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Terminating Tenancy At Will

Terminating a Tenancy At Will—Not As Simple As It Seems

At first glance, it would seem that terminating a tenancy at will would be an easy task. However, navigating the requirements prescribed by Massachusetts General Law Chapter 186, Section 12 are often a trap for even the most experienced real estate professionals. As a result, it is not out of the ordinarily for a notice to terminate a tenant’s at will tenancy to be deemed ineffective. Before delving into how to terminate a tenancy at will under Massachusetts law, it is important to understand the basics: what a tenancy at will is, and how it is created.

...it is not out of the ordinarily for a notice to terminate a tenant’s at will tenancy to be deemed ineffective.

What is a Tenancy At Will?
A tenancy at will is the most common type of tenancy. It is often referred to as a “month-to-month tenancy” because landlords typically require tenants to pay rent once a month. The distinguishing characteristics of a tenancy at will is that it can be terminated at the will of either the landlord or the tenant.1 Indeed, for hundreds of years, the law has recognized that a tenancy at will exists “whenever one person, with the consent of the freehold tenant, occupie[s] land as tenant (not merely as servant or agent) under an express or implied agreement that the tenancy might be terminated at the will of either party.”2

How is a Tenancy At-Will Created?
A tenancy at will can be created out of an express or implied agreement between the landlord and tenant. As such, a tenancy at will most often arises under the following circumstances:

▪ An oral lease to rent for either a fixed or unspecified term;

▪ A written lease with no definite term –i.e., the lease does not specify the date the tenancy ends;

▪ A written lease for a “month-to-month” tenancy;

▪ A tenant holds over after the expiration of a lease and the landlord consents by continuing to accept rent;

▪ A landlord sends a valid notice to quit terminating a tenant’s tenancy but then allows tenant to stay without executing a new lease.

How is a Tenancy At Will Terminated?
A tenancy at will cannot be assigned, and it expires with the death of either the landlord or the tenant.4 There are also two main distinctions from common law. First, a tenancy at will occupied for dwelling purposes is not terminated by a landlord conveying or leasing the property.5 Second, to formally terminate at tenancy at will at common law, notice was not required and the landlord or tenant could terminate the tenancy at any time.6 However, Massachusetts enacted G.L. c. 186, § 12 instituted a notice requirement, the details of which are far-too-often overlooked.

Pursuant to G.L. c. 186, § 12, either party can terminate a tenancy at will; however, written notice, in accordance with the notice provision of the lease, must be given to the other party as follows:

(1) If rent is payable at periods of more than three months, three months’ notice must be given;

(2) If rent is payable at periods of less than three months, the time of notice must be equal to the interval between the days of payment or 30 days, whichever is longer;

(3) In the case of neglect or refusal to pay rent, on 14 days’ written notice.

A Trap For the Unwary
Terminating a tenancy at will is most common under the second circumstances –i.e., where rent is payable at periods of less than three months. In such a case, it is easy to overlook the language of the statute and fail to provide sufficient notice; or, for that matter, fail to understand how the statute has been interpreted.

For example, if rent is due on the first of every month, and the landlord (or the tenant) wishes to terminate the tenancy on May 31, 2019, notice provided on April 20, 2019 would be invalid because it would not constitute a full interval between the rent payment dates of May 1, 2019 and June 1, 2019, nor would it constitute a full 30 days. Furthermore, under Massachusetts law, a notice to terminate a tenancy at will “must fix the time for termination as a day upon which the rent is payable.7

In the hypothetical provided, since tenant’s rent payments are due and payable on the first day of each month, any notice terminating the tenancy at will must specify the first day of a month as the termination date. Accordingly, the April 20th letter, which purported to terminate the tenancy effective May 31, 2019, would be patently invalid.

Conclusion
Failing to follow the requirements of G.L. c. 186, § 12 can have frustrating consequences. If a landlord provides an invalid termination notice, a tenant’s tenancy will not be legally terminated. Therefore, the tenant can continue to occupy the premises lawfully against the rights of the landlord, and the landlord will not be entitled to recover possession of the premises under G.L. c. 239, § 1. Moreover, assuming a landlord prepared a summary process (eviction) summons and complaint on the basis of an invalid termination notice, the summons and complaint will also be invalid, and the landlord would have to start the process anew following the requirements of G.L. c. 186, § 12. Similarly, if a tenant fails to provide proper notice, they will be legally required to pay rent as due until they provide a proper termination notice in accordance with G.L. c. 186, § 12, and the termination date provided therein has passed.

Therefore, if anything has been gleaned from this article, is should be to follow the steps described above when attempting to terminate a tenancy at will.


1 Spence v. O'Brien, 15 Mass. App. Ct. 489, 496 (1983).
2 Stoebuck and Whitman, Law of Property, 3d ed. (2000), § 2.17.
3 Williams v. Seder, 306 Mass. 134, 136 (1940); Connors v. Wick, 317 Mass. 628, 630 (1945); Rubin v. Prescott, 362 Mass. 281, 284 (1972); Bruce v. Harvard Trust Co., 1 Mass. App. Ct. 373, 375 (1973).
4 Ferrigno v. O'Connell, 315 Mass. 536, 537 (1944).
5 M.G.L. c. 186, § 13
6 Kurtz, Moynihan's Introduction to the Law of Real Property, 6th ed. (2015), Ch. 3, § 2(C), p. 97.
7 U-Dryvit Auto Rental Co., Inc. v. Shaw, 319 Mass. 684, 685 (1946); Conors v. Wick, 317 Mass. 628, 630-31 (1945) (“. . . the time specified in the notice for the termination must be a rent day.”); see also Spence v. O’Brien, 15 Mass. App. Ct. 489, 490 n.3 (1983) (General Laws c. 186, § 12, has been construed to require, for a tenancy at will, notice to vacate which specifies termination on a rent day.”).

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Should you have any questions regarding this article, please do not hesitate to contact Michelle Rosin at 617-934-4577 or by email at mrosin@lawmtm.com.

Michelle Rosin