March 28, 2012 Andrea McDonough

A while back I found myself in a very unfortunate legal situation. Although it cost me some money, the knowledge and experience I gathered because of it was priceless. If I can’t get the money back, the next best thing for me is to have the ability to educate others, so that they aren’t put into a similar compromising legal situation.

This article is lengthy, but for good reason. There is A LOT you need to know as a tenant. Throughout, I’m going to tell my own legal story, as well as outline some of the important legal jargon that you need to be aware of, so that you can know what your liabilities are. I want to stress that I am not a lawyer and if you do need legal advice, you should contact a legal professional. What I’m about to outline is more for preventive purposes, so that you can hopefully avoid the costs, stress and time lost that I incurred.

JOINT AND SEVERAL LIABILITY: The state of Massachusetts recognizes joint and several liability, meaning that both tenants are responsible for the entire contract. So if your roommate punches the wall, you are equally as responsible for that damage. If one tenant has no assets, for which to compensate the landlord, the landlord can attempt to collect the entire amount from the other tenant.

In my situation, my roommate’s checks bounced month after month. Our joint and several contract gave the landlord the right to seek legal compensation from either of us, indiscriminately. Therefore, the most logical thing for the landlord to do was to first go after the person that has been consistently paying on time. Unfortunately, I was that person.

You really want to make sure you know and trust your roommate, because you are responsible for all and everything they do. If your roommate does not pay his/her half of the rent, YOU ARE RESPONSIBLE FOR THIS DEBT. The law doesn’t look at “fairness” they look at the signed contractual agreement. If you signed to be an equally responsible party (AKA joint and Several), you have agreed to pay for all the damages and debt accrued under this contract, even if you did not directly create them.

AUTOMATIC ENROLLMENT CLAUSE: If the tenant does not give written notice of lease termination on the specified deadline determined by the landlord, this clause in the lease allows the landlord to “self-extend” the lease.

It’s very important to take note of this clause and to set a reminder to terminate the lease, or renew prior to the deadline. The landlord will send you a notice, but be preemptive and put it on your calendar. You cannot trust that someone is going to do their job correctly and although you can prove to the judge that they didn’t give proper notice, it would be much better for you to avoid court entirely.

If you do forget to put in your renewal/termination letter and you are responsible for the automatic enrollment, you need to check your lease, but most are on a Tenancy at Will bases. This means that you are only responsible for 30 to 60 more days. Do be sure to put in your termination IMMEDIATELY. Do not wait until the end of the 30 days. That way you can minimize the extra costs incurred.

In my case, the landlord asked for a written notice of lease termination 60-days prior to the end of the lease date. I was fully aware of this clause and because of my roommates struggling financial situation, I knew that I did not want to renew my lease for another year. My roommate, on the other hand, did not want to leave and refused to sign the notice to vacate (why would she? Considering she was living for free!). I, however, put in my Notice to Vacate (NTV), which simply stated:

“I, Andrea McDonough, will be vacating the premises on the end of the lease date, April 30th.”

I signed, dated and handed the letter into the management office, prior to the 60 days deadline.

Now this is where you will really understand why I stress that YOU NEED TO KNOW YOUR RIGHTS, because not all landlords are the same. Most landlords are good, but some will try to take advantage of your ignorance of the law. My landlord’s lawyer rejected my NTV, on the premises that I was joint and severally liable, therefore they claimed that both parties on the lease must sign the notice to vacate, or our lease would automatically enroll into a month-to-month contract. This is an inaccurate interpretation of Joint and Several.

In my lease the Joint and Several clause thoroughly stated that

“Any notice from one party, including notices to vacate, is considered notices from all parties”.

This is why it’s so important to read your lease! Now, either the lawyer’s didn’t read their own lease, or they were hoping that I wouldn’t read the lease, because the writing is extremely clear: the action of one is the action of both, not the inaction of one is the action of both. That doesn’t make any sense. The lawyers were instructed to keep me in the lease and that’s what they were trying to do. Can’t hold it against them for doing their job.

