Evictions After Coronavirus

Next week, I’ll be a panelist on a webinar for the Massachusetts Bar Association concerning evictions after coronarvirus. This is a topic that promises to be extremely relevant once the pandemic ends.

What do landlords need to know about evictions after coronavirus?

New Requirements for Notices to Quit

As I have written before, the federal CARES Act has new requirements for notices to quit for non-payment of rent. This applies to only certain categories of landlords, but the reach of this law is large. Landlords need to check whether this law applies to them, and err on the side of caution if there is any question that it does.

Inevitable Delays With Court Proceedings

No doubt, evictions after coronarvius will take much longer to resolve than before. An eviction case in Massachusetts (referred to as a “summary process” action) is intended to be “just, speedy, and inexpensive.” The growing backlog of cases, unfortunately, will put a strain on the court’s resources. Landlords will need to keep this in mind when deciding to pursue an eviction.

Flexibility With Stays of Execution

When evictions after coronavirus resume, it is inevitable that many tenants will request stays of execution. A stay of execution is a request for a court to delay the time by which the landlord can assume possession of the rental property.

Although the law is written only for no-fault evictions, most judges take the position that a stay is permitted in any eviction, under the right circumstances.

Given the multitude of problems arising from the pandemic, I am inclined to think that most judges will be sympathetic to tenants facing eviction after coronavirus. Landlords need to keep this in mind when negotiating with tenants.

Final Thoughts

If you assistance with an landlord-tenant matter, contact me for a consultation.

Ending a Lease Early: What to Know

Ending a lease early is a matter that often arises when either the landlord and/or the tenant wishes to terminate the rental term before the designated date in the lease agreement. Several factors must be considered when such a matter arises.

Ending a Lease Early by Mutual Agreement

The easiest scenario for ending a lease early is when both the landlord and tenant want the lease to end. Just as with nearly every contract, parties are free to reach a mutual agreement for termination.

In such a case, the landlord and tenant should always put this in writing, and clearly state the date by which the tenancy is over. Landlords who are holding a tenant’s security deposit or a last month rent need to mindful that certain obligations arise when a tenancy is over, and ensure they comply with these applicable laws.

Ending a Lease Early by the Landlord and Tenant’s Conduct

It is a common misconception that only a written agreement can end a lease agreement. Rather, an agreement to reach a lease can occur “from the attendant circumstances and conduct of the parties.”

This means that, although no agreement was put in writing, the actions taken by the landlord and tenant can lead to a determination that the lease ended. For example, if the landlord accepts the apartment keys from the tenant, immediately assumes possession of the unit, and otherwise acts as if the lease had ended, there is a good argument to be made that it has . . . even without a written agreement.

This is important in a circumstance where a tenant wishes to end a lease, but the landlord does not. Here, the landlords needs to be extra careful about accepting the apartment keys or behaving in any way that could be considered as a finding that the lease ended.

One way a landlord can avoid this is by explicitly telling the tenant that he or she is not intending to end the lease.

When Only One Party Wants Out of the Lease

Under most leases, a landlord or tenant is not permitted to unilaterally end a lease. A few, limited exceptions exist, such as for tenants serving in the military or who are victims of domestic abuse. Otherwise, ending a lease early cannot be done alone by a landlord or tenant.

If a tenant does break a lease, a landlord (in the right circumstances) can pursue a claim for damages against the tenant. Before doing so, however, a landlord should consider speaking to an attorney.

Final Thoughts

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Contracts for Real Estate: Email, Text Messages Count!

Most people with a basic understanding of real estate and property law are familiar with the concept that contracts for real estate need to be in writing. The statute of frauds bars the enforcement of agreements for “the sale of lands, tenements or hereditaments or of any interest in or concerning them” unless such an agreement is in writing.

The “writing” requirement need not be done solely through a formal, written contract. Recent decisions have found such a writing to occur through email, text message, and other electronic means.

Overview of Contracts for Real Estate

The most common forms of contracts for real estate, in my experience, are offers to purchase real estate, purchase and sale agreements, and leases. Such agreements are most commonly done through written paper, which all of the parties sign.

It is a common mistake, however, to believe that such agreements must be put in traditional written form to be binding. Rather, as it is becoming increasingly common to communicate through electronic means, courts are finding that such electronic exchanges can create binding agreements.

Electronic Communications: Email, Text Messages

Several years ago, a Land Court decision held that text messages could be used to create binding contracts for real estate. The court reasoned that, under the proper circumstances, communications through text message were no different than traditional letters between parties.

