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Illegal Retaliatory Rent Increases

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Legal Tactics
By
Lauren D. Song
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In Massachusetts, it is illegal for a landlord to increase your rent in retaliation for exercising your right as a tenant to:

  • Report violations of the state Sanitary Code or other housing laws, whether to the landlord, anyone who works for the landlord, or a housing inspector;
  • Attend, join or organize a tenants’ group;
  • File a lawsuit against your landlord or defend yourself in an eviction case;
  • File a discrimination complaint against your landlord with a government agency; or
  • Pay some of your rent to a local utility company after your landlord stopped paying utility bills that were the landlord’s responsibility.33

If your landlord increases your rent within 6 months of you taking any of the actions listed above, the law “presumes” that your landlord is retaliating against you.

If you believe that your landlord is raising your rent in retaliation for any of these actions, you can refuse to pay the increase. If the landlord tries to evict you for non-payment of rent, she must prove that she was not retaliating against you.34 If a court finds that she was retaliating, you will be allowed to stay in your apartment and a court can award you up to 3 months’ rent (or your actual damages, whichever is more), plus the cost of your attorney’s fees.

If more than 6 months passed before your landlord increased your rent, you still have the opportunity to prove that the landlord’s act was retaliatory , but the burden would be on you to prove retaliation . For more information about retaliation, see Chapter 12: Evictions and Chapter 13: When to Take Your Landlord to Court.

Document Why the Rent Increase Is Illegal

If you believe that your landlord has illegally raised your rent, and you want to stay in your apartment, the best thing to do is to collect all proof that will help show that the increase is illegal. For example, if you feel that the landlord has retaliated against you for reporting or complaining about bad conditions, make sure to get a certified copy of all housing inspection reports, each signed by the inspector who performed the inspection. Also keep copies of any letters, emails or texts that you sent the landlord about the conditions. With such documents and information, you will be better prepared to protect yourself if your landlord takes you to court.

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New owners

You do not automatically have to pay a rent increase or move out just because your building has a new owner.35 In most situations, whether you are a month-to-month tenant at will or you have a lease , the new owner has to “step into the shoes” of the old landlord. This means your new landlord has to accept your current rent until your lease or tenancy agreement ends.

If you are a tenant at will, the new owner has to give you a valid notice of a rent increase and you have to accept that increase. If you reject a valid notice of rent increase, the new landlord’s option is to terminate your tenancy and bring an eviction case against you, where you can raise legal defenses as well as claims that you may have against the landlord. For more on valid notices of rent increase and termination of tenancy, see Proper Notice of Rent Increase section below.

Whether you are a tenant at will or tenant with a lease, the new landlord becomes responsible for your last month’s rent and the security deposit you paid to your former landlord.36 This is true even if it is your former landlord who failed to transfer your last month’s rent and/or security deposit to the new owner.

A new owner - especially a corporate investor - may have a strong financial incentive to clear out a building of all occupants in order to renovate and re-rent it at much higher rents, or to convert and sell the building as condominium units. In these situations, tenants have organized and negotiated agreements for fair rents. For more about these and other options see section below on Options If You Receive a Rent Increase Notice.

Condominium conversion

If you think that your landlord may be converting your building to condominiums (“condos”), or if you have received a notice that your apartment is being converted into a condo, you have important legal rights, including the right to stay and limits on how much your rent can increase.37

For example, whether you have a lease or not, it is illegal for your landlord or a subsequent owner of the condo to increase your rent above a certain amount. Under the law, a landlord or condo owner cannot increase your rent by more than 10% per year or above the increase in the Consumer Price Index the year before your landlord gave you notice of the condo conversion, whichever is less.38

Also, if you have a lease, your landlord cannot change your rent until the lease ends. The one time when a landlord can increase your rent is if your lease has what is called a “tax escalator clause.” This clause allows a rent increase during the lease if the property tax goes up.39 For more see section below on Tax Escalator Clause.

In some cases, a landlord may illegally attempt to get around the condo conversion tenant protections by demanding a very high rent increase before filing a master deed for the condo. But under the law, the owner has only to have an "intent to convert" in order for tenants to be protected against rent increases.40 For more about condos and tenant protections see Chapter 17: Condominium Control.

