Rent is the amount you agree to pay in exchange for your landlord’s promise to provide a safe and decent place for you to live.1 Whatever amount you and your landlord agree on is the rent for an apartment that is in good condition.2
The law defines what is safe and decent in the state codes, including the State Sanitary Code 3 . You and a landlord cannot bargain the Sanitary Code away.4 This means it is illegal for a landlord to say that your rent is already “discounted” or “below market” because of unsafe or unrepaired conditions in your apartment.5 Your landlord is legally responsible for keeping your apartment in good condition.6 This is true for all tenants. For more see Chapter 8: Getting Repairs Made - Your Right to a Decent Place to Live and the Housing Code Checklist (Booklet 2).
1. How Much Rent Can a Landlord Charge
Most landlords can demand whatever rent the private market will allow, not what you can afford.7 There is currently no legal limit to the amount of rent a landlord can charge in the private unsubsidized housing market in Massachusetts.8
In private subsidized housing, public housing, or in a mobile home park covered by a local rent control law, the rent a landlord can charge is controlled, and there are procedures for increasing the amount. For more about:
See the booklet Rent in Public Housing at www.MassLegalHelp.org/housing/tenants-rights-in-public-housing
See Housing Programs in Legal Tactics: Finding Public & Subsidized Housing at www.MassLegalHelp.org/housing/finding-housing-booklets
- Public Housing
- Subsidized Housing
- Mobile Homes
2. Keep Rent Receipts
It is important to keep a good record of your rent payments. If there is ever a problem and your landlord claims that you did not pay, you will need proof that you paid. Here is how to keep good records:
- Keep proof of all rent payments in a safe place. Save all rent receipts, cancelled checks, and copies of money orders with their stubs in a special folder or envelope.
- Get receipts for your rent payments. The receipt should state the month and year for which rent was paid. You can make your own receipt for your landlord to sign. For a sample receipt, see Rent Receipt (Form 2).
- Never give your landlord cash for rent, unless you can get a receipt. The receipt should show what month rent was paid. See Rent Receipt (Form 2).
- Pay your rent with a check or money order and write on the front of the check or money order the month for which rent is paid. Make a copy of the check or money order, including any receipt stub.
- For multiple tenants contributing to rent, each should have her own proof of rent paid. The best practice is for each tenant to pay her portion of the rent directly to the landlord and keep proof of her payment. If there is a dispute later about whether the landlord gave someone permission to be a tenant, each tenant will want proof that she paid rent, and that the landlord accepted her rent.
1 . In Massachusetts, your agreed-upon rent (“contract rent”) is the bargained-for value of your apartment in a safe and non-defective condition. This means that regardless of how much your rent is, your landlord is legally required to keep your residential rental property up to minimum standards of human habitation set by the State Sanitary Code. This is a strict legal requirement known as the implied warranty of habitability. See Darmetko v. Boston Housing Authority, 378 Mass. 758 (1979); McKenna v. Begin, 3 Mass. App. Ct. 168, 170 (1975) (“Recognition of the implied warranty of habitability obliges the landlord to furnish habitable premises regardless of the amount of rent charged…”).
In some situations, rent may be paid in a form other than money, such as payment of property taxes, utility bills, insurance, water and sewage. Ducker v. Ducker, 1997 Mass. App. Div. 147, 1997 WL 606741 (“The term ‘rent’ may include, however, any compensation or consideration paid by the tenant for use of the premises, whether or not the amount has been defined....”), citing Story v. Lyon Realty Corp., 308 Mass. 66, 70 (1941) (“Any consideration sufficient to support a contract is all that is required to constitute an agreement from which a tenancy may result.”). Compare Lavelle v. Lavelle, 2012 Mass. App. Div. 150, 151 (tenancy was gratuitous where no evidence of any consideration exchanged for use of premises).
2 . See McKenna, 3 Mass. App. Ct. at 170-71 (“as the Hemingway case suggests, the rent agreed upon is evidence of the value of the premises as habitable, and may not be taken by the judge as evidence of the value of the premises in a defective condition.”).
