When moving into an apartment or rental in Massachusetts, the landlord is limited to charging a First Month’s Rent, Last Month’s Rent, Security Deposit, and a one-time reasonable lock and key charge. That’s it and the Last and Security cannot exceed the monthly rent.
The Massachusetts Security Deposit Law is renowned for its triple-damages clause awarding three-times the security deposit to a tenant whose landlord failed to follow the law. The legislative history of the Security Deposit Law – its progression over time – reveals that the triple-damages clause of M.G.L. c.186 s.15B was a last resort for legislators in the Commonwealth to deter the common landlord behavior of inventing reasons to take the tenant’s deposits by sleight of hand or otherwise without right. Massachusetts landlords in large part know these laws exist and still violate them all over the place – often willingly then trying to cover it up and avoid paying after they are exposed. The prudent landlord does not take a security deposit and, instead, screens her/is tenants well before signing a lease agreement and then always retains the right to sue for damages or unpaid rent at the premises – regardless of whether a deposit has been taken.
Once given, the deposit remains the tenant’s property and the landlord becomes a “fiduciary” – like a bank – who must hold the tenant’s money in accordance with laws and regulations. A lot of landlords do not understand this. The tenant is entitled to annual compounding interest, at 5% if the landlord is not holding the deposit correctly, or the mere account interest if s/he is holding it in a separate interest bearing account in Massachusetts in the tenant’s name. This is why there is no triple damages clause for the Last Month’s Rent, as it is not still the tenant’s money in the same way as the deposit, but instead is money tendered to the landlord in advance payment for the last month of the tenancy and is the landlord’s, money once given, unless another law like c.93A applies that may result in triple damages, anyway.
In reality, there are only a few very specific instances where the tenant can get triple damages on a deposit. The main one that rears its head is where the landlord takes the deposit and does not give the tenant written notice within 30 days of the deposit account number and other information required by the law. In that case, if the tenant demands return of the deposit for failure to provide the account information, or because the landlord just took the money as their own, then if the tenant “resorts to litigation,” then the landlord will be liable for three-times the deposit plus costs and attorney’s fees. For example if the deposit was $1000.00 and the landlord did not handle it properly, then upon failure to return the entire deposit upon tenant written demand, the tenant would be awarded $3000.00 plus filing and service costs of maybe $190.00 and attorney’s fees anywhere from $750.00 to $3000.00 or more.
It is a very mechanical law like the speed limit: either the landlord violated it or did not. Comparatively writing, either the driver was speeding or was not.
Another way the landlord can violate M.G.L. c.186 s.15B is by failing to return the deposit within 30 days of the tenancy ending. The landlord must return the entire deposit within 30 days of the tenant fully vacating the property – or face treble damages. The tenant must have received the deposit within that time frame – merely sending it by that date is not enough. The landlord may retain all or part of the deposit if certain preconditions are met, such as including the proper statement of conditions wording required by the law, giving the proper notice, and handling the deposit correctly throughout the tenancy. This includes proper crediting of interest from the deposit (and last month’s rent) to the tenant on an annual basis or pro rated thereafter.
Only then could the landlord even begin the process of legally trying to deduct money from the tenant’s deposit for damages beyond reasonable wear and tear, unpaid rent, or water bills. The landlord, to deduct for damages, must include a written professional estimate of the damages, which again may not be comprised of reasonable wear and tear, and the legit deductions signed under the pains and penalties of perjury by the landlord. Any unused portion must be returned to the tenant with the deduction list and estimate, if any remains, within that 30 day period. Failure to comply will necessarily result in the landlord either 1) commingling the deposit or 2) holding it after 30 days from the vacate date and therefore triple damages will apply to any mishandling of the tenant’s deposit there The prudent landlord returns the deposit with interest on demand by tenant, rather than let his/her ego get in the way and risk triple damages plus attorney’s fees – I am surprised at how many landlords would rather pay triple damages instead.
Think your landlord violated the Security Deposit Law? Email me with a description of what happened, if your landlord has failed to follow the rules contained in the Massachusetts Security Deposit Law.. I have fund that landlords who violate the deposit law may also have violated other laws meant for the protection of tenants and consumers in Massachusetts. It never hurts to ask.
Please be advised I am not accepting any landlord cases at this time.
MJS