MAR Legal Hotline Notes - September 2018
Tuesday, September 4, 2018
Posted by: Karen DeDonato
September Notes from the MAR Legal Hotline
Who is responsible for maintaining trees on the property line?
This is a question that has been the subject of litigation in Massachusetts for more than 150 years. It has long been the rule in Massachusetts that a landowner may not hold a neighbor liable for damage caused by the neighbor’s healthy trees. If branches or roots intrude on to a neighbor’s land, that individual has the right to cut off the intruding branches and roots in order to protect their own property; however, they may not remove any more of the tree than what is overhanging their property.
What happens if water runoff from a neighbor’s property causes damage?
Neighbors have been litigating damages caused by water runoff for decades. For decades, Massachusetts has followed what is known as the “Reasonable Use Doctrine.” A land owner is able to make a reasonable use of their land, even if such use changes the flow of surface water and causes harm to neighboring properties. A property owner will only be liable for damages when their interference with the surface water flow is unreasonable. Reasonableness is a question of fact, based on consideration of many relevant factors.
A tenant has offered to pay a full year’s worth of rent at the time the lease is signed – is this legal?
No, pre-paid rent is a violation of MGL Chapter 186, Section 15B. The statute states that a lessor may not require a tenant to pay any amount in excess of the following:
1. First month’s rent
2. Last month’s rent at the same rate as first month’s rent
3. Security deposit equal to first month’s rent
4. The cost to change the lock and key.
The question hinges on the word “require.” If the tenant offers to pre-pay rent, the landlord is not requiring the tenant to pay any sums in excess of what is statutorily permitted. However, you must look at why the prospective tenant is making such an offer. Generally, the reason is that the tenant would not otherwise be accepted as an applicant for the unit. In this situation, although the landlord is not asking for the rent to be pre-paid, the end result is the same if the prospective tenant’s application would not be approved but for the offer of pre-paid rent.
To stay within the parameters of the law, Massachusetts landlords should never accept rent in advance, regardless of whether the tenant offers or the landlord demands it.
Source: Massachusetts Association of REALTORS® Legal Staff
Justin Davidson, MAR Legislative & Regulatory Counsel
Catherine Taylor, Staff Attorney
The information and services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service. The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at firstname.lastname@example.org.