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Security Deposit and Landlord's Responsiblities

 

If a landlord takes a security deposit, the law says that she has certain obligations. These obligations include providing you with a written receipt, giving you a statement that describes the condition of your apartment, holding your money in a bank account that is separate from the landlord's money, paying you interest every year, and keeping records of deposits and repairs.

Providing Written Receipts

Never give a landlord cash without getting a written receipt.

If a landlord demands a security deposit or last month's rent payment, the law requires her to give you a written receipt when she takes your money.7 After the landlord deposits the security deposit in a bank, she must give you a second receipt that tells you the name and location of the bank and the account number.8 In addition, at the end of each year of your tenancy, the landlord must give you a statement telling you the amount of interest to which you are entitled on your security deposit and last month's rent payment.9

The information that must be included in each of these receipts or statements includes:

First Receipt
Security Deposit
Last Month's Rent

Amount of money received

Date money was received

Intended use of the money

Name of person receiving the money

Name of landlord (if different from person receiving the money)

Statement that you are owed interest on the money

Statement that you should give a forwarding address so when you move landlord can send you interest

 

 

Second receipt within 30 days after the security deposit is deposited
Security Deposit
Last Month's Rent

Location and name of bank where your money is

Account number of the fund where your money is

Statement at the end of each year
Security Deposit
Last Month's Rent

Statement of the amount of interest you are owed on your deposit

All your rights are based on being able to prove that you paid the landlord a security deposit and/or last month's rent payment. For this reason, the most important step you can take to protect your rights is to get a complete receipt at the time you give a landlord any deposit. No responsible landlord should object to giving you a receipt if she knows the law. And, if she does object, use Form 4: Security Deposit and Last Month’s Rent Receipt. Never give a landlord cash without getting a written receipt.

Statement of Condition

Within ten days of your giving a landlord a security deposit, the landlord must give you a document called a Statement of Condition. The purpose of a Statement of Condition is to prevent disputes between you and your landlord when you move out about what damage you may have caused and what damage existed when you moved in.

This statement, which must be signed by the landlord, must list all damage existing in your apartment and the common areas of the place you are renting at the time you move in. You then have an opportunity to add damages that exist that the landlord has not included in the list. This includes all Sanitary Code violations cited by the Board of Health or found by a court.10

Take the Statement of Condition Seriously

If the landlord gives you a Statement of Condition, you are required by law to return it to the landlord within 15 days of receiving it. Make sure that you keep a copy of whatever you send back to the landlord. You may either sign the Statement of Condition without making any changes or you may attach your own list of damages that you believe exist on the premises. Take this task seriously. Check over the apartment carefully before signing the statement, and consult Booklet 2: Housing Code Checklist. Add to your list even small defects, such as holes in the walls and windows that do not work well. If you sign the landlord's statement as is or you fail to send it back within 15 days of receiving it, this means that you agree that the landlord's list is correct and complete. If you send the landlord your own list of damages, the landlord must return a copy, with her signature, within 15 days, noting her agreement or disagreement with your list.

What If You Do Not Get a Statement of Condition

If your landlord fails to give you a Statement of Condition, it may not be worth your while to press for one immediately. Except for a possible $25 penalty, a landlord cannot be punished for failing to give a tenant a Statement of Condition.11 Also, a landlord, who knows the condition of the apartment better than you do when you first move in, may be unlikely to confess to serious code violations if she is aware of them.

If there are any serious problems with the apartment, it is in your interest to put the landlord on notice by filling out your own Statement of Condition and sending it to the landlord shortly after you move in. You can use Form 3: Statement of Condition. This is important not only to prevent the landlord from later using your security deposit to pay for damage that you did not cause, but also to put the landlord on notice of problems that exist in the apartment. Keep a copy of your Statement of Condition in a safe place. You may also want to take pictures of certain problems. Make sure you date your pictures by writing when you took them on the back of each one.

As soon as you become aware of new problems, send the landlord written notice of these problems. For example, if you move in during August, you might not find out that the heating system is broken until several months later. As soon as you notice a new defect, send the landlord a letter telling her about the problem and asking her to repair it. Keep a copy of this letter for yourself as proof that you properly notified the landlord.

