If your landlord does not make repairs after you have either notified her in writing or she has been ordered by the Board of Health to make repairs, you may need to consider other options:
Repair and Deduct
Break Your Lease
Go to Court
Once you inform yourself of the options, you may want to consult with a tenant advocacy organization or lawyer (see Directory).
1. Withhold Rent
One way to get your landlord to fix bad conditions is to withhold all or some of your rent until the landlord actually makes the repairs. This is called "rent withholding."44
Tenants have a right to withhold rent because landlords are obligated to provide safe and habitable housing under the warranty of habitability. If a landlord breaks this obligation, a tenant's obligation to pay the full amount of rent stops until repairs are made.45 A tenant may want to withhold all or part of the rent, depending on the seriousness of the violations.46 The law does not state how much or for how long you can withhold.
If you are considering withholding your rent, it is very important that you do it right. Before you begin to withhold, read the next sections in this chapter very carefully. Use the sample Rent Withholding Letter (Form 12).
If you are living in a hotel or motel or have lived in a rooming house for less than 3 consecutive months, you do not have the right to withhold your rent to get the landlord to make repairs. For more information about the rights of rooming house tenants, see Chapter 15: Rooming Houses.
a. When Can You Withhold Rent
Before you can withhold rent, you must meet certain requirements.47 If you can answer yes to all five of the questions below, you have met these requirements and can legally withhold your rent.
|Do defective conditions exist in your apartment?|||||
|Do these conditions "endanger or materially impair" the health, safety, or well-being of anyone living in the home? (See Housing Code Checklist (Booklet 2)).|||||
|Does the landlord know about the defective conditions (and know this before you were behind in your rent)?|||||
|Were the conditions caused by someone or something other than yourself or someone under your control (such as a guest or a member of the household)?|||||
|Can your landlord make repairs without you having to permanently move out?|||||
If you answer yes to all five questions, you can legally withhold your rent and your landlord cannot evict you—although she may try. If a landlord tries to evict you and you have properly withheld your rent, your landlord may be violating other laws. See Chapter 12: Evictions - Retaliatory Evictions.
b. Withholding Gives You the Power to Negotiate
Rent withholding is the most direct way that you can force your landlord to make repairs. More often than not, it is also the most successful tactic. It is particularly successful in a building where tenants agree to join together to withhold their rent. See Chapter 10: Getting Organized about how to organize a rent withholding campaign.
While you are withholding rent, you are in a better position to negotiate with the landlord about what you want. Some of the issues that you can negotiate include:
- The date when the landlord will start and complete repairs,
- How much rent you will pay (or withhold) while repairs are being completed, and
- How much of the withheld rent you will return (if any) once repairs are properly completed.
c. Protect Yourself When You Withhold
The right to withhold does not mean that you have a right to live in your apartment rent-free. Rent withholding is a way to get the landlord to make repairs. Once a landlord makes repairs, you must resume paying rent.
The best way to protect yourself while you are withholding rent is to take your rent money and set it aside in a bank account separate from any other bank account that you have. (Do not keep cash in your apartment.) Although the law does not require you to put your rent in a bank, there are several reasons why this is a good idea.
- First, if your landlord tries to evict you, you can show the court that you had the money to pay rent and you did not simply stop paying because you were unable to pay. Setting up a separate bank account will also strengthen your case and give you more credibility in the eyes of a judge if you take the landlord to court or the landlord attempts to evict you.
- Second, if a judge eventually orders you to pay some or all of the withheld rent to the landlord, you will have this money available. If you don't pay, you can be evicted. It is very unusual that a judge would find that the conditions are so bad that you would be entitled to withhold all (100%) of your rent, which is why it is so important to have that rent money set aside.
Legally, once your landlord makes repairs, you do not automatically have to give the landlord back any of the rent you have withheld. Only a judge can order you to do this. You may decide to keep some or all of the rent you withheld because of the impact these conditions had on your use of the apartment. If your landlord decides to take you to court to get back the withheld rent, explain to the judge how the conditions affected you and your family. Depending on the situation, a judge may decide you can keep part or all of the withheld rent.48 To try to avoid court and eviction, you can also negotiate with the landlord to try to agree on a fair sum to be given to the landlord for the period when you lived with the bad conditions.
d. Be Prepared for How Your Landlord May React
While you have a legal right to withhold rent, your landlord may try to evict you. The best way to protect yourself against eviction is to make sure you:
- Document the bad conditions,
- Meet all the requirements for withholding rent. For more information see When Can You Withhold Rent,
- Deposit your rent in a bank, and
- Use the sample Rent Withholding Letter (Form 12) to notify your landlord about the bad conditions.