I knew this logic would never hold up in court. So, to be doubly sure, I sent another copy of the NTV via certified mail and also emailed the management and legal council a scanned copy. It’s very important to have a thorough paper trail, because if they did attempt to come back with this in court, I could prove that I gave ample notice on several occasions, in several forms, prior to the 60-day deadline.

I thought I was completely out of the weeds, considering I paid my 12 months worth of rent in full. So, I packed my bags and I was out of there!

Unfortunately the fun was just starting. After ending my lease on April 3oth, I received a letter from a creditor, in August, claiming I owed my landlord over $3,000. There was no specification of what the money was owed for, or why I wasn’t made aware of these charges prior to a creditor letter.

These letters tend to be very intimidating and threaten to bring your debt to the credit bureau, which can completely ruin your credit history. This is the exact reason why most landlords go straight to a creditor.

Typically they know that whatever they are claiming won’t hold up in court and that the letters scare people so much, they end up paying the debt. It’s a win/win for the landlord. They avoid hefty lawyers fees and get paid in full (minus the creditors cut). This is again, where you need to KNOW YOUR RIGHTS under the Consumer Protection Acts (CPA).

HANDLING A CREDITOR: In my situation, in order to refute the claim and immobilize creditor from going to the credit bureau, I needed to respond in writing within 30 days from receiving the letter. You can view my letter by click on CREDITOR LETTER. Again, I would advise you get the assistance of a lawyer. This is only for reference.

Fortunately, the creditor dropped the claim immediately. My credit wasn’t touched and they stopped calling and sending letters. Creditors have very limited powers when collecting money. As the consumer, you have the upper hand, so if you do find yourself in a situation with a creditor calling you, immediately review your Consumer Protection rights and send a written letter within 30 days. The creditor only has 5 days to send a letter back with the information you’ve requested. If they do not, they legally cannot contact you ever again.

SECURITY DEPOSIT: Throughout this time, I still had not received my security deposit back. It was clear they were holding the security deposit hostage. Without written notice as to why and what the security deposit was being held for (which is illegal). At the 30-days post lease termination deadline, I put in my first Demand Letter, which is firm request to release the security funds.

It’s very important to review your security deposit rights, as Massachusetts law clearly defines how your security deposit should be handled and the paperwork required throughout the lease term and post lease term. I will not be getting into the details of this side of the law, but you can review the details and get sample demand letters at this link:


After 8 months of waiting on my security deposit and two demand letters requesting the release of my funds, I decided to take my landlord to court to retrieve it, as that is the only legal repercussion provided, in order to seek compensation.

I filed a lawsuit in small claims seeking damages for the unlawful withholding of my security deposit. You want to make sure you have the proper documentation (or providing evidence of the lack of documentation from the landlord) in order to prove your landlord was in violation of Chapter 93A of the Consumer Protection Act.

The day before the trial at 4pm, the landlord’s lawyers file a counterclaim and counter-suit against me with 40 pages worth of defenses against my security deposit claim and a counter claim seeking $3,000 as compensation. (This is what I get for going up against a team of lawyers!)

Now here’s the twist to the story. One that I had no idea was coming:

The landlord had claimed that my roommate had illegally been occupying the premises after the lease termination (April 30th), until July! He was seeking compensation for what is called a “holdover” of the premises for those two months.

THE HOLDOVER CLAUSE: If you review your lease you’ll see a clause that mentions “Failure to Vacate After Notice”, which essentially means, you’re lease is up, but you never moved out. That is considered a holdover and the landlord will hold you liable for the actual and consequential damages incurred during your extended stay.

In my case, my landlord’s counterclaim of a holdover was a clear contradiction of his initial argument. He was basically now agreeing that I was within my legal rights to terminate the lease unilaterally. Now that we agreed that the lease ended on April 30th, my roommate’s decision to remain on the premises an extra two months following put me in direct violation of a holdover. Unfortunately for me, this meant that I could be liable for the $3,000 incurred during her illegal stay.

I stayed up all night reviewing the law and understanding the procedure necessary to claim a Tenancy in Sufferance**.  During the holdover period, while the property is occupied as a tenancy in sufferance, the landlord can keep the meter running on the bill and sue you for it later.

