Early Lease Termination Under G.L. c. 186, § 24: An Essential Escape Route for Tenants Who Are Facing Domestic Violence, Sexual Assault, or Stalking

lyonsby Julia Devanthéry

Legal Analysis

 

Survivors of sexual assault, domestic violence, or stalking often have to leave their homes and relocate to a safer place with little notice or planning in order to avoid harm by a perpetrator who knows where they live.  My client Olivia[i] (whose name and identifying information I have changed to protect her privacy) was raped by a college classmate. Olivia’s rapist was also her upstairs neighbor. After the incident she saw him coming and going from the building, in the elevator, and around other common areas. She was terrified of what he might do to her and ashamed every time she saw him. Olivia knew she had to get far away from the person who assaulted her as soon as possible. When she asked her property manager about moving out of her apartment, he very politely directed her to the paragraph of her lease that provided for a three-month rent penalty for early lease termination. Olivia could not pay three months’ rent in addition to moving costs for a new apartment.  Frustrated, scared, and confused, she hid from her rapist by locking herself into her apartment, missing school and work.  After several weeks, a local rape crisis center referred her to me. Fortunately, G.L. c. 186, § 24, “Termination of rental agreement or tenancy by victim of domestic violence, rape, sexual assault or stalking” (“Section 24”), was signed into law in 2013, after decades of law-reform efforts by survivors and housing advocates. Its purpose is to help tenants like Olivia leave their homes for safety reasons without incurring financial penalties. With our help, Olivia asserted those rights and moved out of her apartment in less than 24 hours.

Olivia’s case illustrates that because Section 24 is not well known or understood, survivors across the Commonwealth remain trapped in unsafe living situations and unable to break free from abuse for fear of financial liability. This article aims to familiarize the practitioner with the provisions of Section 24 so that its benefits may be more broadly utilized.

A Brief History of G.L. c. 186, § 24.

In recognition of the unique housing needs of survivors of domestic violence, sexual assault, and stalking, the Massachusetts Legislature passed a comprehensive statute aimed at decreasing homelessness among victims of violence and increasing their possibilities for escaping harm without financial repercussions, titled An Act Relative to Housing Rights for Victims of Domestic Violence, Rape, Sexual Assault and Stalking (“the Act”). The Act was patterned after the federal Violence Against Women Act (“VAWA”), 42 U.S.C. § 14043e-11, which also contains special housing protections for survivors. The Act established four new tenant protections for survivors of domestic violence, sexual assault, or stalking in the Commonwealth: the right to have locks changed at home, G.L. c. 186, § 26; the right to call upon law enforcement or the courts for protection against abuse without reprisal from a property owner, G.L. c. 239, § 2A; the right to terminate a lease early for safety reasons, G.L. c. 186, § 24; and a prohibition against discrimination based on a prospective tenant’s use of any of the lease-breaking or lock-change protections. G.L. c. 186, § 25. Section 24, the right to terminate a rental agreement early, mirrors a similar VAWA provision allowing early termination of Section 8 leases. See 24 C.F.R. 982.354(b)(4). Section 24 extends the right to flee an unsafe housing without penalties to all tenants in the Commonwealth, not just those who received federal housing subsidies.

After the Act became law, Lieutenant Governor Murray, who then chaired both the Governor’s Council to Address Sexual and Domestic Violence and the Interagency Council on Housing and Homelessness, summed up the intent of the legislation by saying, “[a]fter facing the emotional and physical trauma of abuse or assault, victims of sexual and domestic violence often struggle with ongoing concern for personal safety, housing instability or potential homelessness if they need to leave their residence. By partnering with the legislature and community based advocates, we are helping to improve the safety of victims in their own home and providing opportunities to improve their safety without further financial penalties.”[ii] Taken as a whole, and in light of the purpose expressed by lawmakers, it is clear that the law aims to protect survivors’ access to housing and to allow them as much flexibility as possible to decide whether relocating is their safest solution. The Legislature sent a firm message to tenants and landlords alike: survivors should not lose housing because of abuse, nor should they be trapped in unsafe housing by the financial obligations of a tenancy agreement if they must leave.

The Mechanics of G.L. c. 186, § 24.
Who Qualifies for Protection Under G.L. c. 186, § 24?