A copy of a housing inspection report that accurately describes code violations is the best way to document violations of the state Sanitary Code. It is also proof that the landlord knew about the conditions.49 Again, if you have a camera or video camera (or can borrow one), take pictures of the bad conditions ideally with a date and time stamp. If you print out the pictures write the date and time they were taken on the back of the picture. A good picture will be worth a thousand words if you need to prove that bad conditions exist.
If a landlord wants to evict you, she must go to court and get permission from a judge. If a judge finds that you have followed all the requirements under the rent-withholding law, you will have a legal defense to the eviction.50 This means a judge should not give the landlord permission to evict you and you can stay in your home. You may also have a legal claim against her for money damages. See Chapter 12: Evictions for more about evictions and Chapter 13: When to Take Your Landlord to Court for more information about other legal claims.
A judge may also order you to pay an amount called the fair rental value to the court. The fair rental value is the value of your apartment with all its problems and code violations51 (see box following this section). If a judge orders you to pay money to the court, ask the judge also to order the landlord to fix all defective conditions. Ideally, you want the court to hold onto your rent money until a landlord has made repairs. Although a court can decide to give your landlord permission to use the money you pay to the court to make repairs, you can ask the judge to hold a hearing before returning this money to the landlord.52 This will give you a chance to tell the judge if the landlord has fixed any of the problems.
At the end of an eviction case, if a judge finds that, because of code violations, your landlord owes you the same amount as or more money than you owe her, you win the case and can stay in your apartment. If, on the other hand, the court finds that you owe the landlord money, you can stay in your apartment only if you pay the amount you owe to the court. (This is why it is important to set aside your rent money—so if a judge says you owe money, you can pay and stay.) You must pay this amount to the court within 7 days of receiving a notice from the court about the amount due.53 If you do not, you can be evicted. The court may also require you to pay certain court costs.54
Determining Fair Rental Value: An Example
Because your stove doesn't work, your toilet is broken, water leaks through the ceiling, and the landlord refuses to give you a smoke detector, you withhold all of your rent. Your rent is $900 per month.
Before you start to withhold, you notify your landlord in writing about all of these conditions and get a housing inspection report. You also put your rent money aside in the bank.
After 3 months of withholding rent(a total of $2,700), your landlord decides to try to evict you instead of making repairs. She files an eviction case in court based on nonpayment of rent. After hearing both sides of the case, a judge finds that you properly withheld your rent. The judge also finds that during the 3 months you withheld your rent, the fair rental value of your apartment with all of the code violations was $450 per month, as opposed to the $900 per month that you were being charged.
The court will then send you a notice saying you owe $1,350 for the 3 months you withheld rent plus court costs. If you pay this amount to the court within 7 days of receiving this notice, you can stay in your home. You also get to keep the other $1,350 you withheld.
If you do not pay the $1,350 plus court costs within the 7 days, the landlord is entitled to evict you. This is why it is so important to set the rent aside in a separate bank account.
2. Repair and Deduct
Under certain conditions, tenants in Massachusetts have the legal right to make repairs and deduct up to 4 months' rent to pay for them.55 This is referred to as "repair and deduct." The advantage of choosing to repair and deduct is that the repairs get done. The disadvantage is that you are taking responsibility for making sure that the repairs are done well. See the sample Repair and Deduct Letter (Form 13).
a. When Can You Repair and Deduct
To be able to deduct the cost of repairs from your rent, certain conditions must be met. If you can answer yes to all five questions below, you can repair and deduct.
|Are there violations that "endanger or materially impair" the health, safety, or well-being of a tenant that have been certified by a housing inspector or that a court finds exist?|||||
|Have you given the landlord or her agent written notice of the violations?|||||
|Did the landlord fail to substantially complete repairs within 14 days after this written notice, or within such shorter time if ordered by a housing inspector?|||||
|Were the conditions caused by someone or something other than yourself or someone under your control (such as a guest or a member of the household)?|||||
|Have you given your landlord access to your home to make repairs?|||||
b. What Can You Repair
You are allowed by law to repair anything in your apartment or in the common areas of your building. If there are violations that affect several apartments or an entire building, a group of tenants can get together and have the repairs made. Make sure, however, that everyone is in agreement, that you have a certified Board of Health report documenting the problems, and that you have given your landlord written notice of the violations. Each and every tenant can then deduct up to 4 months' rent for her share of the total.
