Evicting a tenant is the process required for obtaining possession of rental property. Evictions, known in Massachusetts as summary process, are done through an expedited court process; most often brought in Housing Court or District Court.
A recent news article reveals a disturbing trend about many landlords, due to the ongoing coronavirus pandemic, attempting to evict tenants on their own; a process commonly referred to as “self-help evictions.” Self-help evictions are highly illegal in Massachusetts, and can get landlords in an enormous amount of trouble.
Evicting a Tenant: When Is It Required?
An eviction case is required for obtaining possession against any tenant, regardless of the reason why the eviction is necessary. Although there is a limited exception for tenants engaging in illegal behavior, an eviction is generally required in every other circumstance.
No Self-Help Evictions
A “self-help eviction” is a case where a landlord attempts to remove a tenant from the rental property without a formal court case. Changing the locks, cutting off utilities, and threatening a tenant can all be considered a self-help eviction, and are expressly forbidden under Massachusetts law.
An eviction case requires a landlord, in most cases, to provide the tenant with a notice to quit, serve the tenant with a formal eviction summons, and appear in court. The process takes time and, understandably, can be frustrating, especially when it is against a non-paying tenant.
Presently, there is an eviction moratorium in Massachusetts, which is preventing the filing of almost all eviction cases for the foreseeable future. As such, it is understandable why some landlords may be tempted to bypass a formal eviction case against a tenant. Doing so, however, is a terrible idea, and will be far more trouble than it is worth.
Instead of considering a self-help eviction, contact me for a consultation. While evictions are not going forward now, I can explain the process to you, what can be done in the meantime, and how to prepare for such an action when the courts reopen.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest blog on a recently Appeals Court decision on the pitfalls of zoning litigation. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at email@example.com.
On April 24, 2020, a panel of the Appeals Court (Massing, Desmond, & McDonough, J.J.) decided Bylinski v. Building Commissioner of Douglas, 97 Mass. App. Ct. 1113, Docket No. 18-P-450 (Rule 1:28 decision) and reversed a court order to demolish a cottage for non compliance with the relevant provisions of the zoning act (G.L. c.40A). This otherwise obscure case represents a cautionary tale for all zoning practitioners-it’s the latest chapter of a tortuous 11 year Dickensian odyssey through three trial court departments that has spurred, counting this case, five appeals to the Appeals Court.
Bylinski owns property along Wallum Lake in the rural town of Douglas near the Connecticut and Rhode Island borders. Tusino owns Guaranteed Builders (GBI) and bought the adjoining lot through GBI. In 2008, despite insufficient frontage and setbacks, GBI obtained a permit to build a cottage. Bylinski unsuccessfully requested that the building commissioner revoke the permit and then appealed to the zoning board (“The Board.”)
The Board failed to resolve Bylinski’s appeal within 100 days. By operation of law, the Board constructively revoked GBI’s permit. See G.L. c.40A, §15, 5th par. GBI unsuccessfully appealed that order to the Superior Court. See Guaranteed Builders and Developers v. Haire, et. al., Civil Action No. 0985CV2052 (Super. Ct. Worcester Co., filed September 3, 2009).
Bylinski then filed a mandamus action in the Land Court to compel the building inspector to enforce the zoning bylaw and now revoked building permit. In the meantime, GBI successfully finished building the cottage. GBI then unsuccessfully sought a variance from the frontage requirements and litigated the issue all the way to the Appeals Court. Guaranteed Builders v. Zoning Board of Appeals of Douglas, 85 Mass. App. Ct. 1101, Docket No. 2013-P-948 (Rule 1:28 Decision, Feb. 21, 2014).
At the same time, the Land Court judge dismissed Bylinksi’s petition for mandamus because Bylinski had not exhausted his administrative remedies before. Bylinski appealed the Land Court’s order to the Appeals Court and pursued administrative relief at the same time. While Bylinski’s appeal was pending, the Board sided with him and reversed the building commissioner’s refusal to enforce the zoning bylaw and issued a demolition order.
The demolition order contained curious language-the order did not require the town to demolish GBI’s house. But the order also did not limit Bylinski’s right to seek direct injunctive relief if GBI and Tusino did not demolish the house. GBI unsuccessfully appealed that order to the Uxbridge District Court before appealing to the Appeals Court.
The Appeals Court consolidated and ultimately dismissed Bylinski’s and GBI’s appeals. SeeTusino v. Zoning Board of Appeals of Douglas, et. al. 90 Mass. App. Ct. 89 (2016). Specificially, GBI had appealed to the wrong court by appealing directly to the Appeals Court rather than to the Appellate Division of the District Court-and they were out of time to go back there. Since dismissing GBI’s appeal made the demolition order final, Bylinski’s appeal from the Land Court’s denial of mandamus became moot because he obtained all the relief he sought.
