Foreclosure Moratorium in Massachusetts: FAQs

Earlier this week,  Governor Baker signed into law “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.” I previously wrote about how this law affects evictions. In this post, I’ll discuss the foreclosure moratorium.

What Foreclosures Are Covered Under the Moratorium?

The moratorium covers all residential foreclosures in Massachusetts. This law broadly prohibits all action related to a Massachusetts foreclosure, including the start of a Servicemembers Case and the publishing of a foreclosure sale notice.

An exception is allowed for “vacant or abandoned” property. The law does not cover foreclosures for commercial property.

What Relief is Available to Homeowners Under the Moratorium?

The law allows a homeowner to request a forbearance of their mortgage loan, which temporarily suspends payments on the loan. This is only allowed for those who have a “certain mortgage loan”, which is defined under a pre-foreclosure law, G.L. c. 244, § 35B. This forbearance, importantly, requires that the unpaid loan expenses be added to the end of the loan.

Forbearances are presently allowed for many homeowners under the federal CARES Act. However, to the best of my knowledge, a forbearance under the CARES Act does not require a lender to add the unpaid balance at the end of the loan, as the state moratorium does.

How Long Will the Moratorium Last?

120 days after the passage of the bill or 45 days after the COVID-19 emergency declaration has been lifted . . . whichever is sooner. The Governor also has the power to extend this moratorium.

What Impact will the Moratorium Have on Future Foreclosures?

A common misconception about foreclosure is that the process begins immediately after a homeowner misses a loan payment. In Massachusetts, nothing can be further from the truth. A myriad number of state and federal laws and mortgage requirements must be followed before a foreclosure sale can occur. It can easily be at least a year (and often longer) from the default of a loan up to a foreclosure sale.

As such, even without the moratorium, I wouldn’t have expected too many foreclosure sales to occur during the coronavirus pandemic. Some lenders may have started the process, but few homes would have actually been foreclosed. This moratorium will delay the inevitable foreclosures that will eventually arise from the pandemic.

What will happen next? It is possible that a wave of foreclosures may occur in the next several years, similar to what happen after the 2007/2008 financial meltdown. In my opinion, the most likely scenario is that loan servicers and other mortgage holders will be flooded with requests for mortgage relief in the next year. Many homeowners, unfortunately, will have difficulty getting the assistance they need.

Final Thoughts

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

Preventing Adverse Possession in Massachusetts

Massachusetts zoning

Preventing adverse possession is a concern that all property owners should keep in mind when dealing with a trespasser upon their property. Without taking the proper action, one’s property can be lost to another.

What is Adverse Possession?

Adverse possession is a legal claim that allows a party to obtain real property owned by someone else if the trespasser has used it continuously for a minimum of twenty years. Adverse possession has a number of specific requirements, including one that the use of the property must be non-permissive. In other words, the party using the property must have done so without the land owner’s permission.

In Massachusetts, there is a presumption that the use of another’s property is non-permissive, unless there is something to show otherwise. With this in mind, property owners need to be careful when dealing with a circumstance in which someone else is using their property.

Preventing Adverse Possession: Give Them Permission to Use the Property

The first, and easiest means of preventing adverse possession, is to simply give the other party permission to use the property. This is a good option when the other party’s use of the property isn’t a major concern, and (other than to avoid adverse possession) there is no real harm to the land owner.

Permission to use property can be done through a license, which is a limited right to use property that, importantly, is revocable. When giving such permission, it should always be done in writing, with proof of receipt to the other side. It is also a good idea to consider recording this notice in the land records.

Note that giving permission to the other party must be done within the twenty-year deadline for adverse possession. If the twenty-year period has already elapsed, adverse possession may already have occurred.

Preventing Adverse Possession: File a Court Action To Remove the Trespasser From the Property

If you do not want to give the other party permission to use your property, a court action to remove the trespassing party may be necessary. A court has authority to issue an injunction, which is a legal order preventing a party from doing something. In the case of a trespasser, a court can order a party to stay off of another’s property.