For example, you and other tenants may get the boiler in your building fixed, and then all affected tenants can subsequently deduct up to 4 months of rent, depending on how much the repair cost.
c. How Much Can You Deduct
Under the law, you may deduct only a total of 4 months' rent in any 12-month period. You cannot store up months of withheld rent over several years and then deduct more than 4 months' rent in a single year. If you decide to repair and deduct, save all bills and receipts for materials and labor as proof of your costs. Remember: When you make the repair, you are taking responsibility for making sure it's done right. When you hire someone to do the repairs, ask what complications or risks there may be in doing the repair. It is also a good idea to get a reference for anyone you hire and a few estimates for the work so you can show the cost of the person you hire is reasonable
d. What If the Landlord Thinks You Deducted Too Much
If a landlord feels that you deducted too much for repairs, she is allowed to go to court to try and get back some of this money. The law does not, however, allow your landlord to evict you if the court believes that you have deducted too much rent.57 It is also illegal for landlords to raise your rent for repairs you legally made under the repair and deduct statute, unless there is a court order permitting a rent increase.58
If your landlord does take you to court to try to get back possible excess rent deductions, do not ignore the court notice. To show that the deductions were excessive, the landlord will have to show that the deductions were for more than 4 months' rent during a 12-month period, or were unreasonable given the circumstances. In deciding if deductions were unreasonable, a judge will look to see what alternatives the tenant had at the time the violations were first reported, how urgent the repairs were, and the quality and cost of the work done.59
Repairs for minor code violations, such as screens, small leaks, or small holes in the walls, will probably not be found reasonable by the court unless there are so many of them that you can prove that the overall effect is dangerous.60 This is difficult to do.
If other tenants in your building or community face bad conditions, there are ways to work together to improve everyone's living conditions. Tenants can all agree to withhold rent until the landlord makes repairs. A group of tenants can ask a judge to order the landlord to make repairs. If the landlord absolutely refuses to fix the bad conditions, tenants can ask a court to appoint a temporary landlord called a receiver in order to make repairs. For more see section in this chapter called Receivership. Tenants can also organize and together put pressure on the local Board of Health to inspect their apartments and enforce the state Sanitary Code and local health ordinances.
Chapter 10: Getting Organized gives you information about how to begin to organize tenants. It will also give you specific organizing steps you can take to get repairs made.
4. Break Your Lease
When there are very serious violations of the Sanitary Code in your apartment and you feel you must move, the law allows you to break your lease. If you do not have a lease, you can leave without giving the usual 30-day notice (or whatever notice may be required in your situation) to the landlord. You are allowed to break your lease or move out without giving the usual notice because the landlord has violated her obligation to provide a habitable apartment under the warranty of habitability.61
If you move out early, your landlord may try to sue you for moving early and for the balance of the rent due under any lease. For this reason, before you move out, it is wise to obtain a Board of Health report as proof of the violations in your apartment.
Keep in mind
If violations are not serious, you may be held responsible for paying the rent if you leave without proper notice.
When you move out because of serious violations, you are entitled to get back your security deposit. If you have to go to court to get your deposit back, you might have to prove that the conditions in your apartment were severe enough to permit your leaving. For more information about getting security deposits back and moving out, see Chapter 3: Security Deposits and Last Month's Rent and Chapter 11: Moving Out.
5. Go to Court
If your landlord refuses to make repairs, you can take her to court. The court has the power to do a number of things. A judge can:
- Order your landlord to make repairs,
- Order your landlord to pay you money for the harm that you have suffered,
- Appoint a receiver: a person or organization appointed by the court to manage and fix up the property (see section in this chapter called Receivership)62 ,
- Fine your landlord or put your landlord in jail for violating the law.
