Five Things That All Massachusetts Landlords Need to Know

Being a Massachusetts landlord isn’t easy.   There are many, many cases of landlords who have run afoul of the state’s numerous laws regulating landlord conduct; most of which favor the tenant.  Here are five things that  every Massachusetts landlord needs to know.

1. A Landlord is Responsible for Maintaining Rental Property

While this may be obvious to most landlords, it is worth a mention here.  A landlord is responsible for maintaining their rental property, including compliance with the state’s sanitary code.

This is in contrast to commercial real estate, where a landlord is permitted to offer a property “as is.”  Doing this is strictly prohibited for residential property; even if a landlord and tenant signed an agreement that excused a landlord from taking care of a rental property, it would be void and unenforceable at law.

2. Fair Housing Laws Exist  (And Are Enforced)

Both federal and Massachusetts law ban housing discrimination.  Housing discrimination laws are enforced, and come with steep penalties for landlords who violate these provisions.  A Massachusetts landlord needs to know these laws and be aware of the kind of conduct that violates these regulations.  

3. Security Deposits Are Heavily Regulated in Massachusetts

Massachusetts’s security deposit law is among the most complex and confusing laws in the state, filled with traps for the unwary.   Few Massachusetts landlords fully comply with its provisions, and failure to do so can result in treble damages, attorney fees, and costs against a landlord.  Massachusetts landlords should strongly consider not taking a security deposit.  If they do, it is essential that they learn and abide by this law’s detailed requirements. 

4. Good Tenants Are a Good Investment 

What’s the best way to avoid problems with tenants?  Choose good tenants.  The extra time and expense in picking good candidates for rental units are worth its expense, many, many times over. 

5. Evictions Are Costly

Massachusetts law permits a landlord to bring an eviction against a tenant for outstanding rent, and a civil action for damage to a rental unit.  However, even under the best case scenario, it is rare for a landlord to be made completely whole through an eviction proceeding or lawsuit.  The expenses of bringing such a case, and the difficulties of enforcing one of these judgments, are factors that every Massachusetts landlord needs to know.

Conclusion

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

Massachusetts Zoning: What You Need to Know

A recent article about Medford, concerning the challenges of getting past the city’s land use controls, is a good example of the importance of understanding Massachusetts zoning when seeking to develop property.  The article discusses many of the hurdles that can arise when attempting to seek zoning approval from a local municipality.

Overview of Massachusetts Zoning

Zoning are rules and regulations controlling how one uses their property.  The purpose of zoning is to keep order and consistency within municipalities.  Visit a city without zoning controls and you’ll see the reason why such regulations are in place.

Zoning ordinances generally consist of dimensional and use controls for real property.  As discussed in this article, these ordinances are often complex and highly detailed.

Exemptions from Massachusetts Zoning 

Massachusetts zoning often becomes an issue when a property owner is unable to comply with a zoning ordinance.  In such a case, a variance is required.  A variance requires a finding that:

[O]wing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

Additionally, some uses under a town or city’s zoning ordinance require specific approval by a local zoning permitting authority, known as a special permit.  The requirements for a special permit are not as rigorous as a variance, but a special permit must still be approved by the appropriate town or city board (often the zoning board of appeals or planning board).

In addition to zoning, there are often other regulations concerning real estate development, including environmental, historic preservation, and affordable housing requirements.

Conclusion

Massachusetts zoning requirements can be confusing.  For assistance with this process, consider speaking with an experienced real estate litigation attorney, who can assist with this process. 

Chapter 93A for Landlords and Tenants

The Appeals Court issued an important decision this week about the Consumer Protection Law (commonly known as “Chapter 93A”, in reference to its location in the state law) and its potential application for landlords and tenants.  The decision, Exhibit Source, Inc. v. Wells Avenue Business Center, is included below.

This decision concerns a dispute involving a commercial landlord-tenant relationship.  Nonetheless, this case has important lessons in the context of Chapter 93A for landlords and tenants with residential tenancies.

Overview of Chapter 93A

Chapter 93A prohibits “unfair or deceptive” business practices.  There are two main parts of this law: Section 9, for unfair or deceptive practices between consumers and businesses, and Section 11,  for unfair or deceptive practices between businesses.  While the concept of the law is generally the same for both sections, the requirements for each are slightly different.  Here, I’ll be focusing on Section 9.

“Unfair or deceptive” business practices is purposely intended to be broad, and allows for a wide array of potential applications.  Chapter 93A allows for monetary damages for violation of this law, and possible treble damages if the conduct was willful or knowing.  The law, importantly, allows for attorney fees as well.