Final Thoughts

Preventing adverse possession is an important matter for any property owner with a trespasser. If you need assistance with such a matter, contact me for a consultation.

Eviction Moratorium in Massachusetts: FAQs

As expected, Governor Baker signed into law “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.” This law puts the brakes on all current and future evictions for the time being.

Who’s Covered by the Eviction Moratorium?

The eviction moratorium applies to all residential landlords and tenants, and commercial “small business premises unit” tenants, who fit a narrow definition for a small business.

What’s Covered Under the Eviction Moratorium?

Landlords are not permitted to serve notices to quit, file eviction cases, or seek a default judgement against tenants. The moratorium also bans nearly all other possible action that could occur in an on-going eviction proceeding.

How Does This Affect Current Eviction Cases?

The eviction moratorium suspends any deadlines involved with a pending eviction case. In cases where the landlord has already obtained an execution for possession, the bill prevents landlords from being able to use it (known as “levying an execution”).

How Long Will This Last?

120 days after the passage of the bill or 45 days after the COVID-19 emergency declaration has been lifted . . . whichever is sooner. The Governor also has the power to extend this moratorium.

In essence, this means that, most likely, no evictions will be proceeding until July 2020, at the absolute earliest.

What Are the Exceptions to the Eviction Moratorium?

Evictions are allowed for cases concerning:

(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or

(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public

There are also several exceptions for certain commercial evictions.

My take is that a landlord will need a strong, documented case against a tenant to even try one of these limited exceptions. Few judges are going to readily allow an eviction with the coronavirus ongoing.

Are There Any Protections for Landlords During the Eviction Moratorium?

The law allows landlords to use a last month rental deposit for “expenses”, such as mortgage payments and repairs. From my reading of the law, a landlord cannot use a last month rental deposit for unpaid rent alone.

If the landlord uses this deposit, the landlord must notify the tenant, inform the tenant that the deposit will still be applied for rent at the last month of the tenancy, and that the landlord must still pay the tenant interest on this deposit.

This is not allowed for a security deposit.

Must Tenants Continue Paying Rent During the Eviction Moratorium?

Yes. However, given this moratorium, a landlord will have limited means of doing anything about non-payment of rent for quite some time.

For landlords, be extremely careful when dealing with non-paying tenants. Any conduct that could be considered a “self-help” eviction is not worth the risk.

Final Thoughts

With the courts (and the rest of Massachusetts) closed, evictions aren’t happening anyway. This moratorium will continue this status quo for months ahead, and push most evictions into Summer/Fall 2020.

As I’ve written before, there will be an enormous backlog of cases when the courts reopen, from both existing cases and the inevitable future cases that will arise over the next few months.

If you need assistance with a landlord-tenant matter, feel free to contact me.

Tips for Obtaining Mortgage Payment Assistance

Due to the ongoing coronavirus pandemic, many homeowners will likely need mortgage payment assistance in months ahead. Here are some tips for homeowners in need of such help.

Speak to Your Lender

For anyone seeking mortgage payment assistance, the first step is to speak with your lender. Most lenders have some form of mortgage assistance available, which can sometimes be granted through a simple phone call with the lender.

The most important piece of advice for obtaining mortgage payment assistance is (1) get it in writing and (2) keep a timeline of your communications with the lender. If a problem arises later, having this information can be critical in trying to avoid foreclosure.

Understand the Relief Available

Most lenders are offering mortgage forbearances as assistance during the coronavirus pandemic. A forbearance is a postponement of mortgage payments. It gives the homeowner a break from paying their mortgage.

A forbearance, importantly, does not forgive what is owed, or permanently modifies the loan. A homeowner who receives a forbearance needs to remember that their mortgage payments will resume in the future.

I have a feeling that the federal government (and many lenders on their own) will be pushing through more permanent mortgage assistance options in the future, so additional relief may be available soon.

