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

Getting Back a Security Deposit in Massachusetts

It is not uncommon for Massachusetts landlords to accept  security deposits from tenants.  In doing so, many make mistakes in complying with Massachusetts’s security deposit law; arguably one of the most complex and detailed laws in the state.

This law provides numerous protections that can help tenants with getting a security deposit back if a landlord unreasonably refuses to return it.

Overview of the Massachusetts Security Deposit Law

Massachusetts’s security deposit law regulates how a landlord is allowed to collect and hold a tenant’s security deposit.  Skim through this law and you’ll see that almost everything concerning a security deposit is subject to one of this law’s provisions.  The amount of the security deposit, bank account where it can be held, and the return of the deposit are all covered by this law.

Failure to comply with Massachusetts’s security deposit law has dire consequences for landlords.  Penalties can include treble damages, court costs, and attorney fees.  This means that even a small security deposit violation can lead to a large judgement for non-compliance with this law.

Penalties for Not Complying with the Security Deposit Law

Penalties for not complying with this law generally fall into two categories: forfeiture of the deposit or treble damages.

The first type of penalty, forfeiture, allows a tenant to get their deposit back right away if the landlord fails to comply with certain portions of the law, and the tenant demands the deposit’s return.  If a landlord does not immediately return the deposit, they risk subjecting themselves to the more severe penalties under this law.

The second category of damages are treble damages, which are reserved for the most egregious violations of the security deposit law.  Most common is a landlord’s failure to return the deposit (or account for its use) within thirty days after the tenancy ends.

Options for Getting Back a Security Deposit 

A common way for raising a security deposit claim is through a Consumer Protection Law demand letter.  Such a demand letter can be an effective means of getting a prompt resolution to one of these disputes.  Moreover, a landlord’s failure to respond to such a letter with a reasonable settlement offer can be further grounds for liability.

Security deposit claims can be pursued in small claims court or in a civil action.  To do so, a tenant should strongly consider speaking with an experienced landlord-tenant attorney about one of these matters.

Conclusion 

If you need help with getting back a security deposit in Massachusetts, contact me for a consultation.

Lessons from a Massachusetts Adverse Possession Case

Adverse Possession

The Massachusetts Appeals Court issued an important decision this week concerning adverse possession and easements by prescription.  The decision, Smaland Beach Association v. Genova, is included below.

This decision concerns beach access . . . a common source of these cases.  The case also involves many other areas of property law, but my blog post here will stick to the parts of the decision relevant to adverse possession.

Overview of Adverse Possession/Easement by Prescription 

Adverse possession is a legal claim that allows a party to acquire other property if it uses it without permission of the legal owner.  In Massachusetts, such use must occur continuously for twenty years.   Importantly, such a claim requires exclusive use, with no one else having similarly used the property.

A claim of easement by prescription is similar to adverse possession, but without the requirement of exclusive use.  A easement by prescription allows a party permanent use (as opposed to ownership) of property.  These claims are common for disputes involving water access and parking.

Smaland Beach has some important lessons for litigating these kinds of cases.

Lesson #1: Facts Matter

Adverse possession cases are highly, highly factual cases.  It is not uncommon for these disputes to get into the weeds (no pun intended!) of the disputed property and concern even the smallest portions of the disputed land.

In this case, the party opposing this claim attempted to argue that the claimant’s case should have not been decided by the jury, arguing they did not present sufficient evidence to make such a claim.  The Appeals Court rejected this argument, by recognizing that such claims are questions of fact, and often need to be resolved at trial.

This is an important lesson for one of these cases: assume the dispute will go to trial, and plan accordingly by making a detailed and consistent narrative of the requirements for one of these claims.

Lesson #2: Unexplained Use of Property Creates a Presumption of Adverse Use

Smaland Beach Association reaffirms a long standing presumption for adverse possession: longstanding unexplained use of property creates a presumption that such use is adverse (non-permissive).

This presumption is highly important for a successful claim.  Adverse use is a requirement for one of these claims, and this presumption helps a claimant make this required showing.  After doing so, the party opposing such a claim has the burden to overcome this presumption, and show that such use was allowed.