For a consumer to bring a Chapter 93A case, they must send the business a demand letter first and allow them thirty days to respond, before filing suit.  This letter is not required if the consumer is bringing a Chapter 93A case as a counterclaim (a lawsuit filed in response to an existing lawsuit).  A letter is also not required if the business does not have an office or assets in Massachusetts.

This demand letter is a critical requirement for a Chapter 93A case.  Failure to comply with this requirement is often grounds for dismissal.

Chapter 93A for Landlords and Tenants

Exhibit Source, Inc. has several important lessons on how Chapter 93A applies to landlords and tenants.

First, Exhibit Source, Inc. is a good example of  Chapter 93A’s breadth.  Many acts, which might not otherwise be unlawful, can fall within the context of Chapter 93A, making it a powerful tool in pursuing a landlord-tenant dispute.

Second, Exhibit Source, Inc. discusses a central goal of this law: encouraging parties to settle their disputes without going to court.  If a party fails to offer a reasonable settlement offer in response to a Chapter 93A claim, the court can (and most likely will) punish them for this.

For this reason, a landlord who receives a Chapter 93A demand letter needs to properly address it.  Failure to do so can lead to much greater problems later on if the matter winds up in court.

Conclusion

If you need assistance with a Chapter 93A matter, contact me for a consultation.

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Getting Possession of a Rental Unit

Getting possession of a rental unit is the primary goal of an eviction case.  A successful eviction case allows a landlord to legally remove the tenant and their possessions from the rental unit.  The formal court order that allows the landlord to do so is known as an execution, and the process of using this court order for getting possession of a rental unit is commonly referred to as levying the execution.

Evictions 101

Eviction (known in Massachusetts as “summary process” cases) is the required, legal proceeding for obtaining possession of property.  Massachusetts (like nearly all states) is a judicial eviction state: one must bring a formal court proceeding to remove a tenant.  Attempting to remove a tenant without a court order, commonly known as a “self help” eviction, is a serious offense.

If the landlord wins the eviction case, or reaches an agreement for the tenant to move, the court will issue an execution for possession.  This is the court order that permits a landlord to physically remove a tenant and their possessions from the rental unit.

Levying the Execution 

 The actual process of getting possession of a rental unit is commonly known as levying the execution.  The tenant must be given 48 hours notice prior to the move out, and service of this notice must be made by a constable or sheriff.  Levying an execution requires the landlord to pay for the moving and storage expenses.  Needless to say, these expenses can add up.

Stay of Execution

A tenant is permitted to request a stay of execution if they believe they need more time to find a new place to live.  The law is written to apply only for tenants involved in a “no-fault” eviction case, where the tenant is not behind on their rent or in violation of a term of their tenancy.  Courts, however, commonly consider stays of execution for all types of tenancies, on the theory that courts have inherent power to manage the eviction process.

Conclusion

Getting possession of a rental unit is not an easy process, and if done incorrectly, can result in enormous costs and expenses that could otherwise be avoided.  For this reason, speak to an experienced landlord-tenant attorney for assistance with such a matter.

Collecting Money Against a Tenant

I’m willing to bet that the issue of collecting money against a tenant is one of the most frequent topics that landlords ask regarding tenants.  This is an important matter that landlords should carefully consider when faced with such a problem.

What Type of Money Is Being Pursued?

On this topic, the first initial question that needs to be determined is the type of money that the landlord wishes to pursue against the tenant.  Generally, there are three types of damages: (1) unpaid rent (2) damages to the apartment and (3) attorney fees.

The first two types of owed money, unpaid rent and damages to the apartment, speak for themselves: if a tenant owes a landlord money, or damages the apartment, the landlord has a legal cause of action against the tenant.

Attorney fees are a different matter.  A landlord generally only has a right to collect attorney fees against a tenant if there is a written agreement providing for this.  If there is no such agreement, the American Rule on legal fees generally controls, which does not allow a party to collect legal fees against an opposing party.

Options for Collecting Money Against a Tenant 

Options for collecting money against a tenant generally consist of the following: (1) a security deposit (2) eviction case or (3) a civil action.

Security DepositMassachusetts’s security deposit law permits a landlord to use a security deposit for unpaid rent and damage to a rental unit.  If a landlord has a security deposit, and a tenant owes rent or has committed damage to the apartment, a landlord (using the proper procedures) may deduct such expenses against the deposit.  A landlord, however, must be extremely careful in handling a security deposit, as a failure to comply with this law can result in treble damages, costs, and attorney fees.