But, it’s not that simple. There are specific procedures the landlord must follow in order to claim a tenancy in sufferance, versus the standard tenancy at will**. I again would like to reiterate that I am not a lawyer, but through my own suit, these are the counter defenses I used to protect myself.

DECIPHERING BETWEEN A TENANCY AT WILL VERSUS A TENANCY IN SUFFERANCE: This was a clever move on my landlord’s part, however, they forgot to tie up some lose ends. First, in order to claim a tenancy in sufferance, the landlord must immediately serve a Notice to Quit (NTQ). A NTQ is a formal letter written and signed by the landlord, giving the tenant notice of lease termination. In order for a holdover to take place, this must happen the day after the lease termination date. In my case, the landlord should have given this letter to my roommate on May 1st.

Instead, the landlord allowed my roommate to occupy the premises and they continued to accept payment. Unfortunately for the landlord, this didn’t work out so well (as he should have known from past grievances), because like usual, the checks started bouncing. After the first couple of checks bounced, they decided to give my roommate a notice to Evict.

Their of argument of a TIS didn’t add up for a couple of reasons:

1.) As a TAW, the landlord must give the tenant notice to evict, however, as a TIS the landlord does not need to give the tenant notice of eviction. The landlord can go to court and order an eviction hearing without the tenant’s prior notice. They claimed to give my roommate a 14-day notice of eviction, which indicates a TAW relationship.

2.) In order for a holdover to be substantive enough for legal compensation, they need to prove a Notice to quit was served immediately and signed by the tenant. Also, with any rent paid, the landlord must give the tenant a receipt that states “for use and occupancy only” which reserves their right to claim the tenant as a tenancy in sufferance. My landlord didn’t have proof of any receipts, nor any copies of checks with the “U&O” on it.

If the landlord accepts payment and cashes a check (even if the check bounces) and does not provide the “use and occupancy only” receipt, they have orally agreed on a new contract of Tenancy at will.

These two major items supported my claim that my landlord and former roommate verbally agreed that the prior lease was terminated on April 30th and a new lease was created between the two parties, as a tenancy at will.

Thankfully the courts resided in my favor. I got my security deposit back and I was not held liable for the months after April 30th. Although I was still held responsible for  the bounced checks prior to April 30th.  I was spared the thousands of other dollars that I could have been held liable for, had I not done my homework.

I would like to end my story with highlighting that I do not think my landlord was in the wrong for attempting to get the money that was owed to him. Landlords bare a huge financial risk, allowing people to stay in their property, in the hopes that their tenants pay the rent in the amount and on the date contractually agreed upon. It is not easy to be a landlord and when a tenant chooses to take advantage of their landlord, it’s not just and they deserve to seek legal compensation.

I hope my story was a helpful tool for you to protect yourself in the future. It’s imperative to know your rights and to take preventive measures. Pick good, responsible roommates. Make sure everyone on the lease has a strong financial background. Be smart and know your rights. You can find more information via this link:



** Tenancy In Sufferance (TIS)- is a legal term used for a tenant that does not leave after the agreed upon lease termination date. Under the eyes of Massachusetts’s law, the tenant is not trespassing, as the tenant and landlord once had a legally binding contract; therefore, the tenant still has legal rights within the property. The tenant can still enforce the states sanitary code and can sue their landlord for negligence.

** Tenancy At Will (TAW)- is a legally binding contract if (a) there is a oral agreement to rent. An oral agreement can consist of the landlord accepting your payments monthly, or (b) there is a signed, written contract between the two parties.














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Andrea McDonough

Andrea McDonough is a motivated and knowledgeable sales and leasing agent with a prior background in economics and commercial property investments. Andrea graduated from St. Lawrence University with a degree in Economics. Prior to joining the Bushari Group, she worked for C.B. Richard Ellis on the Capital Markets Team, where she focused her efforts on research, marketing and analysis. Andrea is training to run the Boston Marathon in 2009 and has run more than 40 races since 2001. She continues to increase her road biking mileage and plans to bike Central New York’s “Ride for Missing Children” in 2009. Andrea is also a “Big Sister” for the Big Sister’s of Massachusetts Bay and coach’s figure skating in her spare time.

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