Foreclosures Are Not Occurring Anytime Soon

While many homeowners, understandably, are concerned about losing their homes, foreclosures will not be occurring soon, due to federal and state regulations. Homeowners, however, do need to be proactive in addressing these matters, as foreclosures will resume at some point in the future.

Conclusion

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

Challenging a Zoning Decision: SJC Clarifies the Rules

foreclosure appeal

I previously wrote a post about Murchison v. Zoning Board of Appeals, concerning the matter of challenging a zoning decision. This was a decision from the Appeals Court that discussed who can pursue a zoning appeal. Murchison, in essence, held that any zoning decision that affected a density matter was grounds for pursuing a zoning appeal.

This decision was of great concern to many developers and real estate professionals, who worried that the decision would allow anyone to pursue a zoning appeal. The Supreme Judicial Court (“SJC”) agreed to review this decision again, and ruled that the party trying to pursue this appeal in Murchison lacked standing to do so.

Challenging a Zoning Decision: Who Is Permitted to File an Appeal?

Massachusetts law allows for appeals of local zoning decisions from zoning board of appeals (“ZBA”), planning boards, and other local zoning agencies. Such an appeal must be filed twenty days after the decision is filed with the city or town clerk.

Challenging a zoning decision requires a party to be aggrieved. In essence, this means that the party will suffer harm from the zoning decision. In legal terms, this is referred to as having standing to pursue the case.

Standing for a zoning appeal is a critical, threshold requirement. If a party lacks standing, the appeal will be dismissed.

Zoning Appeals After Murchison

Murchison concerned one of the common grounds for showing aggrievement: density. Density is often regulated through front and side setback requirements, height limitations, and lot-width restrictions. The purpose of such density restrictions are to prevent overcrowding of properties.

Massachusetts law allows a party to apply for an exemption from a zoning requirement, known as a variance. In limited circumstances, the town or city zoning board can grant such a exemption. If, however, another party is harmed by such a decision, they have a right to appeal.

For example, if a property owner obtains a variance allowing them to build a storage shed closer to their neighbor’s home, the neighbor will likely be able to appeal this decision.

The Appeals Court decision in Murchison (which the SJC overturned) suggested that any violation of a density requirement was grounds for standing. This was contrary to prior decisions, which suggested that a party needed to show some actual harm from the zoning relief. If, for example, the party wishing to appeal was not located near the subject property, the Appeals Court decision suggested that the zoning appeal could still proceed.

The SJC overturned the Appeals Court decision in Murchison the day after the hearing in this matter. I’ve never heard of the SJC ever issuing a decision so quickly, which underscores the importance of this matter.

However, the SJC has not yet issued a written decision on this matter. Until they do, the law on zoning appeals remains unclear.

Conclusion

If you need assistance with a zoning appeal, contact me for a consultation.

Three Success Stories as a Landlord Lawyer

As a landlord lawyer, I’ve had the pleasure of representing numerous Massachusetts landlords with their disputes against tenants. As an attorney who has represented landlords and tenants, I have experience with both sides of these legal disputes.

Here, I want to discuss three success stories that I’ve had as a landlord lawyer.

Working Out a Repayment Plan for Unpaid Rent

One of the best ways to succeed in a landlord-tenant dispute is to keep the matter out of court in the first place.

My client owned a condominium in the Greater Boston area, and was owed a large amount of rent from his tenants. The client hired me to start an eviction against the tenant.

Prior to starting the eviction, however, I reached out to the tenants to discuss a repayment plan. I was able to reach an agreement with the tenants to avoid a court proceeding and get my client repaid his money.

What’s the lesson of this? Keeping matters out of court is almost always the best outcome for landlords and tenants. In this case, my client recovered his rent and the tenants avoided an eviction.

