When a Notice to a Tenant Is Presumed a Reprisal

There’s a timing rule buried in the landlord and tenant chapter that a lot of small-building owners have never read. A notice that lands soon after a tenant’s complaint is presumed to be a reprisal.

What the section forbids

M.G.L. c. 186, § 18 reaches any person, or an agent of that person, who threatens to take or takes reprisals against a tenant of residential premises for a listed act. The list starts with the tenant commencing, proceeding with or obtaining relief in a judicial or administrative action whose purpose is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance that has as its objective the regulation of residential premises. It next covers a tenant exercising rights under M.G.L. c. 164, § 124D, which governs a gas or electric company’s shut-off of service to a tenant who benefits from the service but is not the customer of record. It continues with reporting a violation or a suspected violation of a health or building code, or of another municipal by-law or ordinance or state or federal law, to the board of health or, in the city of Boston, to the commissioner of housing inspection or any other board with that same objective. It covers reporting or complaining of the same violation in writing to the landlord or the landlord’s agent. It covers organizing or joining a tenants’ union or similar organization, and expressing an intention to pay rent to an organization of unit owners under the condominium statute.

The six-month presumption

Receipt of a notice of termination of tenancy, except one for nonpayment of rent, or of an increase in rent, or of any substantial alteration in the terms of the tenancy, within six months after the tenant did any of those things, creates a rebuttable presumption that the notice is a reprisal. The window also opens when any other person has taken such action on the tenant’s behalf, or in or relating to the building in which the tenant resides, so a neighbor’s complaint about the same building can start the clock.

How a landlord rebuts it

The bar here is high. The presumption is rebutted only by clear and convincing evidence that the action was not a reprisal, that the person had sufficient independent justification for taking it, and that the action would in fact have been taken in the same manner and at the same time regardless of the tenant’s protected activity. That last part is where most rebuttals fall apart. Having a good reason on file doesn’t help much if the notice only went out after the complaint did.

What it costs

A person who violates the section is liable for damages of not less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, together with the costs of the suit including a reasonable attorney’s fee. The costs and the fee don’t come out of that rent range. They get added on top of it.

A waiver doesn’t help

The last sentence of the section says any waiver of the provision in a lease or other rental agreement is void and unenforceable. A clause in the lease that purports to give this up has no effect.

What an owner can actually do about it

A landlord can still raise a rent or end a tenancy under this section. The catch is what the file has to show if the tenant pushes back. If the reason for a rent change or a non-renewal existed before the complaint arrived, the file should show it in writing, dated, with the same treatment applied to comparable units. Keep one folder per unit with the repair receipts and the rent-change notes in it.

If you own rental property here

I work with owners of small buildings around Greater Boston who are deciding whether to hold, raise rents or sell. If you want a second read on how a building is set up before you make one of those calls, get in touch. I’m Diana Kim, REALTOR with eXp Realty, and I work in English and Korean. This is general information rather than legal advice, and a landlord and tenant matter belongs with an attorney.