Swimming pool fees, tennis court fees, so-called “amenity use fees” may not be collected by landlords at or prior to the commencement of a tenancy. Collection of such fees constitutes a violation of the Massachusetts Security Deposit Statute (Massachusetts General Laws, Chapter 186, Section 15B(1)(b) ) and the Massachusetts Consumer Protection Statute (Massachusetts General Laws, Chapter 93A). This was the decision by the United States District Court for the District of Massachusetts in the case Hermida v. Archstorne, (Civil Action No. 10-12083-WGY November 29, 2011).
In Hermida the tenants paid the landlord an amenity use fee in the amount of $475 together with the prorated balance of the first month’s rent and a prorated trash removal fee prior to taking occupancy of their apartment. No security deposit or last month’s rent was paid. The amenity use fee was for the use of the swimming pool, gym and outdoor grill. The Court concluded that Section 15B(1)(b) of the Security Deposit Statute prohibits the landlord from requiring a tenant or prospective tenant at the inception of the tenancy to pay any amount in excess of the four categories listed in the section. These categories are rent for the first full month of occupancy, rent for the last full month of occupancy, a security deposit equal to the first month’s rent and the purchase and installation cost for a key and lock. The Court determined that these four categories of payments are the only payments that may be collected at or prior to the commencement of a tenancy and an amenity use fee is not within one of the categories and is thus not permitted by the Security Deposit Statute.
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