Paying rent

Produced by Lauren D. Song
Last Updated May 2017

1. What If the Rent Is Late

As a tenant, you are obligated to pay only the rent you and your landlord have agreed upon. You must pay the rent in advance, on or before the date you and the landlord agreed rent is due. Often the agreed rent date is the first of the month.

If you are late paying the rent, a landlord may try to charge you a late fee or penalty. It is against the law for landlords to charge late fees in some cases. See below in Late Fees.9

A landlord may also try to evict you for repeated late payments or for non-payment of rent. Most landlords do not send eviction notices if once in a while tenants are several days late with the rent. Even if a landlord sends an eviction notice, you may be able to stop the eviction by paying the rent you owe. See below in Stopping an Eviction for Non-Payment or Late Payment.”

a. Late Fees

Your landlord cannot charge you interest or fees on late rent payments unless your lease or written rental agreement specifically gives the landlord the right to charge late fees in what is commonly called a “late payment penalty clause.” 10

If you have a written lease or tenancy-at-will agreement, check to see whether it has such a late payment penalty clause. If you do not have a written lease or rental agreement, or there is no late payment penalty clause, you do not have to pay a late fee, even if your rent is late.

Even if your written agreement has a late payment penalty clause, a landlord cannot collect any late payment fee until you are 30 days late with the rent.11 If the late payment penalty clause says that the landlord can collect a late fee before 30 days pass, the clause is illegal, and you should not pay a late fee. 12

b. “Discounts” for Paying on Time

If you have a lease , a landlord may try to collect a late fee through what is called a "discount clause." A discount clause says your agreed rent is a “discount rent” for when you pay rent on time, and you have to pay an extra amount if you are late. A discount clause is a late payment penalty clause in disguise, and it is illegal in Massachusetts.13 If your lease has a discount clause, you do not have to pay the extra amount, even if your rent payment is late. Pay only the rent you agreed to pay. If your landlord demands extra money based on a discount clause, tell your landlord (in writing) that the discount clause is illegal.

2. Disputes about the Amount of Rent

If your landlord incorrectly calculated your rent, did not credit you for rent you paid, or charged you fees or damages that are not your responsibility to pay, there are steps to take to try to protect yourself.

a. Payment and Acceptance

One way to resolve a dispute about rent is to pay your landlord what you think is owed with a check that includes the following statement on the back of the check:

"Endorsing or cashing this check constitutes full payment of rent due up to and including for the month of __, year __."

You may also include with your check a letter that explains why you do not owe the amount the landlord claims you owe.

In most cases, if your landlord cashes the check with this statement on the back without any objection, she has accepted your offer of full payment and agreed to give up ( waive ) any disagreement about the amount of rent due.14

If your landlord takes your rent check but also writes on it that she is not accepting it as full payment for all rent owed, you still may be able to argue that she had accepted the check as payment in full.15

b. Protect Yourself

If your landlord continues to dispute the amount of rent you owe after accepting and cashing your check with this statement written on the back, you should put the disputed amount in a bank account that is separate from your other money. By setting aside the money in dispute, you will be more credible to the judge if your landlord takes you to court.

Always protect yourself by keeping in a safe place a copy of:

  • The front and back of your check with your statement that you are paying the full amount of rent.
  • The cancelled check after the landlord cashes it, and
  • Any letter you send the landlord.

3. Stopping an Eviction for Non-Payment or Late Payment

a. Always Try to Cure

You have a right to stop your landlord from bringing an eviction by paying all the rent you owe by certain deadlines. This is called “ curing ” the non-payment. A landlord is required to accept the rent if you try to cure before the certain deadlines.16 Deadlines to cure are different for tenants with leases and with no leases.

b. You Have No Lease

If you do not have a lease and your landlord gives you a 14-day notice to quit for non-payment of rent, you have the right to stop your landlord from bringing an eviction by curing and paying all the rent you owe within 10 days of receiving the notice to quit .17 The only time that you do not have a right to cure is if you have already received another 14-day notice to quit for non-payment of rent within the previous 12 months. 18

If you do not have a lease , your 14-day notice to quit for non-payment must have the following sentence about your right to cure :

''If you have not received a notice to quit for nonpayment of rent within the last twelve months, you have a right to prevent termination of your tenancy by paying your landlord or your landlord's attorney or the person to whom you customarily pay your rent the full amount of rent due within ten days after your receipt of this notice.'' 19

If your 14-day notice to quit is missing this language, and your landlord files an eviction case, your deadline to cure is extended to the date your answer to the landlord’s court papers are due (“ answer date ”). In this situation, if you cure by the answer date , you can ask the court to have the eviction case dismissed. The answer date is on the Summons and Complaint served on you by you landlord. For more about the answer date, see Chapter 12: Evictions - Important Dates.

c. You Have a Lease

If you have a lease and your landlord gives you a 14-day notice to quit for non-payment of rent, you have the right to stop an eviction by curing and paying all the rent you owe on or before the answer date that is listed on the court papers (the Summons and Complaint ).20 If you cure by the answer date , you can ask the court to have the eviction case dismissed.