3 . There are four primary sources of law that give tenants in Massachusetts the right to residential housing in decent, sanitary, and safe conditions: (1) the state codes, including primarily, the State Sanitary Code, 105 C.M.R. §410.00 the State Building Code, 780 C.M.R. §§1.00-22.00; the State Environmental Code, 310 C.M.R. §11; the State Plumbing Code, 248 C.M.R. §2.00; the State Fuel Gas Code, 248 C.M.R. §§4.00-8.00; the State Electrical Code, 527 C.M.R. §12.00; and the State Regulations for Lead Poisoning Prevention and Control, 105 C.M.R. §460.000; (2) local health ordinances; (3) the warranty of habitability; and (4) the covenant of quiet enjoyment. For regulations that govern mobile home parks, motels, and recreational camps or cabins, see G.L. c. 140, §§32A-G. See Boston Housing Authority v. Hemingway, 363 Mass. 184, 200 n. 16 (1973) (“There may be instances where conditions not covered by the [State Sanitary] Code regulations render the apartment uninhabitable…. regardless of whether a sanitary code violation existed or not,” because “the protection afforded by the implied warranty of habitability does not necessarily coincide with the [State Sanitary] Code's requirements.”); Crowell v. McCaffrey, 377 Mass. 443, 451 (1979) (“We now find in the rental of a dwelling unit, … an implied agreement by the landlord that the rented unit complies with the minimum standards prescribed by building and sanitary codes and that he will do whatever those codes require for compliance during the term of the renting.”).
Further, it may be an unfair or deceptive practice for an owner to “rent a dwelling unit which, at the inception of the tenancy (1) contains a condition which amounts to a violation of law which may endanger or materially impair the health, safety or well-being of the occupant; or (2) is unfit for human habitation,” or to fail to disclose, misrepresent, or within a reasonable amount of time, repair the same. G.L. c. 93A, §2; 940 C.M.R. §3.17(1). See Wolfberg v. Hunter, 385 Mass. 390, 399-400 (1982) ("We hold … that, where tenants … prevail in a claim for damages under G.L. c. 93A, their damages under G.L. c. 93A shall be calculated by determining the rental value of the unit as warranted-the agreed rent-minus the value of the unit in a defective condition, plus any reasonable expenses incurred by the tenants as a result of the defective condition” and “[f]rom this figure, the total amount of rent withheld [if any] shall be subtracted to prevent an excessive recovery" rather than denying all recovery under G.L. c. 93A for those months during which rent was withheld).
4 . Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973) (“This warranty [of habitability] (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement”); G.L. c. 111, §127K (State Sanitary Code cannot be waived); G.L. c. 111, §127L (repair-and-deduct remedy cannot be waived); G.L. c. 186, §15 (landlord non-liability and hold-harmless lease agreements are void).
5 . Haddad v. Gonzalez, 410 Mass. 855, 872-873 (1991) (“A landlord cannot nullify the implied warranty of habitability on a dwelling by giving his tenant a discount in rent.”); Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973) (“This warranty [of habitability] (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement”); McKenna v. Begin, 3 Mass. App. Ct. 168 at 170-171 (1975); (“the implied warranty of habitability obliges the landlord to furnish habitable premises regardless of the amount of rent charged and he may not relieve himself of this obligation by accepting reduced rent for defective premises.”).
6 . Hemingway, 363 Mass. at 203 (“This warranty (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement.”); Berman & Sons v. Jefferson, 379 Mass. 196 (1979) (landlord is strictly liable under the doctrine of the implied warranty of habitability).
7 . However, when you move in, the most your landlord can charge in total is a first month’s rent, a last month’s rent, a security deposit (which cannot be more than the first month’s rent), and the cost of purchasing and installing a new lock. Last month’s rent is regulated by G.L. c. 186, §15B (1)(b)(ii), (2)(a) and (7A); security deposit is regulated by G.L. c. 186, §15B (1)(b)(iii), 3(a)-(b), and (4); and key and lock deposits are regulated by G.L. c. 186, §15B(1)(b)(iv).
8 . See Massachusetts Rent Control Prohibition Act, G.L. c. 40P, §4; Chapter 282 of the Acts of 1994 (approved January 4, 1995).