Eviction:  If a landlord is pursuing an eviction against a tenant, they have the option of seeking unpaid rent as part of the eviction case.  This, however, is the only money that may be pursued in an eviction : a landlord is not entitled to any other damages in one of these cases, such as damages to an apartment.  For that, the landlord must pursue a separate civil action.

Civil Action:  A landlord may pursue a civil action against a tenant for any type of owed money.  If the damages are under $7,000, the landlord can go to small claims court; if the damages are greater, they would need to file a regular civil action.

Practical Implications

While a landlord can attempt to collect money against a tenant, doing so is not always prudent.  If the tenant does not have employment or assets, attempting to enforce a judgment against a tenant can be extremely difficult.

Moreover, in the context of an eviction, it is worth considering whether collecting such money is more important than obtaining immediate possession of the apartment.  This is an important consideration in determining whether to fight or settle an eviction case with a tenant.

Conclusion 

Collecting money against a tenant is not an easy endeavor.  Before making a decision on this important topic, speak to an experienced landlord-tenant attorney for help in making this decision.

Attorney Sherwin Named as a 2018 Massachusetts Super Lawyers Rising Star

I’m proud to write that I’ve been named as a 2018 Massachusetts Rising Star by Super Lawyers.  Rising Star candidates are limited to no more than 2.5% of lawyers in Massachusetts and go through a nomination, peer review, and independent research process.

As described by Super Lawyers on their website:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

I’m very proud and grateful for this recognition.

Coincidentally, this recognition occurred right around the time that I celebrated my fifth year in solo practice.  What a ride it has been!  While it is a real honor to be included with Super Lawyers, I’m even prouder of the many successes I’ve had in in my practice areas of real estate litigation.

If I can be of assistance to you with your legal problems, contact me.

Fighting Foreclosure: Lessons from a Massachusetts Federal Court Case

A recent decision from the U.S. First Circuit Court of Appeals provides an important lesson on fighting foreclosure and the importance of properly preparing such a defense.  The case, Klimowicz v. Deutsche Bank, is included below.

Background

Massachusetts is a non-judicial foreclosure state.  Unlike judicial foreclosure states, such as New York and Vermont, a lender does not need to bring a court case to foreclose.  Rather, a lender can foreclose through a series of notices and publications.

In Klimowicz, the homeowner went through a non-judicial foreclosure and the lender, Deutsche Bank, became the record owner of the home following the foreclosure sale.  Deutsche Bank then brought an eviction (“summary process”) case against the former homeowner for possession of the property.

Massachusetts permits defendants in a post-foreclosure eviction case to raise defenses against the validity of the foreclosure sale.  If successful, a homeowner can defeat a bank’s right to possession of the property.  In this case, the homeowner did just that, and attempted to argue that the foreclosure was void due to problems with the mortgage assignment.

The homeowner lost this eviction, and failed to appeal this case.

Federal Court Lawsuit 

Following this unsuccessful eviction case, this homeowner continued fighting foreclosure through a federal court lawsuit.

By way of brief background, federal courts are permitted to hear state court matters under specific circumstances, including what is known as diversity jurisdiction: where the parties live in different states.  Diversity jurisdiction is common in foreclosure defense cases, as the homeowner and bank tend to be in different states.

In this case, the homeowner attempted to pursue her foreclosure defense case in federal court, by essentially arguing the same claims raised in her eviction case.  The federal court dismissed this lawsuit, and the appeals court agreed that the homeowner was not entitled to pursue this federal court action.

The main basis of this dismissal is a federal law concept known as the Rooker-Feldman Doctrine.  In a nutshell, this doctrine prevents federal courts from hearing cases brought by parties who have lost in state court.  In other words, as the homeowner had lost her case in the state eviction case, she was not able to pursue it again in federal court.  If the homeowner had wished to continue fighting foreclosure, she needed to have appealed her eviction case, rather than starting a federal court lawsuit.

Although not discussed in Klimowicz, another basis for denying this federal court lawsuit was res judicata.  This legal defense prevents a party from getting a “second bite at the apple” by bringing a claim that was decided (or could have been decided) in a prior claim involving the same parties.

Practical Implications

Klimowicz has an important lesson for homeowners fighting foreclosure: it is incredibly difficult to have a second chance in defending against a foreclosure, if the homeowner is unsuccessful in their first court case.  There are many, many similar cases like this where courts have denied homeowners their day in court because their foreclosure defense claims (no matter how strong or compelling) were, or could have been, raised before.  There are few “second chances” to defend against a foreclosure.