If you have a lease and cure before the expiration of your tenancy by the 14-day notice to quit , your landlord is not allowed to bring an eviction case against you at all, even if this is not the first time you have cured a non-payment within the previous 12 months.21

If you wait until after your landlord starts an eviction case to cure , you can still ask the court to have the eviction case dismissed, but it becomes more expensive. You must then pay not only the rent owed, but also the landlord's costs for filing the eviction case and interest on the rent owed.22

It is illegal for a lease to say that you have given up ( waived ) your right to cure . 23

d. Landlord Refuses Payment

If your landlord refuses to let you cure by accepting your payment, be sure to document the refusal. If you hand deliver your payment, have someone come with you who can witness whether the landlord refuses to accept it.

If your landlord refuses to accept payment, send her a letter that you offered to pay and the date and amount you tried to pay. Have your statement signed by a witness who knows of your attempt to cure.

Even if you miss the deadline to cure the non-payment, try to convince your landlord to accept your rent and stop any eviction action. Often, landlords agree not to go ahead with an eviction case because their real interest is in receiving the rent.

Important: If your landlord refuses to accept your rent, it is very important that you set aside all the rent that becomes due each month in a bank account that is separate from your other money. Having the rent set aside in a separate account will increase your credibility in court. It will also help you because if you pay what is owed the landlord within 10 days of any judgment against, you can keep your tenancy.

e. Eviction for Repeated Late Payment

If you pay rent late often, your landlord may try to evict you on the basis of repeated or chronic late payment, instead of non-payment of rent. Late payment of rent is not the same as non-payment of rent.24 For late payment of rent, a landlord cannot use a 14-day notice to quit but in most cases, must use a 30-day (or rental period ) notice to quit . However, if you have a lease , the lease may allow the landlord to send you a notice to quit that is shorter than 30 days for any reason other than non-payment of rent.25 Read your lease to figure this out.

f. Delay in Government Assistance Payment and Other Good Reasons

If the late payment or non-payment of rent is caused by a delay in your receipt of government assistance or rental payments and you are facing an eviction, you have the right to a 7-day continuance of an eviction action.26 Your landlord cannot proceed with the eviction case if you are able to pay all rent due with interest and costs of the court case within the continued court date.27

Also, if you or someone in your household has a disability, you may be entitled to a reasonable accommodation to prevent eviction. For example, if you do not receive your disability SSI income until the 3rd of the month, you should ask the landlord and the judge for a reasonable accommodation of a later due date for your rent. If you have a disability which interferes with your ability to make rent payments on time, you may ask for a reasonable accommodation for example, by arranging for representative payee to handle your rent payment.

If there are other good reasons for a late- or non-payment, you should explain the reasons to the landlord and the judge. Temporary financial hardships or other sympathetic circumstances may be persuasive to reach an agreement for a reasonable time to pay and to avoid eviction.

4. Paying Rent to a Condo Association

If you rent a condominium, you pay rent to the owner of the condo, who is your landlord. The owner is required to pay a monthly condo fee to the building's condo association. If the owner stops paying the monthly condo fee, or if she refuses to pay other condo charges called “assessments,” the condo association is authorized by law to ask you to pay your rent to the condo association instead of to your landlord, the condo owner.28 In no event, can the condo association collect from you more than your agreed upon rent.29

Before the condo association can collect rent from you, it must wait until your landlord's condo fee payments are at least 25 days late. It must then send a notice to the landlord explaining that it intends to collect the rent for her unit to pay the late condo fees. If the landlord does not respond to the condo association's notice within 10 days, or if she admits that she owes the association money, then the association is allowed to collect all or some of your rent each month until your rent has paid off the amount the landlord owes to the condo association. If the landlord responds to the condo association within 10 days, but denies that she owes the association any money, then the condo association cannot collect any rent from you.

If a condo association asks for your rent, you should ask the association to put the request in writing. You should also ask for copies of the notice the association sent to your landlord and any written response from your landlord to the association. Remember that in no event can the condo association ask you to pay more than your rent.

A landlord cannot retaliate against you, including trying to evict you, for paying rent to a condo association as allowed by law.30 To protect yourself, be sure to get receipts for any rent payments that you make to a condo association.

Endnotes

9 . G.L. c. 186, §15B(1)(c) ("No lease . . . shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due."); G.L. c. 93A, §2; 940 C.M.R. §3.17(3)(a)(3) and (6).

10 . G.L. c. 186, §15B(1)(c); G.L. c. 93A, §2; 940 C.M.R. §3.17(3)(a)(3) and (6).

11 . G.L. c. 186, §15B(1)(c); G.L. c. 93A, §2; 940 C.M.R. §3.17(6)(a).