Initiating An Eviction for A Tenant Who Doesn’t Plan To Leave An Apartment At the End of a Lease

When a lease is over, a tenant is suppose to leave the rental property (if the landlord doesn’t want them to stay). If the tenant remains, the landlord needs to evict.

Massachusetts law, however, has a lesser known provision that allows a landlord to start an eviction case before the end of the lease, if it is clear that the tenant has no plans to leave.

I represented a landlord whose tenant had no plans to leave at the end of the lease. Rather than wait until this happened, I took advantage of this law and filed the eviction right away. Doing so saved my client time, and got the matter to court (and to a resolution) as quickly as possible. Given that the eviction process in Massachusetts can be lengthy, starting as soon as possible is to the landlord’s benefit.

Protecting a Landlord’s Property From a Disruptive Tenant

In my practice as a landlord lawyer, I sometimes come across landlord-tenant disputes that are about more than just unpaid rent.

In this case, I represented a landlord who needed possession of his apartment. Prior to the start of the eviction, we learned that the tenants were damaging the property.

My response was to request a temporary restraining order (“TRO”). This court order, which is a form of injunctive relief, asks the court for an immediate order preventing a party from doing something. This is allowed for a case of irreparable harm, where the damage cannot be fixed simply by payment of money at the end of the case.

In this case, the court granted my TRO. Doing so helped bring the case to a prompt resolution.

Conclusion

My work as a landlord lawyer is rewarding, and I like nothing better than getting a great result for my clients. If you need help with a landlord-tenant matter, contact me for a consultation.

Serving a Notice to Quit

Massachusetts’s Supreme Judicial Court issued an important decision last week on landlord-tenant law. The full decision, Youghal, LLC v. Entwistle, is included below.

Like many appeals, the decision touches upon many different legal issues, not all of which are relevant for Massachusetts landlords. Here, I want to focus on a topic that is critically important for landlord-tenant law: properly serving a notice to quit. I’ll also discuss the requirements for appealing a landlord-tenant case (this latter topic constituted the bulk of the decision, but is more relevant to lawyers than landlords).

Overview

Youghal was an eviction case brought by a landlord against a tenant for non-payment of rent. This eviction, like nearly every Massachusetts eviction, required the landlord to provide the tenant with a notice to quit prior to filing the eviction case.

A notice to quit provides the tenant with the reason and date that the landlord is terminating the tenancy. Such a notice is a mandatory requirement for evictions, and as demonstrated in this case, can be fatal if not done correctly. For non-payment of rent, a landlord generally has to give a tenant a fourteen (14) day notice to quit.

Serving a Notice to Quit

One of the defenses that the tenants raised in this case is that the landlord filed the eviction case too soon, before the end of the fourteen day notice period. Here, it appears that the landlord posted the notice to quit on the tenant’s door. The tenant was not present when this occurred, and only learned about it the following day.

The landlord argued that the fourteen-day period was based on the day that the landlord posted the notice. The Court disagreed, ruling that this period started when the tenant had actual notice of the notice to quit. Simply posting the notice on the door was not enough to start this fourteen-day period.

Practical Implications

How could this have been avoided? The landlord in this case should have a used a constable or sheriff to serve the notice to quit.

By law, a constable’s return of service is prima facie evidence that the tenant was served. A tenant can still try and argue that they never received the notice to quit, but must overcome a presumption that service was properly made.

While it is not entirely apparent from this decision, it appears that the landlord in this case never used a sheriff or constable to serve the notice to quit, and instead, did it on their own. Such an approach is risky because, as seen in Youghal, if the landlord does not actually hand the notice to the tenant, it can be an open question as to when the tenant received notice.

To be clear, it is possible that the same defense could have occurred even if a sheriff or constable was involved. In my experience, however, serving a notice to quit through a constable or sheriff makes such problems much less likely to occur.

Appealing a Landlord-Tenant Decision

Youghal also concerned the process of appealing a landlord-tenant decision. Such appeals come with an incredibly tight deadline: ten days after final judgment. The issue in Youghal concerned a scenario where this deadline is extended by the filing of a motion for reconsideration.