Pursuant to Section 24, a tenant may terminate a rental agreement or tenancy by giving written notice to the property owner that a member of the household has been a victim of domestic violence, rape, sexual assault, or stalking within the past three months, or that the tenant is in fear of imminent serious physical harm from such abuse. G.L. c. 186, § 24(a). Where the violence took place, the identity of the perpetrator, whether the perpetrator is part of the household, and whether the owner had any prior knowledge of the abuse are all irrelevant to the question of whether a tenant is eligible for early lease termination under Section 24 (nevertheless these are all issues landlords have raised with me in seeking to avoid complying with the law). The only threshold eligibility criteria are: (1) that the tenant or household member has experienced domestic or sexual abuse in the past three months, or is in imminent fear of serious physical harm, (2) that the tenant requests termination of the tenancy to the owner in writing, and (3) that the tenant vacates the unit within three months of giving the early termination notice.  G.L. c. 186, § 24(b).[iii]

The landlord may, but is not required to, ask for proof of the domestic violence, sexual assault, or stalking. G.L. c. 186, § 24(e). The statute provides three possible ways for a tenant to prove she is a victim eligible for early lease termination.  She can provide the owner with (1) a copy of a G.L. c. 209A or G.L. c. 258E protection order, (2) a record from a court or law enforcement agency documenting an act of domestic violence, rape, sexual assault, or stalking, stating the name of the perpetrator if known, or (3) a written verification by a qualified third party to whom the victim reported violence. G.L. c. 186, § 24(e)(1)-(3). Under the third method for verification, a qualified third party can be a police officer or law enforcement professional, a medical care provider, an employee of the Department of Children and Families or of the Department of Transitional Assistance, a licensed social worker, a licensed mental health professional, a sexual assault counselor, or a domestic violence victims’ counselor. G.L. c. 186, § 23(iii). The letter must be verified by the victim in a statement signed under the pains and penalties of perjury. G.L. c. 186, § 24(e)(3). Counsel for tenants should be attentive to issues of privacy and dignity when advising a client on which form of verification to provide, and given a choice between multiple methods, the one with the least detail is often preferable.

Once an owner obtains proof of the tenant’s status as a qualified victim he or she must keep such documentation confidential and may not share the content with any other person or agency unless the victim provides written authorization or unless required by a court or by government regulation. G.L. c. 186, § 24(f). Confidentiality is essential to victims, as the verification documents often contain private, embarrassing, or otherwise sensitive material. Owners cannot share this information with co-tenants or anyone else who may inquire about the reason for the early lease termination.

When Does Termination Occur?

If a tenant seeks early termination under Section 24, the tenancy terminates on the date that a tenant surrenders her interest in the premises, or the “quitting date”. G.L. c. 186, § 23. If the tenant has already vacated the unit, the quitting date is the date that she gave notice to the landlord of her intent to abandon the unit and not return. If a survivor left on the 1st of the month, but didn’t inform her landlord that she vacated until the 15th, the quitting date is the 15th. Id. If the tenant gives notice prior to vacating the unit, the quitting date is either (A) the date the tenant intends to vacate or (B) the actual date that she vacates after providing the notice. Id. If the tenant is still in the unit and informs the landlord of an intent to leave by the 1st day of the following month, but doesn’t turn over possession of the unit until the 15th, the quitting date is the 15th.

What Financial Obligations Exist Between the Parties?

Tenants are responsible for rent through the quitting date, but are not liable for rent after the quitting date. G.L. c. 186, § 24(c). This provision of the statute is drafted unartfully, and therefore it is the source of some misunderstanding among owners and their attorneys who routinely ask tenants to pay for the month after the quitting date before agreeing to release them from ongoing obligations under the rental agreement. This practice amounts to asking survivors to pay double rent in the same month (one month to the former owner and one to the next landlord at her new, safer apartment). Such a request is unaffordable for many and has the effect of trapping victims in unsafe apartments. Moreover, the practice of asking for a month’s early termination penalty is in direct contravention of the legislative purpose expressed by lawmakers involved in writing and sponsoring the bill. For example, Senator Jamie Eldridge, one of the co-sponsors of the legislation, issued a press release stating, “This bill will help those victims who face a financial and/or legal barrier to leaving their home and . . .  to vacate their lease or rental agreements without financial penalty.”[iv] Senator Cynthia Creem, another co-sponsor of the legislation, was quoted in the Governor Deval Patrick’s press release as saying that, “[t]his new law will provide important protections to victims of domestic violence, sexual abuse and stalking by giving them the ability to choose whether to stay in their residences or move without having to weigh their personal safety against financial considerations.[v] The statements of lawmakers involved in drafting and passing the statute repeatedly confirm that qualifying survivors should not suffer financial consequences for seeking protection under Section 24, and therefore owners should not seek rent from tenants for periods after the quitting date. Section 24 shifts the financial burden associated with an emergency relocation away from survivors and on to landlords, at least in terms of the cost of turning a vacated apartment over and re-renting it. This legislative choice likely reflects lawmakers’ conclusion that property owners are in a better position to absorb these costs than survivors of domestic violence or sexual assault.