The same reasoning applies to email and, in my opinion, any electronic means of communication, including social media.

Practical Implications

With this in mind, those involved in real estate need to be incredibly careful when using electronic communications.

Compared to writing a traditional letter, sending a text message or email can be done in a matter of seconds. As such communications can create binding contracts for real estate, one must use extra caution when using email and text messages for such matters.

Conclusion

If you need assistance with a real estate matter, contact me for a consultation.

3 Mistakes to Avoid When Preparing a Notice to Quit

Preparing a notice to quit is a requirement for nearly every Massachusetts eviction. This notice informs the tenant of the reason for the eviction and provides them a time period in which their tenancy is terminated.

A mistake in one of these notices, however, can be fatal to an eviction case, and lead to unnecessary delay.

Here, I’ll discuss three common mistakes made when preparing a notice to quit.

#1: Using the Improper Notice to Quit for The Tenancy

The proper notice to quit depends on the type of tenancy. Generally, a fourteen-day notice to quit is required for evictions based upon non-payment of rent, and a thirty-day notice is required for a no-fault eviction for a tenancy at will (commonly known as a month-to-month tenancy).

Landlords need to be careful that they are using the correct notice to quit for their eviction, as the wrong notice will likely lead to the eviction’s dismissal.

Landlords also need to be careful when using templates for these notices. Often, there are many free notices to quit on the Internet that are not intended for a Massachusetts eviction.

#2: Stating Inconsistent Reasons for the Eviction

A notice to quit must be consistent. Including inconsistent reasons for the eviction can also be grounds for dismissing the eviction case.

#3: Not Using a Sheriff or Constable to Serve the Notice

In an eviction, the landlord bears the burden of proving that the tenant received the notice to quit. Simply taping the notice to quit to the tenant’s apartment or mailing it to the tenant can be problematic, if the tenant denies receipt.

A much better option is to use a constable or sheriff to serve the notice. By law, such service creates a presumption that the tenant received the notice to quit. The tenant can try and argue otherwise, but will have a much harder argument to make if there is proof of service from a constable or sheriff.

Final Thoughts

If you assistance with a landlord-tenant matter, contact me for a consultation.

Help With Foreclosure

Foreclosure

Help with foreclosure is available to struggling homeowners attempting to save their homes.  The foreclosure process can be intimidating, overwhelming, and a difficult process for many borrowers.  I often meet with potential clients who believe that they they will be removed from their homes in a matter of days and have no options available for avoiding this out outcome.  Fortunately, help with foreclosure is available.

A homeowner should always attempt to apply for a loan modification, repayment plan, or loan deferment as an option for avoiding foreclosure.  If a homeowner can obtain one of these loss mitigation options on their own, they can get the problem solved without the assistance of an attorney.  If, however, a homeowner is not having luck with one of these options, they should speak with an attorney.  An attorney can help with foreclosure through negotiating with the bank or loan servicer or filing a lawsuit to stop the foreclosure if there are grounds for challenging its validity.

Earlier in the process is always better for avoiding foreclosure: the sooner a homeowner begins fighting foreclosure, the better change they have of saving their home.  However, help with foreclosure is available at all stages of the process, from the start of foreclosure all the way until after the foreclosure has occured.

Homeowners can do their part in assisting a foreclosure defense attorney by keeping a paper trail of all efforts made to work with the lender to resolve the problem on their own.  These records can be a huge help in providing an overview of the situation and possible grounds for challenging the foreclosure.

If you find yourself in need of help with foreclosure, contact me for a consultation.

Non-Payment of Rent During Coronavirus

Non-payment of rent is an important issue for landlords, especially during the coronavirus pandemic and eviction moratorium. Here, I’ll discuss what landlords should do regarding tenants who owe them rent.

Non-Payment of Rent: What Landlords Cannot Do During the Eviction Moratorium

With the exception of evictions for emergency matters, landlords cannot evict tenants. This includes the sending of notices to quit and the filing of eviction cases. Doing so can get landlords into trouble.

Non-payment of rent is not considered emergency grounds for evicting. If a landlord is not receiving rent from their tenant, unfortunately, not much can be done now to remedy the situation.

