Leases and Tenancies-At-Will

Leases

A lease is a written agreement between the tenant (sometimes called the lessee) and the landlord
(sometimes called the lessor) and should include the following:

  1. The amount of rent

  2. The tenancy’s termination date

  3. The names of those allowed to live in the apartment

  4. The amount of the security deposit (if applicable)

  5. The name, address and phone number of the landlord or person responsible for maintaining the property, as well as the person authorized to receive notices and court papers.

Leases oblige the tenant to pay the agreed-upon rent for the term of the lease while protecting him from rent increases and “no-fault” evictions during the same period. Within 30 days of signing a lease, a landlord must give an executed (signed) copy to the tenant.14

A “tax escalator” clause is an exception to the no rent increase rule during the term of the lease. In times of rising property taxes this clause allows a landlord to increase a tenant’s rent to cover increased taxes. In order for a tax escalator clause to be legal and binding, it must include the following:15

  1. Language requiring the tenant to pay a pro-rated share of the tax increase equivalent to the size of his apartment. (For example: In a building of ten units equal in size, each tenant would pay 10% of the increase in property tax)

  2. The exact percentage of the building space that the unit occupies.

  3. A clause guaranteeing a rent reduction in case of tax abatement.

The people named on the lease are those who have the landlord’s permission to live in the unit. Most leases provide that additional people cannot move into the unit without the landlord’s permission. Without this permission, preferably in writing, the landlord could move to evict all occupants for “violation of covenant."

Tenancies-at-Will

A tenancy-at-will agreement can be oral or written. A tenancy-at-will agreement is different from a lease because it allows the tenancy to be terminated by either the landlord or the tenant with a written notice to the other party. The notice must be received no later than one full month (or 30 days, whichever is longer) before the date of termination.16 A written contract should be read thoroughly before it is signed.

The following is a list of non-written agreements that constitute tenancies-at-will:

  1. The tenant has an oral agreement to rent the unit.

  2. The tenant’s lease has expired but the landlord continues to accept rent payments without objection. (By endorsing the check with the phrase “for use and occupancy only” the landlord could show that he objects to extending the tenancy.)

  3. The tenant has been a resident of a rooming/lodging house for three or more consecutive months.

Tenancy-at-Sufferance, Tenants by Regulation and Trespassing

A tenancy-at-sufferance exists under each of the following circumstances:

  1. Under a tenancy-at-will agreement the tenant remains in the apartment after a valid notice to quit from the landlord has taken effect.

  2. The landlord has lost the property to eminent domain.

  3. The tenant is a sub-lessee who hasn’t vacated after the original tenant’s lease has expired, and the landlord has refused to continue the sub-lessee’s tenancy.

  4. The written lease has expired, not been renewed, and the landlord has protested the tenant’s continued occupancy.

  5. The landlord has served a notice to quit that terminates the tenancy for breaking a lease covenant or for non-payment of rent.

  6. The tenant remains in an apartment after the issuance of a court-ordered eviction.

Tenants by regulation are tenants who live in subsidized housing (other than Section 8) and may have some additional obligations, rights or protections. Both landlords and tenants should familiarize themselves with the rules and regulations of the government agency providing the subsidy.

Trespassing is the habitation of a unit without permission. The mere occupancy or possession of a unit does not make a person a tenant or create a tenancy. In order to create a tenancy the circumstances and conditions outlined in the above-mentioned tenancy types must have taken place. However, illegal use of the property by the tenant can void the tenancy and reduce the tenant to the status of a mere trespasser.

14. G.L.c. 186 §15D
15. G.L. c. 186, §15C
16. G.L. c. 186, §12