After termination, owners are responsible for refunding the tenant any pre-paid rent, (including the last month’s rent) and the security deposit, if applicable, in compliance with G.L. c. 186, § 15B. G.L. c. 186, § 24(c).

Special Considerations with Regard to Co-Tenants.

Section 24 does not terminate the rental obligations of co-tenants who are not qualified to terminate their leases for safety reasons. G.L. c. 186, § 24(d). The practical implications for co-tenants is that while one tenant may be able to terminate the lease early and on very short notice, the remaining tenant continues to be bound by the terms of the tenancy with the owner. If the co-tenants were jointly and severally liable under the lease (which is very common), the remaining tenant continues to be liable for the entire monthly rent after the survivor vacates. On the other hand, if roommates had individual tenancy agreements with the landlord, the remaining roommate’s share would stay the same after the survivor vacated, and the landlord would receive less rent for the unit until a replacement tenant moves in. Given the incredibly low vacancy rates and high demand for rental housing in Massachusetts,[vi] owners working closely with remaining tenants should be able to identify a replacement co-tenant in a timely manner.

The Bar Can Give G.L. c. 186, § 24 Meaning by Raising Awareness and Respecting Its Precepts.

Section 24 has been law for over four years, yet there is a pervasive lack of awareness about the possibility of early termination, and an alarming level of misunderstanding among landlords and tenants alike about how the law works. Section 24 was enacted to allow maximum flexibility and minimal financial barriers to the most vulnerable tenants in the Commonwealth: those in the process of extricating themselves from abusive relationships and those who are fleeing homes with which their rapists or stalkers are familiar. Olivia, who is a rare example of a survivor who was able to access legal representation to terminate her lease early, now lives in a new apartment where she can focus on her studies and rebuild her life without the fear and trauma of living in the same building as her rapist. All qualifying survivors should be able to benefit from Section 24, not just those who can afford or find legal counsel. Increasing awareness and compliance with G.L. c. 186, § 24 will ensure that more victims have the opportunity to break free from abuse and claim the dignity of living in a home free from violence.

Julia Devanthéry is a Clinical Instructor at the WilmerHale Legal Services Center of Harvard Law School where she co-teaches and supervises students enrolled in the Housing Clinic and the Housing Justice for Survivors Project. Ms. Devanthéry received her juris doctor from Northeastern School of Law in 2009 and her B.A. in Sociology from Brown University in 2004.

[i] This article uses gendered pronouns to describe victims and survivors as “she.” This is in part to reflect the fact that all of my clients seeking the protection of G.L. c. 186, § 24 have been women, and also because there is ample research to support the assertion that most domestic violence and sexual assault cases involve female victims. See Molly Dragiewicza and Yvonne Lindgren, The Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis, 17 Am. U. J. Gender Soc. Pol’y & L. 229, 242-257 (2009).

[ii] Press Release, Governor Deval Patrick Press Office, Governor Patrick Signs Legislation to Provide Housing Rights and Protections for Victims of Sexual Assault and Domestic Violence (Jan. 3, 2013).

[iii] If the tenant fails to vacate within three months, the notice to terminate the tenancy is considered void.

[iv] Press Release, Team Eldridge, Housing Committee Advances Bill to Help Victims of Domestic Violence, Sexual Assault (March 26, 2012). (Emphasis added.)

[v] Press Release, Governor Deval Patrick Press Office, Governor Patrick Signs Legislation to Provide Housing Rights and Protections for Victims of Sexual Assault and Domestic Violence (Jan. 3, 2013). (Emphasis added).

[vi] For example, the vacancy rate for rental housing in Greater Boston is 3.4%, lower than at any time since 2001. The Greater Boston Housing Report Card 2016, The Trouble with Growth, How Unbalanced Economic Expansion Affects Housing, Prepared by The Kitty and Michael Dukakis Center for Urban and Regional Policy, Northeastern University for the Boston Foundation (2016).

Julia Devanthéry is a Clinical Instructor at the WilmerHale Legal Services Center of Harvard Law School where she co-teaches and supervises students enrolled in the Housing Clinic and the Housing Justice for Survivors Project. Ms. Devanthéry received her juris doctor from Northeastern School of Law in 2009 and her B.A. in Sociology from Brown University in 2004.

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