Conclusion 

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

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Housing Discrimination in Massachusetts: A “Ruff” Lesson On This Important Area of Law

A recent case from Western Massachusetts of a landlord refusing to rent to tenants with service animals is an example of the perils of ignoring state and federal housing discrimination laws, and a reason why landlords need to be extremely careful when advertising rental units.  Discriminating against tenants with service animals will put landlords in the doghouse (pun intended!).

Housing Discrimination 101

Both state and federal law prohibits discrimination in housing.  This includes, but is not limited to: race, national origin, sex, and disability status.  The list of these protected categories is long, and it is best to check on this by reviewing the state and federal government websites on fair housing laws, which do a good job of explaining the basics about housing discrimination.  Simply put, a landlord is not allowed to deny a tenant housing based on one of these protected categories.

In this case, the landlord advertised that it would not accept pets or service animals.  While a restriction on pets is generally okay (and common) for rental units, the latter is a big no-no: a blanket restriction on service animals is discrimination on the basis of disability.

Practical Implications

Although the landlord in this story was likely fine in not allowing tenants with pets, it was not lawful to outright prohibit service animals.  If a tenant with a service animal wished to apply for a rental unit, the landlord would have to consider them for a reasonable accommodation.  If the landlord fails to properly consider this request, this is housing discrimination.

The increased use of service dogs promises that this will be an issue for years to come.  While every situation is different, I would imagine that most landlords will have difficulty making a case that a service dog is not a reasonable accommodation.  Landlords who fail to take this issue seriously set themselves up for severe damages and penalties.

In this case, the penalty against the landlord was likely not as bad as it could have been.  It is not unheard of for housing discrimination cases in Massachusetts to result in steep damages for landlords.

Conclusion 

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

Appealing a Zoning Decision: Timing is Everything

foreclosure appeal

The Massachusetts Appeals Court issued an important decision this week on appealing a zoning decision in Massachusetts.  This case demonstrates the critical importance of timely appealing such a matter.  The case, McIntyre v. Zoning Board of Appeals of Braintree, is included below.

Overview

The facts of this case are fairly straightforward.  In Braintree, a building inspector (who was responsible for enforcing the city’s zoning requirements) issued a building permit.  An abutter of the property that received this building permit appeal this decision.

This type of appeal, commonly known as an administrative appeal, is allowed under Massachusetts law and usually must be made to the town or city’s zoning board of appeals.  This type of appeal determines whether the building inspector (or zoning enforcement officer) correctly interpreted the applicable zoning requirements.

An administrative appeal is also allowed when the zoning officer refuses to enforce a zoning requirement, and an aggrieved party believes that this non-action violates the zoning requirements.

An administrative appeal is different than a request for a variance, where a property owner is seeking an exemption from a zoning requirement.  An administrative appeal simply determines whether the applicable zoning requirements were correctly interpreted. 

Deadline for Appealing a Zoning Decision 

Appealing a zoning administrative decision comes with a strict deadline: “thirty days from the date of the order or decision which is being appealed.”  As the Appeals Court explained, this deadline is “strictly enforced and is a jurisdictional prerequisite to the board’s jurisdiction to hear an appeal.”

Here, the party seeking to appeal the building permit filed their appeal forty-four days after learning about the building permit . . . well after the thirty-day deadline.   

To avoid dismissal of their appeal, this party tried a creative argument.  Under Massachusetts law, if a zoning board of appeals fails to issue a decision on an administrative appeal within 100 days after the filed appeal, a party can win their appeal through a process known as constructive approval.

In this case, the board of appeals held that the party failed to timely file their appeal of this administrative decision.   However, the board failed to issue its decision within the 100 day deadline.  As such, the party argued that a constructive approval occurred.  This party argued that, because a constructive approval occurred, it did not matter that they missed the original thirty-day deadline.

Decision and Practical Implications

The Appeals Court rejected this argument, holding that a party needs to meet the thirty-day deadline in order to pursue an administrative appeal.  Although constructive approval is a recognized means of winning an appeal when a board of appeals fails to act, this is not an excuse for ignoring the thirty-day deadline under G.L. c. 40A, § 15.

This case has an important lesson for appealing a zoning decision: deadlines matter.  This is in keeping with other Massachusetts decisions, where the failure to satisfy such a deadline can be fatal to one’s case.

Conclusion 

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

 

McIntyre v. Zoning Board of Appeals of Braintree