Curiously, Bylinski did not seek to enforce the demolition order from the District Court. Rather, Bylinski went back to the Land Court, reopened his case, joined Tusino as a defendant, and sought an injunction to demolish the completed but empty cottage. (The Building Commissioner has never issued an occupancy permit.) In December 2017, a Land Court judge finally ordered that Tusino and GBI demolish the cottage or risk being held in contempt of court. Tusino and GBI appealed and successfully stayed the demolition order.
The Appeals Court’s Most Recent Decision
Preliminarily, the panel resolved two procedural issues. First, the panel reached the merits notwithstanding that there were unresolved claims against parties below and the Land Court judge did not certify an immediate appeal under Mass. R. Civ. Pro. 54(b). Indeed, holding otherwise would needlessly further prolong this case. Second, in a lengthy footnote, the panel held that Bylinski properly and timely joined Tusino. By law, trial courts had authority to join any dispensable to permit the case to proceed and related back to the original pleadings-and thus were not outside any statutes of limitation or repose. See FN7, citing G.L. c.231, §51.
Cleared of that underbrush, the panel considered whether Bylinski, as an individual, could seek an injunction from the Land Court to compel Tusino and GBI to demolish the house. The panel comprehensively reviewed the relevant procedures under the zoning act.
G.L. c. 40A, § 7 permitted any person to request that the building commissioner (or other local official) to enforce the zoning by laws. If the party failed to obtain relief from the building commissioner, the party could appeal to and obtain enforcement orders from the zoning board, same as the building commissioner. G.L. c.40A, §§8, 14. If the party still remained aggrieved, they could then pursue judicial review and broad equitable relief. G.L. c.40A, §17.
Section 7 empowered the Superior Court and the Land Court to enforce zoning bylaws and issue injunctions to remedy bylaw violations. However, Section 7 also contained an important caveat: “no action, suit or proceeding…[or] administrative action or other action…to…compel the removal..of a structure [for violating] a zoning by-law [shall proceed] except in accordance with this section and sections 8 and 17.” This limitation dovetailed with the important principle that there is no private right of action to enforce zoning bylaws-a private citizen cannot go directly to court to enforce the zoning bylaws when a town or city does not.
The case distilled to whether Bylinski had assiduously followed these procedures. The panel concluded he had not. First, Bylinski’s case could not constitute a zoning appeal under Section 17 because he did not perfect the appeal under Section 17. Bylinski already obtained a demolition order from the Board-thus, he was not an aggrieved party who could appeal.
Although the Board’s order suggested that Bylinski himself could compel demolition, by law, only a building inspector or a zoning board could directly enforce zoning bylaws and compel demolition without pursuing administrative remedies. Bylinski had not done so, and thus the Land Court judge could not issue a demolition injunction directly against Tusino on Bylinski’s behalf. However, Bylinski had remedies. First, he could renew his mandamus action in the Land Court against the building commissioner. Second, he could reopen the District Court case where the demolition order issued. Indeed, because Bylinski remained an aggrieved abutter, he could seek repeated requests for enforcement based on changed circumstances.
Are There Too Many Zoning Appellate Forums?
This case illustrates how the breadth of forums for zoning appeals can cause problems. Under G.L. c. 40A, §17, one may appeal a zoning board’s order to either of four trial courts: the District Court (except in Hampden County [Springfield]), the Housing Court, the Land Court, or the Superior Court. As occurred here, parallel actions can arise in any or all of those courts.
This broad choice of forum has also caused serious mischief in the past. In Skawski v. Greenfield Investors Property Development, 473 Mass. 580 (2016), abutters filed a zoning appeal in the Housing Court challenging a large development in Greenfield. The developers sought transfer to the permit session of the Land Court-which the Legislature specifically created to streamline challenges to large developments. 473 Mass. at 582-583 (describing their requests for transfer), and 586-591 citing G.L. c.185, §3A. Nearly five years later, the SJC finally concluded that the abutters erroneously went to the Housing Court but could press their zoning appeal to either the Land Court or the Superior Court. 473 Mass. at 591-593.
But in Tusino, the Appeals Court held that the Legislature effectively overruled Walker by expanding the equity jurisdiction of the District Court and creating the “one trial system” during the 2000’s. 90 Mass. App. Ct. at 91. The Appeals Court reached this result despite their established rule that they do not and cannot overrule the SJC to alter established rules. See e.g. Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973).Put another way, if the SJC incorrectly decided Walker, or if the Legislature overruled Walker, it was up to the SJC and the SJC alone to overrule Walker. This decision also does not ensure uniform treatment of litigants.
If Section 17 commands that zoning appeals “shall have precedence over all other civil actions and proceedings”, the prospect of parallel actions in up to four trial courts with up to three layers of appellate review hardly seems to accomplish that end. Worse, as in Skawski, the issue of zoning appeal forum selection arose twice and two different trial court Chief Justices took no action to resolve it before it reached the SJC. 473 Mass. at 582-583.
