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Before withholding rent in Massachusetts, tenants should know what situations warrant the withholding and what type of notice must be given to the landlord.   Massachusetts G. L. c. 239, Section 8A, allows a tenant to withhold rent in such situations where request for repairs has been made in writing. The landlord must be given written notice of the tenant’s intent to withhold rent as a result of the landlord’s failure to make repairs.

Right to Withhold Rent

tenants may withhold rent if landlords don't make repairsAs a tenant, your landlord warrants that you live in habitable and safe housing. There are certain requirements that your landlord is responsible for such as a stove and oven, heat, hot water, plumbing in working order, and sometimes other utilities unless otherwise agreed upon in writing. Your landlord is also responsible for maintaining those utilities and appliances along with abiding by the state’s Sanitary Code, which has minimum standards set for all housing in Massachusetts. If your landlord violates the Sanitary Code, you can request a free inspection from your local Board of Health. If your safety or health is in jeopardy, you can request that an inspection be granted within 24 hours.

Massachusetts state law also requires your landlord to repair problems that may be affecting your habitability, health, or safety. As the tenant, you are required to provide written notice to your landlord and allow a reasonable amount of time for the issues to be fixed. Landlords are prohibited from retaliating against tenants for requesting repairs or reporting the conditions to a government agency.

Withholding Rent Notice Requirements

A valid rent withholding notice requires that:

  1. The tenants informed the landlord in writing of the requested repair;
  2. The tenants informed the landlord of the intent to withhold rent; and
  3. The written notice is delivered to the landlord before the tenant withholds rent.

The last required is a valid eviction defense if the landlord commences summary process against the tenants after they withhold rent and give written notice.

In cases where the landlord was not given written notice, tenants may still be able to claim their withholding as a defense because the landlord has had “Constructive Notice.” Constructive Notice is when a landlord knew or should have known of the bad conditions in the apartment, failed to make repairs, and commence summary process against the tenant as a result of the tenant’s refusal to pay rent.   In Boston Housing Authority. v. Hemingway, 379 Mass. 196 (1979), the Housing Authority commences an eviction action against the tenants for failure to pay rent. The residents argued that they were entitled to withhold rent because their apartment was in uninhabitable condition since the inception of the lease and the landlord had constructive notice of said condition.   In Hemingway the court decided that tenants can only withhold rent for the period of time that the landlord had notice of the bad conditions. The practicality of this decision is if you are going to withhold rent, its best to write the landlord and not rely on a verbal conversation.

Repair and Deduct

In cases where you have notified the landlord in writing of needed repairs and you haven’t received a reply in a timely manner, you may have the right to hire a repair person to fix the problem in the unit. In certain circumstances, you may have to purchase a part that needs replacing.

Pursuant to G.L. c. 111, § 127L, if you’ve paid for repairs or replacement parts on your own because your written request has been ignored, you can save the receipt and deduct the expense from your rent payment. You can deduct up to 4 months of rent.

Requirements of Repair and Deduct

  1. The court and or board of health certify that the needed repair or problem is endangering or impairing your safety, health, or well-being.
  1. You have notified your landlord in writing.
  1. If the landlord received written notice and has not begun repairs within five days.
  1. The violations were not caused by you, the tenant, or anyone in your control.
  1. Reasonable access to the unit was allowed to the landlord for the needed repairs, and the process of repair did not start.

The housing laws are applicable whether you have a lease or not. In essence, your landlord has to guarantee that your apartment is safe and habitable to reside in at all times. The owner will not be allowed to go around this rule with any clauses in your rental agreement or lease. This is why you are not responsible for taking care of repairs, only the landlord is. The landlord won’t be allowed to claim that the amount of rent is lower than usual due to the needed repairs as an excuse to not have the issues fixed.

If you need to take action to resolve problems that exist with your unit, take the first step and notify your landlord in writing. Clients of mine have requested this type of letter directly from my office, especially when no other written documentation of the problem exists. Your written notice does not have to come from you directly, but you will need it to be written if you are planning to withhold rent. It is also vital that you have an inspector complete a full State Sanitary Code inspection. They will then issue a report and serve it on the landlord.

If you apartment needs to be repaired and your landlord has not responded to your request, please get in contact today.

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Arthur Hardy-Doubleday

Author Arthur Hardy-Doubleday

Arthur Hardy-Doubleday practices law in Cambridge and Martha's Vineyard Massachusetts. He works in the areas of Real Estate, Personal Injury, and Consumer Protection Law. When not practicing law, Arthur enjoys sailing, hanging out with friends on the beach, and waking his dog "Ridiculous."

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