Attorney Joseph Schneiderman, who prepared a brief for the benefit of the tenants in this case, told me that “[t]hese provisions of the civil and appellate rules often create counterintuitive tangles that confound practitioners and litigants alike, especially in summary process cases. This decision positively detangles this issue by allowing a party to toll the appeal clock by moving for a new trial or to alter or amend.a judgment before judgment formally enters.”

What’s the take home lesson for landlords? Be extremely careful when filing a landlord-tenant appeal.

Conclusion

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

Youghal-LLC-v.-Entwistle

Hiring a Civil Litigation Lawyer: Lessons from a Successful Case

Civil Litigation Attorney

Last month, I obtained a favorable decision in a Superior Court lawsuit. As a civil litigation lawyer, I generally focus on real estate matters, including landlord-tenant matters, zoning issues, and boundary disputes. This case was a different area of law than I usually handle, but still concerns some incredibly relevant topics on succeeding in a civil litigation matter.

This case concerned a claim of emotional distress, where my client was accused of committing conduct that caused the opposing party to suffer severe anxiety, depression, and distress. These types of claims are a high burden to meet: the law generally requires a strong case of misconduct for such a claim.

To defend my client, I focused heavily on the extensive case law concerning this particular emotional distress claim. The law only allows such a claim in very limited circumstances, which I focused on when preparing our defense.

A successful civil litigation attorney takes advantage of discovery, the process by which a party is allowed to learn about the other side’s claims and defenses. In this case, I forced the other side to admit that they didn’t satisfy several of the requirements for their claim.

Many people, understandably, think that every legal proceeding ends in a trial, like we see on TV or movies. In reality, many claims can be resolved without a trial, through a dispostive motion, which asks the court to make a ruling on the merits of the overall claim, without a trial.

Here, I made a motion for summary judgment. Summary judgment is a final decision on a legal claim, where the relevant facts are not in dispute. Rather than go through a trial, summary judgment permits the judge to make a final decision on a case.

The decision for a civil litigation attorney to request summary judgment should not be made lightly. Summary judgment is only allowed when the facts are undisputed. If a case concerns a scenario where the parties disagree about the relevant facts, summary judgment will not be allowed.

I’ve seen too many cases where a civil litigation attorney requests summary judgment when the facts are clearly in dispute. Doing so is a waste of the client’s time and simply delays bringing the case to trial.

In this case, I believed summary judgment was appropriate, and a good use of my client’s time and money. The Court agreed, and ruled in our favor! This decision brought this matter to an end without a trial, and saved my client considerable time and money.

As a civil litigation attorney, there is no better feeling than getting your client a successful outcome in a case. It is especially gratifying when I’m able to do so at minimal time and expense for my client.

If you need assistance with a civil litigation matter, contact me for a consultation.

Guest Blog Post: Attorney Fees for a Lis Pendens Appeal

The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneiderman guest blog on an upcoming Appeals Court decision regarding attorney fees for a lis pendens appeal.  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

In DeCicco v. 180 Grant Street, LLC, SJC-12831, the Supreme Judicial Court  is considering whether a party may seek appellate attorney’s fees in a lis pendens appeal in addition to attorney’s fees in the trial court. 

A memorandum of lis pendens is a judicially endorsed document filed with land records at the Registry of Deeds land indicating that litigation is pending that may affect title to and interest in the land. A comprehensive statute governs issuing and challenging a lis pendens. See e.g. Ferguson v. Maxim, 96 Mass. App. Ct. 385, 388-392 (2019), citing G.L. c.184, §15. 

A defendant may challenge the lis pendens by filing a special motion to dismiss the lis pendens as frivolous or “devoid of any reasonable factual support [or] arguable basis in law [or] is subject to dismissal based on a valid legal defense such as the statute of frauds.” G.L. c.184, §15(c). 