How can you avoid forum wrangling? File the zoning appeal in the Land Court or the Superior Court to keep a case before one judge. Indeed, in the Land Court, all cases proceed before one judge for their entire legal lives there. Land Court Standing Order 1-04(B). In the Superior Court, you can seek a special assignment of one judge. See Superior Court Standing Order 9-80. If there are multiple related cases in multiple courts, move to consolidate all your cases into one court pursuant to Trial Court Rule XII. Indeed, there is a presumption of consolidation in cases involving identical parties and issues.
Coordinate with Town Officials
This case also, at best, does not flatter, and at worst, is “a study in mulish behavior” of town officials and town government in Douglas, Darcy v. Hankle, 54 Mass. App. Ct. 846, 847 (2002) (Kass, J.) The Building Inspector allowed Tusino to build his cottage. Ironically, Bylsinki won his appeal by appeal by operation of law because of the Board’s inaction on it. Although the Board denied Tusino’s request for a variance, the Board still did not act to stop him from building the cottage. And, the Board wrote an ambiguous demolition order. Practitioners should be alert to whom they are working with locally and ensure that all interests are aligned. If you are seeking mandamus relief, be sure that the official government has no discretion not to act, with a statue or regulation that reads “shall”-and you have no other remedies.
Seeking Additional Appellate Review of Zoning Decisions
This case also exhibits some perils of taking an appeal. Bylinski could have avoided some appellate review by seeking to stay appellate proceedings to obtain administrative relief. If a party validly entered their appeal, trial courts cannot enter orders that could moot appeals that are pending without leave of an appellate court. Springfield Housing Authority v. Garcia, 44 Mass. App. Ct. 432 (1998). The same logic should apply to seeking administrative relief.
Moreover, neither party seemed alert to how this appeal was not from a truly final judgment-i.e. that the order resolved all claims against all parties. See e.g.Patel v. Martin 481 Mass. 29, 31-32 (2018). The best practice is to resolve that issue before appealing. The lack of a final judgment is potentially a serious jurisdictional defect. Had this case not dragged out for 11 years, the panel may not have exercised their discretion to decide the appeal.
Finally, this opinion is the latest in an unfortunate prevalence of unpublished opinions. The Appeals Court typically issues unpublished opinions in cases that present “no substantial question of law.” Appeals Court Rule 1:28, soon to be Appeals Court Rule 23.0.These issues do not seem to fit that rule. The question of who had the power to compel demolition seems to arise in an unusual context. A published decision could have clarified that issue as the panel’s decision cites many older cases and practitioners could have benefitted from that.
The end result of an unpublished decision is strange given the timeframe. The panel originally heard this case in January 2019. An April 24, 2020 decision is nearly a year beyond the Appeals Court’s internal guideline to resolve appeals within 130 days of argument.
Given this background, this case seems like a candidate for further appellate review by the SJC. This case has lasted for 11 years-and the Appeals Court’s decision seems to all but assure further litigation. On practical level, it seems highly wasteful to have an unoccupied cottage taking up space along Wallum Lake because there is no occupancy permit for it-and it’s going to stay that way on remand.
Although allowance of further appellate review may further prolong this case, further appellate review may finally spur a resolution to this case. The SJC tends to expedite matters on FAR. Indeed, historically, the SJC has seemed concerned about zoning matters dragging out-as in Skawski. See also Murchison v. ZBA of Sherborn, SJC-12867, on further appellate review from 96 Mass. App. Ct. 158 (2019), Paper No. 23 (affirming dismissal for lack of standing with an opinion to follow.) As of now (May 31), no application has been filed.
In sum, this decision should operate as a clarion warning for zoning practitioners about how litigation can proliferate out of control. But there are steps practitioners can take to avoid these pitfalls. Moreover, if the SJC does not step in to remedy how these trapdoors opened, the Legislature should-particularly about the breadth of choices of forum in zoning cases.
Joseph N. Schneiderman is an appellate practitioner in Massachusetts and Connecticut with particular affinities for zoning, municipal law, and appellate practice and procedure. Joe recently argued his 20th appeal in his career and Joe gratefully thanks Adam for another opportunity to blog.
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.
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.
If you assistance with an landlord-tenant matter, contact me for a consultation.
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.
If you need assistance with a landlord-tenant matter, contact me for a consultation.
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.
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.
If you need assistance with a real estate matter, contact me for a consultation.
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
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.
If you assistance with a landlord-tenant matter, contact me for a consultation.
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 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).
If you need assistance with a landlord-tenant matter, contact me for a consultation.
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 astate 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.
If you need assistance with a landlord-tenant matter, contact me for a consultation.
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 forshort-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.
If you need assistance with a zoning or landlord-tenant matter, contact me for a consultation.