MA eviction with lease - can you collect lost rent?

Question

I have a tenant who is threatening to withhold next month's rent.  I won't go into the specific reasons as I believe they are unjustified.  The tenants are on a 1 year lease which started May 1, 2016.

If they broke the lease/abandoned the property, I would be able to sue them for rent for the remaining lease term for the period I couldn't find replacement tenants (MA requirement that a landlord mitigate).

If they withhold the rent, I will likely start the eviction process immediately.

If I evict them, can I recover the unpaid rent for the month(s) they withheld AND the unpaid rent for any period the unit remained un-rented while I find new tenants?  I am nervous about evicting if I can't recoup at least some of the rent for the period the unit may remain un-rented.

Thank you.

Derreck Wells · Answer

As we all know, MA is a very tenant friendly state. If I were in your shoes, I'd simply explain to the downstairs tenants that when the noise is going on, they should call the police and not you. Tell them you checked the laws and it's not something you can evict the upstairs tenants over, but maybe if the police show up they might quiet down.

Do the downstairs tenants have a baby that the noise is keeping awake? Or do they just want quiet time when they get home from work? Either way, get the downstairs tenants to believe you are on their side.

Tell them if it really bothers them that much, you will let them out of their lease with no legal repercussions and will talk to their new landlord on their behalf. Tell them you will explain to their new landlord that you will be returning their security depost and they will have it as soon as they broom sweep the unit. Some tenants need that deposit to put down on the next apt. as they don't earn enough to come up with another 1st, last, and security. Which could be why they're saying they will withhold rent, to put it away for the next apt. If you are talking to the next landlord and assuring them the tenant will be getting the deposit from you on xx/xx/xx date, they may be willing to let them move in before actually receiving it. However, don't give the money directly to the new landlord without a bulletproof contract from the tenants saying that's okay. You don't want them trying to sue you saying they never got their deposit back.

It's always better if the tenants believe you are on their side, even if they are really the problem tenants. From their perspective, the upstairs tenants are the problem. "If they would just be quiet we wouldn't have to go through all this." When the reality is "If you would just grow up and realize you live in an apt and not a SF home, you wouldn't have to go through all this."

Good luck!

Phil G. · Answer

Just my two cents..

1.  Eviction, especially in Massachusetts, should be your last option.  It can cost you more in time and treasure than expected.

2.  Getting a judgment is one thing, collecting on that judgment is entirely another.  I have a folder filled with uncollected judgments from my landlording days.  Which I use to remind myself of why I never want to own rental property again, whenever I think about getting in the game again.

3.  If you don't know the law well, use an attorney.  "Professional tenants" will know the law better than you.  Not sure if it's still this way, but tenant lawyers used to troll around housing court looking for unrepresented clients.

Best of luck!

Bonnie McCullough · Answer

I agree with Dooreuhn, it is usually better to make peace, if they want something fixed say you are working on it but will not if they are not current with the rent. Again too, without knowing the specifics of the situation it is really hard to give advice.

If they have some bogus claim that they are using to 'get out' of the lease easier/cheaper to let them. At least it is a good time of year to find replacements, it isn't winter.

Lisa Gorman · Answer

Thanks again all - I have taken the above suggestions and have told them I will let them out of the lease.  Unfortunately, they will not respond to the offer (offered it in person and in writing with an agreement of release)  and just keep piling on the complaints - multiple times a day :).

This is all a big learning experience!   Next lease for this apartment will be a month to month.

Lisa

Broquelle Arguello · Answer

Are there any judgment enforcers/private investigators in MA that you guys tried working with?  I realize it may be an ongoing battle to pursue low-income, but there are ways to track anyone down to levy or garnish -

Lisa Gorman · Answer

Thanks all - the main reason they want to withhold rent is that there are two young children upstairs that they say are running around and ROLLERBLADING and making too much noise to "all hours of the night".  I have met with the upstairs tenants in their apartment and quite honestly they have so much furniture crammed in the apartment, there is no way the kids could be running around or rollerblading.  The parents upstairs said they have no idea what would be causing the noise.

I first asked the downstairs tenants to let the upstairs tenants know when there was disruptive noise - they refused to talk to them.  I therefore asked them to let me know WHEN so I could work with the upstairs neighbors - all the complaint emails continue -  they won't give any specifics - just keep telling me generally - "the noise continues".  Lastly, they have admitted that "all hours of the night" is before 10 pm - legally quiet time in the town is 11PM to 7am.

Again - I too want them out - but want to protect myself.

Dooreuhn Cee · Answer

Don't count on it.  I have had only partial success in getting eviction judgments paid.  Many folks getting evicted are judgment proof so there is no way to enforce.  Best bet is with folks that have good, long term jobs for garnishments.  Even with a garnishment, you have to pay the attorney an up front fee and a percentage of collections, so you would be fortunate to recoup 50%.

My advice is to have no ego, anger, or payback when making the decision.  You can lose more money by evicting, having to repaint, and finding a new tenant.

MA eviction with lease - can you collect lost rent?

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