Filing a special motion to dismiss stays discovery but also expedites the case; the court shall hear the motion within three days of the date “notice of the motion was given to the claimaint.”  Ferguson, 96 Mass. App. Ct. at 389, n.12. Whoever loses the special motion to dismiss also has an immediate right to pursue an interlocutory appeal-and the ultimate prevailing party has the right to recover attorney’s fees and costs. Id. , n.13. 

This case stems from a purchase and sale agreement for a large, new $2M home in Lexington that went awry. The buyers (DeCicco) later filed a suit asserting breach of contract, implied warranty of good faith and fair dealing and obtained a memorandum of lis pendens. 

The sellers (180 Grant Street) brought a special motion to dismiss and dissolve the lis pendens. A judge of the Superior Court allowed the motion to dismiss and concluded that the facts did not support that the buyers and sellers intended to be bound by the purchase and sale agreement-and was therefore frivolous. The judge also awarded slightly less than $18,000 in attorneys fees to the sellers. The buyers unsuccessfully appealed. However, the Appeals Court disagreed with the seller’s claim that the appeal was frivolous and declined to award attorney’s fees and cost on appeal. The sellers successfully sought further appellate review of this specific point. 

The case distills to two apparently colliding definitions and applications of the term “frivolous.” As earlier, the lis pendens statute defines frivolous as a claim lacking factual or legal support or barred by an established legal defense. G.L. c.184, §15(c).  A trial court that finds a frivolous claim shall award the moving party fees and costs.

On the other hand, an appeal is frivolous when: (1) under settled law,  an appellant harbors no reasonable expectation of reversal or (2) when a litigant engages in such egregious conduct during briefing (like personally attacking a party or making claims without any good faith basis) that their conduct fatally quagmires any meritorious arguments. See e.g. Avery v. Steele, 414 Mass. 450, 455-456 (1993), citing, inter alia, Mass. R.A.P. 25.

However,“unpersuasive arguments do not render an appeal frivolous”-the appellate court has broad discretion to determine whether an appeal is frivolous. Steele, 414 Mass. at 455. Put another way, frivolous appeals are very much the exception and not the rule. Compare US Bank National v. Johnson, 96 Mass. App. Ct. 291, 297 (2019) (cleaned up.) (Frivolous claims are “[futile and without] a ‘prayer of a chance.’”)

The buyers argue that the express absence of a provision relating to appellate attorney’s fees in the lis pendens statute should favor them. Indeed, attorney’s fee awards are very much the exception and not the rule in American jurisprudence and in the absence of express authority for attorney’s fees, parties bear their own costs.

On the other hand, the sellers (supported by the Real Estate Bar Association [REBA] as amicus curiae) contend that the 2002 amendments to the lis pendens statute creating the expedited special motion to dismiss function to avoid long clouds over title from litigation. Awards of attorney fees are integral to those amendments to avoid those clouds and not awarding them thwarts that purpose. REBA recalls that before 2002, there was rampant abuse of lis pendens and the 2002 amendments were remedial. 

The sellers further emphasize that other fee award statutes that do not explicitly mention appellate attorney’s fees are still inherent in those statutes to fulfill the purpose of those statutes. The sellers and REBA specifically analogize the lis pendens procedure to special motions to dismiss under the Anti-SLAPP statute (G.L. c.231, §59H) where appellate fee awards are available. Compare Ferguson, 96 Mass. App. Ct. at 390-391. 

The sellers also argue that, in the context of lis pendens, the definition of frivolous at trial must also follow to an appeal. REBA clarifies this by arguing that the two standards are different and a finding of a frivolous claim for purposes of lis pendens is independent of a frivolous appeal. 

On the one hand, the buyer’s points follow the established rule because courts do not add words to a statute that the Legislature explicitly did not include. Commonwealth v. Calvaire, 476 Mass. 242, 245 (2017). Indeed, courts cannot insert otherwise absent words  by interpretive “surgery.” Commonwealth v. Dayton, 477 Mass. 224, 226 (2017). Courts also construe statutes creating appellate review strictly. Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694, 699 (1943).