Non-Payment of Rent: What Landlords Can (And Should) Do During the Eviction Moratorium

While landlords cannot evict now for unpaid rent, landlords can (and should) notify their tenants about unpaid rent. Massachusetts has recently issued a regulation on this matter, and explains the reason for doing so:

In order to minimize the risk that a tenant will face eviction for an accumulated non-payment of rent once the Act expires, and to promote the prompt resolution of such situations without resorting to the court system, landlords should provide tenants of residential dwelling units a written notice of each missed rent payment.

This regulation, notably, states that landlords should do this. As such, it is a good practice for landlords to send these notices. This regulation includes language that should be included in these notices, including a disclaimer that the notice is not requiring the tenant to leave the apartment (very important).

Final Thoughts

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Non-Renewal of Leases: FAQs

Non-renewal of leases is an important topic for any Massachusetts landlord who rents to a tenant with a lease agreement. This topic is especially important given the ongoing coronavirus pandemic and eviction moratorium.

What’s Required for a Non-Renewal of a Lease?

Landlords should always start with reviewing the lease itself. Many leases have requirements for both the landlord and tenant to inform each other whether or not they plan to renew the lease. This is particularly important for landlords with Section 8 tenants, whose lease agreements often have specific language about these scenarios.

Many leases are silent about non-renewals. In such a case, nothing is actually required for a landlord to not renew a lease. A landlord, in theory, can simply inform the tenant, the day after the end of the lease, that he or she does not wish to continue renting to the tenant.

This is rarely a good idea. A landlord, instead, should provide a tenant with as much notice as possible in advance, in writing, that it will not renew the lease.

Are Non-Renewals of Leases Allowed During the Eviction Moratorium?

In my opinion: yes. The eviction moratorium prohibits the sending of “any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”

This language clearly covers more than just the notice to quit that is required for most evictions. However, I do not read this to prohibit a landlord from simply informing a tenant that he or she does not intend to renew a lease.

Landlords, however, need to be extremely careful when pursuing non-renewal of leases, and not include any language that can be construed as a request or demand for the tenant to vacate.

Landlords should consider including language to make this point clear. The statement below is taken from a state regulation on the eviction moratorium and can be used in notices of non-renewal:

THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.

What Happens If A Tenant Will Not Leave After The End of The Lease?

The tenant becomes a tenant at sufferance. This is a tenant who was previously allowed to be in the rental apartment, but is no longer permitted by the landlord to do so. An eviction is required to get a tenant at sufferance out of the rental property.

However, the ongoing eviction moratorium prohibits all non-essential evictions. Unless the tenant at sufferance is damaging the apartment or threatening another person’s safety, an eviction is not allowed right now.

Can a Landlord Accept Rent from a Tenant Who Stays Past Their Lease?

Landlords need to be careful in these cases.

Suppose a landlord and tenant had a one-year lease, from June 1, 2019 to May 31, 2020, with rent due on the first of every month. If the landlord accepts rent from the tenant on June 1, 2020, the landlord and tenant have now entered into a new tenancy agreement: a tenancy at will (commonly known as a month-to-month tenancy). If the landlord wishes to evict, he or she would now need to send a thirty-day notice to quit before starting an eviction case.

How can a landlord avoid this? Before accepting rent after the lease, the landlord should tell the tenant, in writing, that the money is being accepted for use-and-occupancy only. This prevents the creation of a new tenancy.

Conclusion

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Zoning for Landlords: What to Know

Zoning is an important topic for any property owner, especially landlords. Landlords should have a basic knowledge of zoning before offering property for rent, and know what to do if problems arise later on.

What is Zoning?

Zoning are local rules on the use of real property. Zoning often regulates the size, shape, and use of property in a town or city. These regulations are generally found in a town or city’s ordinances, which are usually available online.

Most towns and cities are divided into zoning districts, where only certain uses are permitted. It is common to have zoning districts for residential and commercial purposes. Towns and cities generally have a zoning map that indicates the zoning district for a particular property.

Failing to comply with a zoning regulation can have severe consequences. A town or city often has the power to issue a fine or stop-work order for a property in violation of the respective zoning ordinance.

Zoning for Landlords: Is My Property Allowed to be Rented?

For landlords, a critical issue to determine is whether the property they wish to rent is allowed for renting. Many zoning ordinances have specific requirements on where rental housing is allowed, and the minimum requirements for such rentals. This is often in addition to the state sanitary code, which applies to all residential housing in Massachusetts.

A landlord should never assume that property is suitable for renting simply because a prior owner did so in the past. It is not uncommon for zoning violations to continue for many years before finally being brought to enforcement by the town or city.

