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We are first time landlords (of a single family house in…

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We are first time landlords...
We are first time landlords (of a single family house in Stockbridge, MA) and had a bad experience with our first tenants who have finally moved out. Looking ahead, we want to be better prepared before we rent it out again. We have read up on the MA state
laws concerning plowing/maintenance, etc. Apparently, the tenant can be made responsible for keeping walkways clear, but the landlord is responsible for the plowing. Assuming this is correct, we would like to know... 1.) Since the landlord is responsible for
plowing, if we hire a professional to keep the driveway open during the winter, can we pass along the bill to the tenant? I know we can raise the rent to account for this additional expense, but it seems like it would be cheaper just to bill them as needed,
if this is legal, of course. 2.) If the tenant wants to take care of the plowing in exchange for a reduction in rent, should we include this in the lease agreement or does it require a separate contract? I'm assuming that we would need to include what actions
we would take if it wasn't done adequately, etc. 3.) What about property maintenance (i.e., lawn mowing, trimming, raking, etc.)? Most of the potential tenants that we've talked to have said that they would prefer to take care of it themselves for a reduction
in rent versus having us do it as the weather and our time permits. If we let the tenants do this, do we need to include it in the lease agreement or does it require a separate contract? 4.) If we mention in the lease agreement that we are allowing a reduction
in rent in exchange for the services that the tenant wants to do (agrees to do), if they fail to do it adequately can we increase the rent and/or bill them if we need to hire someone to do it? Would we be better off stating who will be responsible for what
in the lease and state if it not done, then there will be an increase in rent? 5.) How does a tax escalator clause work? I remember having that as part of my rent many years ago and I recall getting a bill as the tax bill becomes available and this was in
addition to the actual rent. Since our property is a single family house on over 6 acres of land, I'm assuming we can pass along the tax bill to the tenant the same way, unless it has changed? Thanks for your help!
Submitted: 2 years ago.Category: Real Estate Law
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6/22/2015
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Law Educator, Esq.
Category: Real Estate Law
Satisfied Customers: 125,163
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under the MA Sanitary Code, property owners/landlords must keep all means of egress free from obstruction — that cannot be negotiated away. As for the removal of snow and ice, the Code provides that the landlord shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice. Again, those obligations cannot be negotiated away in a lease.
A landlord may require the tenant be responsible for snow and ice remove in a lease provision only where a dwelling has an independent means of egress, not shared with other occupants, and a written lease provides for same.
As far as charging the tenant for removal, as it is the landlord's non-delegable duty, you cannot charge for plowing, but you could adjust the rent accordingly when setting the rent to include the yearly plowing average costs into the rent without calling it specifically for plowing, which would be disallowed.
2) Because the landlord's duty is not negotiable, even if you agree to reduce rent to the tenant in exchange for the tenant plowing, you as landowner would ultimately be liable. You can agree to pay the tenant, by reduction of rent, for plowing and in your lease you can include a clause stating tenant agrees to plow in consideration for "$X" for each snow event requiring plowing. This is no different than you hiring a company to plow. This does not make the tenant liable to do so, but if they do it you are paying them by rent reduction.
3) If a tenant is agreeing to do yard maintenance and grass cutting, then it needs to be stated in the lease and you need to specifically state that there will be a reduction of $X per month in consideration for them performing those duties, but in any month they fail to perform them they will have to pay the full amount of rent due.
4) You would be better off stating that they agree to plow or mow and in the event they do not do so within 12 hour notice from the landlord, they will not be eligible for the $X reduction and have to pay the full rent as indicated in the lease.
5) MA law requires that tax escalator clauses be written in a certain form to be enforceable. In MA a tax escalator clause must contain three things:
1) A statement that you are obligated to pay only that portion of the increased property tax as your apartment bears to the whole property being taxed. For example, if you live in a three unit building and the units are all the same size, you would be obligated to pay only one third of the increase for the whole building.
2) The exact percentage of any tax increase that you are obligated to pay.
3) A statement that if your landlord gets a tax refund, or tax 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 refund after she has already paid her taxes, you would be entitled to a proportionate reduction in rent. Here is a sample lease with an escalator clause: https://www.formsforrealestate.com/pdf_files/SINGLE_FAMILY_DWELLING_LEASE_SAMPLE.PDF
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Customer reply replied 2 years ago
Your answer is exactly what I read online verbatim! Only thing is that according to Martha Coakley's "Guide to Landlord/Tenant Rights", she says that the lease will specify "...who is responsible for the snow shoveled from the walks in the winter..." also, "...is there is a fee involved, and if so, who pays for it?"... Am I missing something here?I stated that the house is a single family home situated on 6 acres of land (no one else uses or has access to the house or land/property), so it most certainly has an independent means of egress (not shared with other occupants, etc.). I'm confused because on one hand you say that, "...the landlord shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice. Again, those obligations cannot be negotiated away in a lease..." and on the other you admit that the tenant may be held responsible. Which is it in this case? I'm assuming that it is up to the tenant, since they are the only ones who live there/have access to the property.In all the homes and lots that I have rented, I (as the tenant) was responsible for the lawn/yard maintenance. There were even guidelines about how long the grass could be before the landlord would start taking actions against me! You are saying that is not legal? It is up to the landlord to maintain the property that the tenant's are using and renting? That just doesn't seem right. I know I didn't get a reduction in rent for those chores/responsibilities. Can you clarify for me?Thanks.
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Thank you for your reply.
The laws say that the snow removal (not talking about other yard work like grass cutting) is said in the MA law to be non-delegable, so that means you remain ultimately responsible if it is not done, even though you pay someone to do so. Thus, you can specify in a lease that you will pay (through rent reduction) $X per month for snow removal. If the tenant does not do it, they do not get the rent reduction and it becomes your responsibility ultimately.
As far as grass and yard maintenance, that you can make by lease the liability of the tenant as part of the lease.
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Customer reply replied 2 years ago
According to the document that I have by Martha Coakley, the plowing and keeping the driveway clear is the landlord's responsibility, but the tenants can be held responsible for clearing the walks/steps, etc. Your own words were, "A landlord may require the tenant be responsible for snow and ice remove in a lease provision only where a dwelling has an independent means of egress, not shared with other occupants, and a written lease provides for same." So, I don't think it is an issue to have the tenants keep the walkways free of ice and snow.We do have someone who plows for us. He has been very reliable and did a great job at keeping the driveway open last winter. He always informed us if there was a problem. The biggest problem he had was that the tenants would not move their car, so he could not plow around them. Are there any provisions or guidelines about how to deal with that type of situation? Can we put something in the lease to get them to comply by either putting their car in the garage or pulling up in front of the garage and out of the driveway when it is snowing or snowstorms are expected? Failure to do so will prevent the plow from being able to keep the driveway open. Any thoughts or ideas?Thanks!
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 years ago
Thank you for your reply.
I have already said what you just said above. What you quoted me back as me saying is saying the same thing you are reading from Coakley's office.
IF the tenant does not move his car, that is not your issue, you can ask them to move their car and you can put in the lease that they are liable for assisting and making reasonable effort to allow the driveway to be plowed when it snows. However, if they refuse to move the car, then that part of the driveway cannot get reasonably plowed and the tenant cannot hold you liable for something they caused by refusing to move their car.
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