 On the other hand, resolving silence in a statute must also operate to further the statute or statutory scheme. Charbonneau v. Presiding Justice, 473 Mass. 515, 519 (2016). Courts also always interpret statutes as a whole.   Silva v. Carmel, 468 Mass. 18, 23 (2014). If attorney’s fees are fundamental to accomplishing how the special motion to dismiss avoiding clouding title, the seller’s and REBA’s points are especially compelling.

One of REBA’s points feels hollow: how often do appeals actually result in dissolution of lis pendens? Put another way, in the context of lis pendens, is frivolous the rule rather than the exception? Having two different standards and applications of “frivolous” are sensible. Compare Commonwealth v. Trussell, 68 Mass App. Ct. 452, 454-459 (2007) (the standard of good cause to file a late appeal in criminal cases is less exacting than in civil cases because of the liberty interests at stake.) But REBA did not discuss or answer that in their brief. 

At the same time, appellate review should not be so costly that there would be no review of lis pendens. This would follow from awarding attorney’s fees across the board and would potentially be an absurd and irrational result and is one that courts avoid. Compare i.e. City of Revere v. Gaming Commission, 476 Mass. 591, 606-607 (2017). 

Unfortunately, due to COVID-19 crisis, unfortunately, the SJC is not hearing oral arguments in this case. Nevertheless, as the SJC often does, they will strike a thoughtful balance between these clashing principles.

Joe Schneiderman practices appellate advocacy exclusively in Massachusetts and Connecticut. Joe recently won, as amicus curiae, Youghal v. Entwistle, 484 Mass. 1019 (2020), involving appellate procedure in eviction cases, and in June 2019, Joe also successfully co-authored and appeared for oral argument on behalf of the amici in the similar case of Ten Diamond Street Realty Trust v. Farrar,  95 Mass. App. Ct. 1118 (No. 19-P-315, Rule 1:28 Decision, June 24, 2019). Joe gratefully thanks Adam for his sixth opportunity to guest blog!

Payment Plans With Tenants: What to Know


With the ongoing coronavirus pandemic, many landlords are having an especially difficult time collecting rent from tenants. As the courts will be closed for the near future, landlords are best off trying to work out disputes with tenants on their own. Payment plans with tenants are a great option for attempting to resolve non-payment of rent.

Put Everything in Writing

Oral agreements are always problematic, particularly with any matter concerning real estate. With this in mind, repayment plans with tenants should always be in writing, and include the relevant details about the agreement. In particular, these agreements should state the total amount of owed rent, and when payments are to be made. Aim to be as specific as possible.

Reference The Original Tenancy Agreement And Your Intention to Preserve It

Payment plans with tenants should similarly reference the original tenancy agreement, and your intention to preserve it. Landlords need to be careful about entering into an agreement that could be considered a new tenancy agreement. Be clear that the payment plan is just that: an agreement for the tenant to repay the owed rent and preserve the existing tenancy, and not a new lease or tenancy agreement.

Encourage Tenants To Seek Rental Assistance

Given the enormous economic impacts of coronavirus, there are new resources available for tenants who cannot afford rent. Massachusetts’s Residential Assistance for Families in Transition (RAFT) program, for example, provides short-term assistance for tenants facing eviction. Massachusetts has recently increased funding for RAFT and similar tenant protection programs, and I won’t be surprised if additional aid is approved later on.

Landlords should absolutely encourage tenants to apply for such programs during this crisis. Such efforts can help landlords get their rent and avoid an eviction case after the pandemic passes.

Landlords, however, need to carefully review any paperwork for RAFT and other tenant protection programs. Some of these programs impose obligations on landlords, and landlords need to be certain that they can and will comply with any such requirements.

Conclusion

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