Elijah Botkin absolutely loves his apartment in the Fenway, but two weeks ago he did something few tenants in Boston’s extremely tight rental market would dare to do: He refused to pay a surprise charge sprung on him by the agent for his landlord.
The agent demanded $275 to renew Botkin’s lease with a new roommate. Not a lot of money, when you consider the apartment rents for $3,100 a month and the roommates have already paid another $6,200 in security and other deposits.
And it’s not a lot of money when you consider how expensive it would be if Botkin is forced to find a new place to live. The brokerage fee alone for a new apartment would probably exceed $3,000.
But Botkin did not hesitate to call the agent and bluntly tell him: “What you’re doing is illegal, and I’m not paying it.”
The agent told Botkin (surprise, surprise) to find another apartment and hung up. Both the agent and the landlord refused to talk to him anymore.
Botkin, 26, majored in math and music at Northeastern. And while he remains committed to building a career in music, he has never quite shaken off the legal bug that bit several years ago when he interned in a law office. Online legal research comes easily to him.
Botkin knows he’s really sticking his neck out. He’d love to stay in the apartment, because it’s so close to Northeastern, where he helps lead an 80-member choir as a part-time staff member, and even closer to Symphony Hall, where he lends his baritone to the highly polished Chorus Pro Musica.
“My friends just pay these extra housing charges, no questions asked,” Botkin said when I visited his cramped apartment. “But I can’t do that. I wish I could. It would make life a lot easier. But I can’t.”
Quixotic idealist? Righteous defender of the law? Someone about to learn one of life’s hard lessons?
I’ve read up on landlord-tenant law and called half a dozen lawyers. Everything I learned suggests Botkin is on sound legal ground.
Here’s a summation of the facts: Botkin and a couple he met in college hired Cornerstone Real Estate to find them an apartment. As the law mandates, Botkin and his roommates first signed a written agreement, specifying the brokerage fee as one month’s rent, payable to the broker upon the signing of a lease.
The St. Stephen Street apartment Botkin and his roommates eventually leased is owned by a couple in Connecticut. They gave the listing to Boston’s Preferred Properties, which opened it up to other brokers by putting it on a multiple listing service. After Cornerstone showed the apartment, Botkin and his roommates submitted references, employment histories, pay stubs, and other paperwork to Boston’s Preferred Properties, which acted as the landlord’s agent.
Cornerstone and Boston’s Preferred Properties split the brokerage fee, said Larry Fisch, Boston’s Preferred Properties owner. The one-year lease commenced in September. But Botkin’s roommates decided to move to Southern California when the lease ends on Aug. 31. To keep the apartment, Botkin found a roommate to replace them.
Boston’s Preferred Properties and the landlord appeared happy to have Botkin and a new roommate stay on. Botkin always paid his rent on time (by direct bank debit). And there were no complaints about noise or anything else. But on April 11, Botkin received an e-mail from Boston’s Preferred Properties demanding $275 in “application” and “rental” fees to check the new roommate’s references, credit, and employment history.
This was not a brokerage fee; Botkin already had his apartment. He had also found a replacement roommate on his own.
The law says landlords (and by extension their agents) are limited in what they can charge a tenant at the beginning of a lease: first month’s rent, last month’s rent, refundable security deposit, and the cost of a lock and key.
The City of Boston website tells prospective tenants to “know your rights.” It lists examples of items landlords can’t charge for, including an “application fee” and a “credit check fee.”
A handbook on tenants’ rights put out by the Massachusetts Law Reform Institute says the same thing. And a 2014 court ruling explicitly deems illegal a landlord’s attempt to impose any extra charges, whether labeled as “application,” “amenities,” or “community” fees.
Fisch told me he now realizes “application” fees are illegal, and he will no longer levy them. But he defended the “rental fee,” which he said he needs as compensation for checking references and running a credit check on Botkin’s new roommate and for facilitating renewal of the lease.
I asked how he would have been compensated if Botkin and his current roommates had stayed and simply wanted to renew the lease — little more than changing the dates from 2017-18 to 2018-19. He said the landlord would pay him $100 for that.
So why can’t the landlord also pay the nominal fee it will cost for a credit report on the new roommate, I asked.
“Landlords typically will not pay that,” he said.
Botkin filed a complaint with the attorney general’s office. He said he got a return call from one of its lawyers, who seemed to agree the application and rental fees demanded by Boston’s Preferred Properties conflicted with state law.
The danger is that Botkin may win on the law but lose the apartment, now that the landlord and agent have cut off all communication.
“I just hope I don’t get punished for this,” he said.
Sounds like he already has been.