After foreclosure

If you think your rental unit may be foreclosed, you will want to become familiar with important legal rights that are different from other tenancy related rights. For example, if you have a Section 8 or other subsidy, you can stay in your unit and pay the same amount of rent after a foreclosure.41 To find out more about what to in terms of paying rent and what your rights and options are during each part of the foreclosure process, see Chapter 18: Tenants and Foreclosure.

tax-escalator
Tax escalator clause

If you have a lease, the only way that a landlord can raise your rent before the lease ends is through what is called a "tax escalator clause." A tax escalator clause in a lease allows your landlord to pass on to you any increase in your landlord's property taxes by increasing your rent before the lease term ends.42

If your landlord demands an extra payment from you under a tax escalator clause, you should: (1) read your lease to see whether the clause is legal, and (2) make sure the landlord is not overcharging you.

a. Is the Clause Legal

The law requires that tax escalator clauses be written in a certain way.43 If the tax escalator clause in your lease does not contain all three parts below, the clause is illegal, and your landlord cannot use an invalid tax escalator clause to increase your rent.44 Read the text of your lease carefully. The language of a tax escalator clause must contain the following three things:

  • A statement that you are obligated to pay only that exact percentage of any property tax increase that is assessed to your apartment.
  • The exact percentage of any property tax increase that is your obligation to pay. For example, if you live in a three unit building and the units are all the same size, you would be obligated to pay 1/3rd of the tax increase for the whole building.
  • A statement that if your landlord gets a property tax refund (“ abatement ”), you will receive a proportionate share of that reduction (less any lawyer's fees that the landlord paid in getting the reduction). For example, if the city sends your landlord a tax abatement , you would be entitled to a proportionate reduction in rent.45

b. Is the Landlord Overcharging You

Even if the tax escalator clause is legal, you need to make sure that your landlord is not overcharging you. Go to your local tax assessor's office and ask there whether taxes on the property you rent have gone up and also whether your landlord got a tax abatement . Abatements are reductions in taxes that property owners get after the tax assessor determines that the original tax assessment was too high.

If the taxes have gone up, you will need to find out by how much to figure out whether your landlord calculated your proportionate rent increase correctly. If your landlord has received a tax abatement , you will need to figure out how much the landlord owes you.

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Endnotes
Endnotes
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Endnotes

33 . G.L. c. 186, §18 G.L. c. 239, §2A.

34 . G.L. c. 186, §18; G.L. c. 239, §2A.

35 . In Massachusetts, a change in the ownership of a building does not automatically end the obligations that preexist the new owner, including the amount you agreed to pay as rent with your former landlord. G.L. c. 186, §13 (“A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof or by foreclosure.”). Moreover, a new owner cannot rely on a notice to quit issued by a prior owner of the property. Trask v. Wheeler, 89 Mass. 109, 111 (1863); Heritage Equity Limited Partnership v. Considine, Boston Housing Court No. 97-SP-03077 (Daher, C.J., November 19, 1997); Shah v. Shenett, Boston Housing Court No. 98-SP-03811 (Daher, C.J., February 4, 1999); see also MB Mgm’t Co., v. Berry, Boston Housing Court No. 06-SP-00295 (Winik, J., Mar. 7, 2007) (landlord may not rely on termination of tenancy by former owner unless former owner assigned rights under such termination to the landlord before title was transferred to the landlord).

36 . G.L. c. 186, §15B (1)(d)-(e), (5), 6(d) and (7A).

37 . Chapter 527 of the Acts of 1983 (approved November 30, 1983) as amended by Chapter 170 of the Acts of 1984, Sections 4-5 (approved July 9, 1984), Chapter 709 of the Acts of 1989 (approved January 12, 1990), and Chapter 520 of the Acts of 1990, Section 8 (approved January 2, 1991). See also annotations in G.L. c. 183A, §1.

38 . Chapter 527 of the Acts of 1983, Section 4(e) (approved Nov. 30, 1983), as amended by Chapter 709 of the Acts of 1989, Section 18 (approved January 12, 1990).

39 . Chapter 527 of the Acts of 1983, Section 4(e) (approved Nov. 30, 1983); G.L. c. 186, §15C.

40 . Chapter 709 of the Acts of 1989 (approved January 12, 1990) (amending Chapter 527 of the Acts of 1983, Section 3 (approved Nov. 30, 1983)) (formal condo notices not necessary so long as it could be shown through a variety of means that owner had an “intent to convert”). Many towns and cities also have city ordinances or municipal bylaws providing stronger tenant protections in condo conversions than the state-wide law. For example, Boston’s Condominium Conversion Ordinance provides that no person shall bring any eviction case for the purpose of a condominium or cooperative conversion except for “just cause,” and requires in any termination of tenancy notice certain disclosures detailing all of the significant rights of a tenant under the condominium conversion ordinance. See Ord. 1999 c. 8, §§2(a)(1) and 2(b), adopted under St. 1983, c. 527 as extended and amended by Ord. 2004 c. 12, Ord. 2009, c. 8, and Ord. 2014, c. 16.

41 . 12 U.S.C. §5201; G.L. c 186, §13A.

42 . In 1980, Massachusetts passed "Proposition 2½," which required towns and cities to limit the amount by which they could increase property taxes. G.L. c. 59, §21C, as amended by Chapter 580 of the Acts of 1980, Section 1 (approved December 4, 1980).

43 . G.L. c. 186, §15C.

44 . "Any provision of a lease in violation of the provisions of this section shall be deemed to be against public policy and void." G.L. c. 186, §15C.

45 . G.L. c. 186, §15C.

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