Holding Funds in a Separate Bank Account

In the eyes of the law, the security deposit is your money unless and until the landlord has the right to use it.12 To prevent a landlord from using it for her own benefit, a landlord must place it in a Massachusetts bank account separate from her own money, in an "account protected from creditors." The name on the account must make it clear that the money does not belong to the landlord.13

If a landlord fails to put your money in a separate "account protected from creditors," you may be entitled to three times the amount of your deposit.14

Within 30 days of taking your deposit, the landlord must give you a written receipt with the name and location of the bank and the amount and account number where she has placed your money. If she fails to do this, you are entitled to have your security deposit returned.15 See the section in this chapter called Getting Back Your Security Deposit.

Payment of Interest

Because a security deposit is your money and because if you had it, it could be earning interest in a bank, you are entitled to earn interest on it. You are entitled to receive 5% interest per year, except that if the landlord's bank pays less than 5%, you are entitled only to the amount actually earned.16 Your landlord must pay you this amount at the end of each year of your tenancy and within 30 days after you finally move out.17

At the end of each year of your tenancy, the landlord should also send you a notice restating where the security deposit is, how much interest she owes you, and that you can deduct this interest from your next rent payment, unless the landlord pays you the interest directly.18 Usually, landlords do not provide tenants with this notice. If you do not receive the interest or a notice within 30 days after the anniversary date of your tenancy, you have the right to deduct the interest to which you are entitled from your next rent payment.19 When your tenancy terminates, your landlord must give you all of the interest she owes you within 30 days.20

How Much Interest Does Your Landlord Owe You

If you pay a $1,000 security deposit and a $1,000 last month's rent payment and the interest on the account is 2%, your landlord must pay you a total of $40 in interest for every year that you rent. If the landlord does not pay you directly, you may deduct this $40 from your rent payment. Here's how the math works.

1. If the Interest is 2% on Your Security Deposit and Last Month's Rent
$1,000 Security Deposit   $1,000 Last Month Rent
x .02 Interest   x .02 Interest
$20 = Amount owed   $20 = Amount Owed
2. Deduct Total Interest Owed from Your Rent
$1,000   Rent
- $ 40   Total interest owed tenant on security deposit and last month's rent payment
$960 = Amount of next rent check

Keeping Records of Deposits and Repairs

Any landlord who accepts a security deposit must keep a written record of all deposits she has received from current tenants and from former tenants for two years after their tenancies end.21 These records must include the following information:

  • A detailed description of what damage has been done in an apartment where the landlord took a security deposit;
  • When repairs were made; and
  • How much repairs cost (including receipts proving the cost).

A landlord must make these records available during normal business hours to any "tenant or prospective tenant" who asks to see them.22 If you pay a security deposit and the landlord then refuses to let you see the records, you are entitled to an immediate refund of the deposit.23

Endnotes

7 G.L. c. 186, §15B(2)(a) and (b).

8 G.L. c. 186, §15B(3)(a).

9 G.L. c. 186, §15B(3)(b) and (2)(a).

10 G.L. c. 186, §15B(2)(c).

11 940 C.M.R. §3.17(4)(e). Because the landlord's right to take a security deposit is conditioned on providing the Statement of Condition, G.L. c. 186, §15B (1)(b)(iii), you may demand the deposit back if the landlord does not comply. However, most tenants will choose as a tactical matter not to make this a bone of contention at the very beginning of a tenancy.

12 G.L. c. 186, §15B(1)(e).

13 G.L. c. 186, §15B(1)(e), (3)(a). Placing the money in an out-of-state bank does not conform to the statute. Taylor v. Burke,  69 Mass.  App. Ct .  77, 86 (2007). "[P]rovisions are designed to recognize the ownership of the deposit by the tenant and the landlord’s duty to hold the monies in trust." Id. at 84.

14 G.L. c. 186, §15B(7). The tenant is entitled to this treble damage remedy whenever the landlord fails to comply strictly with the terms of the statute. The penalty is not discretionary. The tenant does not need to prove that the landlord acted in bad faith or that the tenant lost money because of the landlord's actions. Mellor v. Berman, 390 Mass. 275, 283 (1983).

15 G.L. c. 186, §15B(3)(a).

16 G.L. c. 186, §15B(3)(b).

17 G.L. c. 186, §15B(3)(b). The statute leaves some question as to whether any interest is payable if you stay in the rental unit less than a year.

18 G.L. c. 186, §15B(3)(b).

19 G.L. c. 186, §15B(3)(b).

20 G.L. c. 186, §15B(3)(b).

21 G.L. c. 186, §15B(2)(d).

22 G.L. c. 186, §15B(2)(d).

23 G.L. c. 186, §15B(2)(d).


Produced by Maureen McDonagh
Last updated December 2013


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