Types of Tenancy

Many landlords will have some type of written lease ready for the tenant to sign upon moving in. However, the type of tenancy may vary. It is important that you understand exactly what type of tenancy you have and the rights that follow.

Tenants with a lease
Most leases are good for one year. A lease is only valid if it is signed and dated by both the tenant and landlord, and states the date on which the lease ends. When you sign a lease you are agreeing that the conditions within the lease cannot be changed until the date on which it expires. As stated above, it is very important that this is a mutual agreement between you and the landlord. Keep in mind, the time to make changes on a lease is before you sign.

Some leases are self-extending. This means that you or the landlord must give written notice when either one of you desire to terminate the tenancy as opposed to your tenancy terminating automatically on a specific date. If you stay under a self-extending lease, the original conditions of the lease stay intact. If you want to leave, make sure that you give the appropriate amount of notice to the landlord. The landlord may only terminate a lease term if the lease provides for it, such as where it is claimed the tenant owes rent or has engaged in misconduct.

Tenants at will
If you are living in an apartment without a written lease, and have the permission of the landlord, or if you have lived in a rooming house for more than three consecutive months, you are a "Tenant at Will." It is possible to be a tenant at will and have a written rental agreement; the agreement is different than a lease because it doesn't give you a certain time period that you are guaranteed for the apartment. This type of tenancy is also known as a "month-to-month" tenancy because either party can end the tenancy with a month's written notice.

Before you move in, you and the landlord will agree upon how much rent you will pay and which utilities you will be responsible for paying. As with a written yearly lease, you have the right to "lawful and exclusive possession" of your apartment. This means that the landlord cannot enter your apartment without your permission. (See landlord access.) Unlike tenants with leases, however, a landlord can terminate your tenancy with proper notice. Notice from either party needs to be given that ends on the last day of the rental period that begins after the date of the notice, and the notice must be given at least 30 days in advance of the effective date. This means that both landlords and tenants need to be careful in giving notices that end on the last day of February, since February has less than 30 days. In other words, if you are planning to move out on September 1st, you must give notice to the landlord before or on July 31st. If the landlord gives you written notice in the middle of the month (say July 5th), you still have one full rental period before the tenancy terminates (August 31st). If you rent by the week, notice must be received 30 days in advance, and it must also be effective at the end of a rental period (the date of the week that rent is due).

The only real advantage to a tenancy at will is that you can decide to leave your apartment with proper notice, without having to wait until the end of a lease.

Tenancy at sufferance
When your lease expires or the landlord ends your tenancy but you stay in the apartment, you are a "Tenant at Sufferance." Technically, under the law you do not have a tenancy. However, the law does not consider you to be trespassing because at some point in time the landlord agreed to rent you the apartment. You remain liable for the fair rental value of the apartment on a “per diem” basis until you vacate.

Landlords who receive rent from tenants in this situation must mark checks and receipts with the words "for use and occupancy only." If this is not done the acceptance of rent automatically creates a new tenancy at will.

Termination is not the same thing as eviction
Termination is the ending of a lease or a rental agreement and either the landlord or a tenant can terminate a tenancy. An eviction is the forced removal of a tenant from an apartment after termination, and can only be ordered by a judge. The landlord cannot evict a tenant without going through legal procedures. All efforts should be made to resolve disputes before resorting to such serious actions.

Rent increases
The amount of rent you pay for your apartment is a term of your tenancy. If you have a lease, the rental amount stated cannot be changed until the expiration of the contract. If you are a Tenant at Will, your landlord can raise your rent, but must end your tenancy and offer you a new tenancy at the new rent. This increase must be in writing and received by you at least 30 days in advance. You do not have to accept the new rent, as long as you continue to pay the old rent. The landlord can still bring an eviction case against you if you don't agree to the new rent level, but this would not be considered a nonpayment eviction, but would be “no fault.” If you want to stay in your apartment, you should try to negotiate with your landlord. Your landlord may be more willing to come to a mutual agreement with you on the rental amount, or to make needed repairs before she takes you to court. If you are able to come to an agreement with your landlord prior to court, make sure you get everything in writing.

Late payments
If you pay your rent after the required date, some landlords may try to charge a late fee or penalty. If you have a lease, it is vital that you read through it to see if there is a "late payment penalty" clause. This is only legal if it is written in your lease and requires you to pay extra after your rent is past 30 days late. If your lease does not have a penalty clause or your rent is less than 30 days late, then it is illegal to require you to pay a late fee. Some landlords try to disguise the late payment clause by writing in a "discount" clause. This is when a landlord leases you an apartment at a higher price, but when rent is paid within the first few days of the rental period, a "discount" is issued and a lesser amount is charged. This practice is illegal, and you should not pay the extra money. MGL ch. 186 sec. 15B (1)(c)