There are primarily four types of complaints that you can file with the court to demand that a landlord make repairs:
- Tenant Petition;
- Emergency Injunction, also called a Temporary Restraining Order;
- Criminal Complaint;
- Civil Complaint.
a. Tenant Petition
Tenants can ask a judge to order their landlord to repair conditions that violate the state Sanitary Code (or local health ordinance, if it is stricter). This is called a tenant petition.63 See the sample Tenant Petition for Enforcement of the State Sanitary Code (Form 14). When you file a tenant petition, a judge can:
- Order the landlord to make repairs, or
- Appoint a temporary landlord called a receiver to make repairs.
The benefits of bringing a tenant petition are that it may be a safe way for you to get repairs made without having to withhold rent and the court filing fee is low.64 If you withhold your rent, you may have to go to court to defend yourself against an eviction. If you file a tenant petition, you—not your landlord—are bringing the matter before a judge. A tenant petition also puts you in a better position to negotiate what you want with the landlord. For more about negotiating, see Chapter 14: Using the Court System - Negotiating a Good Settlement and Chapter 10: Getting Organized - Negotiating a Solution with the Landlord.
When you file a tenant petition, a judge also has the power to make certain other decisions. A judge may decide that until your landlord makes repairs, your rent should be lowered to the fair rental value of your apartment. The fair rental value is the value of your home with all of its problems. A judge can require you to pay this amount to the court clerk (in addition to any past rent you have withheld or owe) while the landlord makes repairs.65 Ideally, you want the court to hold onto this money until the landlord makes repairs, so that the landlord has some incentive to get them done. A judge can, however, release this money to your landlord for purposes of making repairs.66
A judge also has the power in a tenant petition to order the Board of Health to condemn a very dangerous building. This could lead to tenants' evictions.67 (For more about condemnations, see What If Your Building Is Condemned in this chapter.)
b. Emergency Injunction
If you want a judge to order your landlord to make emergency repairs, you can file a complaint and ask a court to issue an injunction.68 An injunction is an order from the court that tells your landlord to take immediate action to correct a problem or to stop doing something that is illegal. For example, a judge can order your landlord to immediately fix the heating system.
In most cases, tenants request an emergency order called a temporary restraining order or TRO when they first go to court and file the complaint. Because this is an emergency, you may request a TRO without first notifying the landlord. See a Temporary Restraining Order (Form 15).
Or try the MassAccess interactive interview, Complaint for a Temporary Restraining Order, that lets you complete, review, sign and send your request for a Temporary Restraining Order to the court from your smart phone or computer.
If a judge gives you a TRO, it is good for only a short period of time—the maximum is 10 days. If you need an order to last longer than 10 days, you must ask the court to schedule another hearing where you can request what is called a preliminary injunction. A preliminary injunction is an order that can cover a longer period of time. If you use Form 15, you can ask for a hearing for a preliminary injunction at the same time you ask for a TRO.
If you get a TRO from the judge, take a copy of it to a sheriff's or constable's office immediately. A sheriff or constable must serve it on your landlord. A TRO is not good unless your landlord has knowledge of it. If your landlord refuses to obey a TRO, you should go back to court and tell the judge. If a judge finds that your landlord has not obeyed the TRO, the landlord may be held in contempt and can be arrested and fined.
When you file the complaint to seek a TRO and preliminary injunction, you will also need to pay the filing and service fees. If you cannot afford these fees, you can ask the court to waive or eliminate the filing fee and to pay the service fee. To do this use the Affidavit of Indigency form (Booklet 9).
c. Criminal Complaint
If your landlord refuses to make repairs, you can file an application for criminal complaint (and pay the filing fee) or ask the Board of Health to file an application for a criminal complaint. You can do this at the same time you pursue other strategies. Because it can take several weeks for a court to schedule a hearing for a criminal complaint, this strategy does not usually produce a quick result. A criminal complaint can, however, result in a landlord having to pay a fine or spend time in jail. The advantages of a criminal action over a civil action are:
- It may put more pressure on the landlord to make repairs.
- If the Board of Health brings the criminal complaint, you may not have to go to court because the inspector can present all the necessary evidence.
The major disadvantage of a criminal action is that you lose control over the case. The Assistant District Attorney or the City's Attorney will prosecute the case. You or your lawyer do not control the day-to-day direction of the suit. Also, you must be willing and able to appear in court, sometimes on a week-to-week basis, if you are the person bringing the complaint. You may get quicker results if you file a civil complaint or a tenant petition.
