Selling building, tenant breaks lease, can I keep safety deposit?

Question

I'm selling a 3 unit brownstone in Boston. I put in leases that required a 90 day notice period but generally treated my tenants well and gave them 5 months of notice so they could get their plans in order as the buyer wanted the building delivered vacant on June 1st. All the units had leases that expired then so it was going to work out fine but one of the tenants notified me on March 1st that they're moving out by April 1st. They're saying they're not obligated to pay for April or May because the 90 day notice period was meant to be for them not renewing, not for me selling the building.

It's in Massachusetts and, according to some Googling, I can keep the safety deposit for non-payment of rent but the complicating factor is that the tenant is 1) a minority 2) a lawyer 3) a town selectman.

It's only $2500 in security deposit and they would owe $5,000 in rent for April and May. I wouldn't chase down the remaining $2500 but I don't want to have to fight in small claims court, because I live in California and have zero interest in traveling to Boston with Covid-19 out there.

Account Closed · Answer

You might suggest to this lawyer that he might not enjoy you filing a complaint with the MA bar association for forcing you into a frivolous lawsuit.  Also, if he ends up with an eviction on his record, he may also be in trouble with the bar for that, as well.  He can get into serious trouble for either or both of those.

That's how I'd start the conversation.  You can hire an attorney to represent you in small claims court in MA, too.  It's different than CA:

https://www.mass.gov/service-details/small-claims-court

You can also hire an eviction attorney, I'm sure, and you wouldn't need to go there in person for that, either.  And then, you can sue him for your attorneys fees and file a complaint with the bar.  You can probably file the complaint with the bar online.

But, I'd start by letting him know you'd be happy to file an eviction, win, get him to pay the rent and your attorney's fees - and - then deal with your complaint with the bar.

Option B: he does the right thing - now.

That's what I'd do.

David Barnett · Answer

I'd probably put down a few bucks to talk to a local real estate attorney and have them give you their advice.  I'm not asking for the name of the selectman, and if the lawyer that you consult with is in Boston, they might have had a run in with this selectman, or can look at their history in the courts.  I think it would be money well spent because regardless of what you do (outside of just rolling over), this selectman is going to fight you and make it difficult for you.

If it were me, and depending on what your counsel suggests, I would probably turn any unpaid rent over to a collection agency just so it gets on the tenant's credit score.  I have very little patience for politicians who think that they are "above the law" so to speak.  It would be nice for this selectman to see that they need to pay rent just like everyone else, and their actions have some consequences.

Lien Vuong · Answer

I have a similar perspective as @David Barnett here. I don’t think a formal eviction process will be worthwhile since you’re going thru a sale and not a possibility given the COVID lockdown at the moment.

It’s evident that your tenant is taking advantage of the situation and looking to squeak away without paying rent that is justifiably due to you. I would consult with an attorney and just have him write a formal letter to him explaining the situation and he cannot just elect for early termination without the repercussions.

Your agent should have some attorney contacts in the local area for landlord attorneys so I can make some suggestions to you if someone who practices in the area. Sounds you like only have a few days to do it so I’d figure this out shortly. Good luck and congrats on the sale!

Account Closed · Answer

See, I totally disagree with the normal line of - go pay an attorney.  I have found that it never hurts to start out by calling their bluff.  I also research the laws involved.  But, I happen to know the rules for lawyers and the bar associations.  Lawyers can lose their licenses for behaving badly.  They are held to a higher standard.  And, they can get put on suspension for having bad credit and something like an eviction or to be counter-sued for a frivolous lawsuit - those things can put their licenses in jeopardy.

A bluff is free.  Call his bluff.  Say, sure, you want to move out and skip on rent?  I'll sue you.  I learned I can hire an attorney in MA even though I'm in CA to sue you in small claims court.  I learned I can file a complaint with the MA bar.  Go ahead, make my day.  Then see what happens.

Bullies normally back down when someone calls their bluff.  It works for me all the time.  It costs nothing.  You can't get sued for it.  So, you have nothing to lose by starting there.

Plus, obviously, not all lawyers are worth the money.  Just because they got their degree, doesn't mean they have good work ethics, bother to look up laws, actually do any work....it's not a magical answer.  And, even if they're terrible, they'll still expect you to pay them.  Waste of money 99.99999% of the time.

Colleen F. · Answer

Send him a letter on the disposition of the security deposit in a timely fashion according to MA Landlord-tenant law and see what happens.   The letter can show you kept the SD and he still owes the $2500. Of course you don't have to go after him for the balance if you don't want to.

Evan Polaski · Answer

@Alan M. to echo others, the initial consultation with a LL attorney will give you a lot of color as to actions.  In general, I cannot imagine you lease has language specifically excluding sale of property from renewal talk, AND even if it did you are not selling mid lease.  If the sale falls through today, he still has an effective, enforceable lease with you so it is irrelevant.

As for the minority, lawyer, selectman piece this would not concern me personally.  You are not singling him out due to his race, there are many attorneys that I have had to explain pieces of a contract to in the past, and as a public figure negative press can disproportionately effect him versus you.  You may be the landlord, but the news and public does not take lightly to elected officials exploiting COVID19 or leveraging their positions for personal gain.

Howard Herrington · Answer

I agree that it is best to consult a local real estate attorney here to discuss the best possible route to take on this.  If there is a way to get him to move rationally without getting courts involved then that would be best.  I am curious to know like @Theresa Harris what the lease states about tenants leaving early or if there is any clause in the lease about eviction due to sale of the property.

Theresa Harris · Answer

What does the lease say about a  tenant leaving early?

Selling building, tenant breaks lease, can I keep safety deposit?

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