If a landlord’s property is not allowed for renting, a landlord may be able to request permission for doing so, through a variance, special permit, or some other zoning request.

Zoning for Landlords: Short-Term Rentals

Landlords need to be especially cautious about using property for short-term rentals. Short-term rentals are becoming increasingly regulated by Massachusetts towns and cities. Some municipalities require registration of these rentals, and others are banning them all together. Best for landlords to know such requirements before entering into such rentals.

Final Thoughts

If you need assistance with a zoning or landlord-tenant matter, contact me for a consultation.

Notices to Quit for Non-Payment of Rent: Proceed with “Care”

Notices to quit for non-payment of rent are required for initiating an eviction against a delinquent tenant. A landlord must generally provide a fourteen-day notice to quit for such an eviction.

However, the recent federal “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act) throws a wrinkle into this process. As such, landlords need to proceed with “care” with serving a notice for non-payment of rent (pun intended!).

Overview of Massachusetts Evictions During Coronavirus

Both federal and state law are presently prohibiting most residential evictions in Massachusetts. The CARES Act placed an initial moratorium on a large majority of eviction cases. The subsequent state eviction moratorium has stopped all non-essential evictions across the state.

When the moratorium ends, it is expected that evictions will resume (albeit under different circumstances and conditions). However, a requirement of the CARES Act will remain after the moratorium ends for notices to quit for non-payment of rent.

Notices to Quit for Non-Payment of Rent: Additional Time Required in Certain Cases

While notices to quit for non-payment of rent generally require fourteen days, the CARES Act now requires that such notices, when sent after the end of the moratorium, provide the tenant with thirty days notice.

This only applies to a specific category of properties, referred to as a “covered dwelling unit” under the CARES Act. These are generally properties that participate in a federal program or have a federally backed mortgage.

While this category applies to a wide array of tenant properties, the following landlords, in my opinion, are the most common ones who will fall under this law: those who participate in the Section 8 housing program, and those with a Fannie Mae or Freddie Mac mortgage.

For such rental properties, a thirty day notice (and not fourteen) will be required.

Practical Implications

When the courts reopen, there will be a flood of non-payment eviction cases. I’m predicting that many tenants will raise defenses related to whether the landlord served them with the proper notice to quit.

With this in mind, landlords need to be extra careful when preparing a notice to quit. If there is any chance that their rental property is covered under the CARES Act, the landlord should go with a thirty-day notice for non-payment of rent evictions.

If you need assistance with a landlord-tenant matter, contact me for a consultation.

Tenants With Criminal Backgrounds

Tenants with criminal backgrounds is a topic that landlords need to be careful about when selecting potential tenants. A guidance from the Department of Housing and Urban Development (“HUD”) suggests that a landlord’s decision to outright deny renting to any potential tenant with a criminal background can constitute housing discrimination.

What is Housing Discrimination?

Housing discrimination is when a landlord refuses to rent to a tenant based upon a protected classification. Housing discrimination comes from both federal and state law. State law, which is broader than the federal housing discrimination laws, prevents discrimination on the basis of:

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Familial Status (i.e. children)
  • Disability
  • Source of Income (e.g. a Section 8 voucher)
  • Sexual Orientation
  • Gender Identity
  • Age
  • Marital Status
  • Veteran or Active Military Status
  • Genetic Information

There are some exemptions to these laws, but they are narrow in scope. The best practice for Massachusetts landlords is to assume that housing discrimination laws apply to all of their rental properties, and proceed with extreme care and caution when selecting tenants.

Potential Tenants With Criminal Backgrounds: What To Do

Tenants with criminal backgrounds are not a protected class from discrimination. However, a HUD guidance advises that a landlord’s blanket refusal to rent to tenants with criminal backgrounds may be discriminatory.

Why? As explained in the guidance:

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability).

Importantly, a landlord can commit racial discrimination even if they had no intention of doing so, if their actions (while neutral in nature) have the result of discriminating against a protected class over others (known as disparate impact).

With this in mind, landlords need to be careful when dealing with tenants with criminal backgrounds. A landlord should never outright refuse to rent to a tenant simply because the tenant has a criminal arrest or conviction. Rather, the landlord needs to make such decisions on a case-by-case basis, and decide if there is a real justification for denying a tenant solely from a criminal past.

As with all matters regarding landlord-tenant law, landlords should keep detailed, written records of all potential tenants, in case an issue ever arises.

Final Thoughts

If you need assistance with a landlord-tenant matter, contact me for a consultation.