There are two kinds of criminal cases that tenants can bring against landlords who fail to repair Sanitary Code violations. The first is where the landlord fails to comply with the Sanitary Code.69 You or the Board of Health may bring this kind of complaint.70 Fines for violations of the state Sanitary Code can range from $10 to $500 a day.71
The second type of case is where the landlord fails to provide heat, hot water, or other utilities or interferes with your quiet enjoyment. Only tenants who are affected by the landlord's illegal behavior can file this type of criminal complaint. To bring this type of complaint, you do not need a Board of Health inspection, although it is very helpful. In addition to fining your landlord, a judge can also sentence a landlord to serve up to 6 months in jail for violation of the law of quiet enjoyment.
d. Civil Complaint
If a landlord refuses to repair code violations, tenants can file a civil complaint or a small claims lawsuit. A small claims case is a civil lawsuit that involves no more than $7,000.72 In a civil complaint, you bring a lawsuit against your landlord for money for the harm that you have suffered or are suffering because of code violations; and you can also ask the judge to issue an injunction (see section called Emergency Injunction). You can also appoint a receiver (see section called Receivership). If you bring a civil lawsuit against your landlord because she has failed to make repairs, there are primarily six types of legal claims you can include:
- Breach of Warranty of Habitability,
- Breach of Quiet Enjoyment,
- Unfair and Deceptive Practices,
- Infliction of Emotional Distress,
Each of these legal claims is described in Chapter 13: When to Take Your Landlord to Court. As you read, you may discover that your landlord has violated other laws. Before you decide to bring a lawsuit against your landlord, you need to carefully evaluate the strength of your case.
44 . G.L. c. 239, §8A. Because this law has been amended many times, be sure you have the current version.
45 . Boston Housing Auth. v. Hemingway, 363 Mass. 184 (1973); Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979).
46 . See Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979).
51 . Darmetko v. Boston Housing Auth., 378 Mass. 758 (1979); McKenna v. Begin, 5 Mass. App. Ct. 304 (1977).
54 . The court costs are the filing fee ($135 in Housing Court and $195 in District Court); $5.00 for the summons; and the costs of service of the complaint (which varies but is generally about $30-$40 per defendant), so the total is around $170 - $240.
55 . G.L. c. 111, §127L is the basis for the entire repair and deduct section. See also 940 C.M.R. §3.17(1)(h).
56 . The part of the state Sanitary Code at 105 C.M.R. §410.750 sets out those conditions which are automatically considered to "endanger or materially impair the health or safety, and well-being" of the tenant.
60 . See McKenna v. Begin, 5 Mass. App. Ct. 304 (1977).
61 . Boston Housing Auth. v. Hemingway, 363 Mass. 184 (1973). Under the repair and deduct statute, G.L. c. 111, §127L (¶1, last sentence), tenants may break the tenancy or lease agreement, pay only the fair rental value, and vacate the premises in a reasonable period of time.
62 . The superior, housing, and district courts are explicitly given the power to appoint receivers under G.L. c. 111, §127I. Housing courts' jurisdiction is reaffirmed by G.L. c. 185C, §3. District courts have authority under G.L. c. 218, §19C.
64 . See endnote 79 as to the costs.
68 . G.L. c. 111, §127I explicitly gives the power to grant injunctions and temporary restraining orders to the superior courts, housing courts, and district courts. Housing courts also have the power under G.L. c. 185C, §3. District courts likewise have the power to grant injunctive relief necessary to enforce G.L. c. 111, §§127A-127K under G.L. c. 218, §19C.
69 . Commonwealth v. Haddad, 364 Mass. 795 (1974).
70 . Commonwealth v. Haddad, 364 Mass. 795 (1974), explains the legal basis for a citizen's complaint for code violations.
72 . G.L. c. 218, §21. You can, however, sue for treble damages in small claims court, even though the trebled amount may be more than $7,000. A small claims case is heard by a magistrate (and not a judge) and the plaintiff does not have the right to appeal if unhappy with the decision.
73 . G.L. c. 111, §§127B-127O sets forth the relevant provisions regarding receivership. See also Mass. R. Civ. P. Rule 66. For additional information on receiverships, see the Mass. Attorney General's Abandoned Housing Training Manual and "How to Take the Distress Out of Abandoned Housing (Mass. Continuing Legal Education, 1998).