorney to review your documents
- Make the needed changes moving forward to add those complete termination clauses
- Clearly state the clauses with “cause for immediate eviction” in writing for each clause
Disclaimer: I am not an attorney nor do I play one on TV. This post is not being given as legal advice and is merely to express an educational comparison of two different types of rental contracts. You should always consult a Landlord/Tenant attorney in the state where you do business to be in full accordance with Landlord/Tenant Laws in your state.
What’s on Your Mind?
Do you have any other ideas on this topic you could share to help our online community? Please chime in to share a comment or review. All feedback is welcomed. Thank you in advance for your continued support!
Warmest regards,
Brian Lucier
Belaire Property Management
Regional Property Manager
(978) 448-0669 office
info@belaire.co
www.belaire.co
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