Lease Clauses
Most leases are not written in plain english, and, in many cases, it is not clear what certain terms mean. For example, instead of using the words "landlord" and "tenant," leases usually refer to the landlord as the lessor and the tenant as the lessee. Below is a list of the most common lease terms and clauses and what you should watch out for.
Disturbance or Improper Use Clause
This is a clause that says a tenant or any person in her apartment is not allowed to disturb other tenants or use the apartment for illegal purposes. If you are involved in a dispute with your landlord, she may try to use this clause to threaten you with eviction . If she does, try to get signed and notarized statements from other tenants which say that you have not disturbed them. Also, under state law, a landlord does not have to give a tenant a notice to quit before evicting her if the tenant uses the premises for prostitution, gambling, lewdness, illegal sale of alcohol, or illegal possession or sale of drugs. If your landlord tries to evict you for improper use of your apartment, you should consult a lawyer as soon as possible.
Note: Your landlord also has a duty not to disturb you in the use and enjoyment of your home. If your landlord substantially interferes with your use of the apartment, a court may compensate you for the harm that you have suffered. For more information, see Chapter 13: When to Take Your Landlord to Court.
Self-Extending or Option-to-Renew Clauses
An extension clause (also called "self-extending") says that if you or your landlord want to end the tenancy at the end of the lease, you must give each other written notice by a certain date. If you do not, the lease will automatically extend for another term. If, on the other hand, your lease gives you an option to renew, you must give your landlord written notice that you want to stay. Self‑extending leases are more common than option-to-renew leases. For important information about how to protect yourself if you have either a self-extending or an option-to-renew clause, see How Long Is My Lease Valid?
Late Payment Penalty and Discount Clauses
The late payment penalty clause says that you must pay the landlord more money if you do not pay your rent on time. "Late" may be defined as any time after the sixth of the month. If you pay only several days late and your landlord demands a $5 or $10 penalty, for example, you do not have to pay this penalty. A landlord has no right to a late penalty until a tenant is 30 days late paying the rent.
If you do not have a lease, or if your lease does not have a penalty clause, you cannot be charged a penalty—even after 30 days. A landlord may also disguise a late payment penalty clause by calling it a "discount clause." A discount clause is where a lease says that your rent is $675, but that if you pay before the fifth of the month your rent will be "discounted" by $50 and you will only have to pay $625. This is illegal. If you have a discount clause and the landlord tries to collect what is really a $50 late penalty, do not pay. If a landlord continues to ask you for the money, tell your landlord (in writing) that under Massachusetts law, this clause is illegal.
Tenant's Covenants in Event of Termination Clause
This is a clause that may make you responsible for paying the landlord for losses she may suffer as a result of your leaving early or her having to evict you. This may include the cost of getting the apartment in shape for leasing it to someone else, loss of rent for the time of your lease period the apartment remained vacant, and loss of rent if the new tenant is paying less than you were. A landlord must, however, make reasonable efforts to find a new tenant and to keep her losses down.
Loss or Damage Clause
This is a clause that says you agree to pay back, or "indemnify," the landlord if you are responsible for an accident in the building that causes you, a household member, or a guest to be hurt or your property to be damaged. This clause does not require you to pay the landlord if an injury or property damage occurs because of your landlord's negligence or misconduct. It also does not stop you from being able to your landlord for injuries or damage to your property caused by an accident in your building. It is worth consulting a lawyer if anything of this nature happens.
Notice Clause
This is a clause that says when and how you and your landlord must send each other notices or information. For example, the landlord must give you notice in order to end or terminate a tenancy. Sometimes, leases require that notices be sent in writing in one of two ways: (1) by certified or registered mail , or (2) by hand delivery. The landlord must print an address on the lease to which the tenant is to send notices. The landlord must also accept any notice delivered to that address.
Pet Clause
This is a clause that prohibits pets or requires the landlord's written permission before you can keep a pet. If a landlord tells you that you can keep your pet, make sure she crosses this clause out of the lease and that you both write your initials next to the clause. If you did not do this when you first moved in and you have a pet, you may be able to keep your pet if your landlord knows you have one and still accepts rent without stating that you must get rid of the pet or move.
If you have a pet and the landlord tries to evict you for violating the lease by having the pet, you may be able to defend against an eviction if you have a disability and your pet is helpful to you with that disability. If this is the case, your landlord may have a duty to provide you with a reasonable accommodation by letting you keep your pet. Write a letter to the landlord telling her that you need your pet because of your disability and ask for a reasonable accommodation . Attach to your letter a doctor's letter outlining the necessity of your having a particular kind of pet. For more about reasonable accommodation see Discrimination Based on Disability.
Repair Clause
This is a clause that says you agree to keep the premises in good repair, "reasonable wear and tear accepted." Remember, however, that the law requires your landlord to maintain and repair your apartment in safe and sanitary condition. You are required only to repair damages caused by you, a household member, or a guest. For more information about repairs, see Chapter 8: Getting Repairs Made.
Redelivery Clause
This is a clause that says that at the end of your lease term you must leave your apartment in good, clean, and rentable condition, reasonable wear and tear excepted. If it is not, the landlord may deduct the cost of repairing the damage from your security deposit and may be entitled to sue you for any remaining amount of money that it cost her to put the apartment back into the required condition if the security deposit is not enough to cover the damage.
Right of Entry Clause
This is a clause that says your landlord can enter your apartment only under the following circumstances: (1) to inspect the apartment, (2) to make repairs, or (3) to show the apartment to a prospective purchaser, tenant, or mortgagee . Any part of your lease that states other reasons that your landlord can enter your apartment is illegal.
Subletting Clause
This is a clause that requires the landlord's written consent for subletting your apartment. To comply with this provision, if you sublet, make sure to get your landlord's permission in writing.
Tax Escalator Clause
This is a clause that says that if local property taxes go up, your landlord can increase your rent. Back when taxes were going up rapidly, these clauses were one way for landlords to raise the rent. If a tax escalator clause is not written in a certain form, it may be illegal and your landlord may not be able to raise your rent. For more information about tax escalator clauses and how you might save yourself some money, see Chapter 5: Rent.
Termination Clause
This is a clause that says how much notice a landlord must give you if she wants to evict you. A termination clause does not mean that the landlord can come into your apartment and physically throw you out. A landlord can never evict a tenant without a court's permission. Under the law, there are specific rules that landlords must follow in order to evict a tenant.
Illegal Lease Clauses
Below is a list of clauses that cannot legally be in your lease agreement.
- A clause that allows the landlord to use your security deposit for anything other than damage caused by the tenant or unpaid rent.
- A clause that attempts to make the tenant responsible for all repairs. Under MA law, the tenant is only responsible for the cost of repairs when they break something.
- A clause that requires the tenant to pay for utilities when those utilities are not separately metered.
- A clause through which the landlord attempts a "waiver of liability" (eliminating the landlord's liability for negligence that results in an injury to a tenant or guest).
- A clause in which the tenant waives their right to a jury trial (MA law gives the tenant a right to a jury trial in eviction cases).
- Also, if the landlord tries to evict you based on your violation of an illegal clause, you can raise that as a defense to the eviction. (940 C.M.R. § 3.17(3)(a)(1)).
The information in this article is from "Common Lease Clauses," created by Mass Legal Help. For more practical information about your legal rights in Massachusetts, including housing resources, visit Mass Legal Help.