12 . G.L. c. 186, §15B(1)(c); G.L. c. 93A; 940 C.M.R. §3.17(6)(a). Also, you cannot be charged a constable's or other fee for service of a notice to quit for rent that is less than 30 days late. Commonwealth v. Chatham Development Co. , Inc., 49 Mass. App. Ct. 525, 527 (2000) ($2,000 in civil penalties and $8,000 in attorney fees assessed under G.L. c. 93A for unlawful lease provision, including late fee charges for payments less than 30 days late); Copley Management v. Andersen , Boston Housing Court, 89-SP-52386 (Kerman, J., May 3, 1991).

13 . G.L. c. 186, §15B(1)(c) states that "[n]o lease . . . shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due." See Patriquin v. Atamian, Boston Housing Court , SP-19648-K (King, J., Aug. 27, 1981) (noting that such a discount clause "appears to be, in substance, a late fee charge which is prohibited by G.L. c. 186, §15B(1)(c) .").

14 . Whether a landlord accepts payment in full and waives (or reserves) her right to dispute the rent is a question of fact that depends on the circumstances of each case. Your landlord may attempt to reject your offer of payment in full: (a) by refusing to accept or cash your check or (b) by cashing the check but subject to a “reservation of rights” to continue to dispute the rent owed. Your landlord must notify you that she is reserving her rights to continue to dispute the rent owed before or at the time you make the rent payment. Whitehouse Rest., Inc. v. Hoffman , 320 Mass. 183, 186 (1946).

15 . To be effective, a reservation of rights must be communicated to you either before or at the time your check is accepted. If a landlord writes a reservation of rights on the back of your rent check but you could not know about this until after the check is cashed and the cancelled check is returned to you by the bank, the reservation may not be valid. For example compare Whitehouse Rest., Inc. , 320 Mass. at 186 (where a landlord merely endorses rent checks “received not for rent, but for use and occupancy, the reservation was ineffective because it could not be communicated “seasonably” in the course of banking business) with Ullian et al. v. Les Tuileries, Inc. , 361 Mass. 863 (1972) (acceptance of rent by landlord did not operate as waiver since landlord gave timely notice that they did not intend to waive their rights); see also Mastrullo v. Ryan , 328 Mass. 621, 624 (1952) (notwithstanding written reservation of rights on rent receipt, equivocal conduct by a landlord with respect to payment and reservation of rights created a triable issue on whether there was a waiver).

16 . G.L. c. 186, §§11 - 12

17 . G.L. c. 186, §12. However, your deadline to cure is extended to the date the Answer to the Summons and Complaint is due if the notice to terminate your tenancy at will does not contain the statutory right to cure language. G.L. c. 186, §12.

18 . G.L. c. 186, §12.

19 . G.L. c. 186, §12.

20 . G.L. c. 186, §11

21 . Compare language of G.L. c. 186, §11 (no limit on number of times tenant can cure a non-payment by the answer date if there is a lease) with G.L. c. 186, §12. (if a tenant at will, right to cure “within ten days after the receipt” of a 14-day notice to quit expressly limited to once in 12 month period). And according to the Uniform Summary Process Rule 2, you cannot be served with an eviction complaint until after the expiration of your tenancy by the 14-day notice to quit.

22 . G.L. c. 186, §11. Cf. Springfield Hous. Auth. v. Oldham-King , 12 Mass. App. Ct. 935 (1981) (tenant not obligated to pay cost of suit because lease language waived statutory entitlement to costs under G.L. c. 186, §11).

23 . G.L. c. 186, §15A.

24 . Woods v. Jeffrey , Boston Housing Court No. 14H84-SP-5265 (Muirhead, J., Jan. 15, 2015) (action dismissed where only notice to quit served on tenant was a 14-day notice to quit for nonpayment of rent but the complaint for eviction was brought based on chronic late payment).

25 . Massachusetts law requires a 14-day notice to terminate a tenancy for non-payment of rent whether the tenancy is under a lease or a tenancy at will (no lease). See G.L. c. 186, §§11 -12 . Massachusetts law also requires a 30-day (or rental period ) notice to terminate a tenancy at will for any reason other than non-payment of rent. See G.L. c. 186, §§12-13 There is, however, no state law that requires a 30-day notice to terminate a lease for any reason other than non-payment of rent. Typically, it is the lease that will say what type of notice of termination is required and what reasons other than nonpayment of rent, if any, are permissible grounds for terminating a lease before it expires.

26 . G.L. c. 186, §§11-12

27 . G.L. c. 186, §12.

28 . G.L. c. 183A, §6(c). (“…The organization shall have a continuing right to collect any rent otherwise payable by the tenant to such unit owner.... or otherwise to seek and obtain an order requiring the tenant in such unit or tenants in other units owned by the unit owner in the condominium to pay to the organization rent otherwise due to the unit owner”).

29 . G.L. c. 183A, §6(c).

30 . G.L. c. 183A, §6(c).

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