Lesson #3: All Necessary Parties Must Be Part of an Adverse Possession Case

Finally, Smaland Beach Association is a reminder that, in an adverse possession case, any persons whose property may fall under such a claim must be part of the action.

This isn’t that unique to an adverse possession case; in any civil action, a failure to join a necessary party can be grounds for dismissing a lawsuit.  I suspect, however, that given the implications of adverse possession to property owners, this rule is even more strictly applied.

Conclusion

If you find yourself involved in a property dispute concerning adverse possession, contact me for a consultation.

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Zoning Enforcement 101: Lessons from a Baaad Outcome Before a Zoning Board

A recent decision from the Town of Danver’s Board of Appeals demonstrates the importance of Massachusetts zoning restrictions, and their relevance to property owners.  This case, involving a homeowner’s keeping of goats on their property, shows how baaad things can happen for not following local zoning controls (pun intended!).

Overview

The homeowners in this case had been raising goats in their Danvers home for the last six years.  Danvers, like most towns and cities in Massachusetts, uses zoning districts to classify  what is allowed, and not allowed, in various sections of the municipality.

The problem in this case?  This residential zoning district prohibits “animal husbandry.”

Zoning Enforcement 

A neighbor started this action by making a complaint to the Town of Danvers, through a request to enforce this zoning requirement against the goat owners.  Massachusetts law requires that towns and cities have officials in charge of enforcing zoning restrictions (often designated as building inspectors) and the law allows for written enforcement requests to these officials, if someone believes they are not being followed.

Here, the Town of Danvers agreed with this complaining neighbor, and issued the homeowners an order that the goats needed to go.

Appeal of a Zoning Enforcement Decision 

Massachusetts law allows any “person aggrieved” by a zoning enforcement action to appeal, which is generally made to the town or city’s zoning board of appeals.  Such an appeal asks the board to determine whether the town or city properly applied the zoning ordinance.

Here, the Town of Danvers Zoning Board of Appeals unanimously agreed with the town’s building inspector that goats were not allowed in this residential district.

This homeowner still has options if she wishes to pursue this matter further.  She could file a court action to determine if this interpretation of the zoning ordinance is correct.  Or, as the article suggests, she could work to change the town’s zoning laws, to allow goats in residential districts.

Practical Implications 

This story illustrates the importance of zoning enforcement in Massachusetts, the process for requesting such enforcement, and appealing an unfavorable decision.  Many homeowners are unaware of the many, many ways that zoning restrictions regulate how one can use their property.  Failure to abide by these land use controls can lead to zoning enforcement consequences.

It is important to note that, in most cases, a homeowner is not permitted to seek a variance for a prohibited use in a zoning district.  A variance, which is a requested exemption from a zoning restriction, may be allowed for terms of a zoning ordnance, but not for “a use or activity not otherwise permitted in the district in which the land or structure is located . . .”  Property owners need to be aware that the variance process, which allows leeway in particular circumstances where a zoning restriction imposes a hardship, is not an option where a requested use is expressly prohibited. 

Conclusion 

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

Help for Landlords With Bad Tenants in Massachusetts

Landlords with bad tenants are often in need of immediate resolutions to their problems.  While a landlord must bring an eviction case against a tenant to get a tenant out of a rental unit, a landlord has other options for dealing with a bad tenant prior to the conclusion of an eviction case.  A “bad tenant” is one I define as someone who is (a) not paying rent or (2) damaging the rental premise.

Rent Escrow

One of the most common reasons for evicting a tenant is non-payment of rent.  Although an eviction case is intended to proceed quickly, many times, the final resolution of these cases can be delayed due to the trial court’s schedule or a tenant’s request for a jury trial.

In such a scenario, where the trial date is not imminent, a landlord can (and should) request that the court order the tenant to escrow rent as the court case proceeds.  The rationale is straightforward: if the tenant is living at the rental unit, it is reasonable for them to pay something as the eviction case proceeds.

The law on rent escrow is divided, and requires a convincing argument to obtain this relief.  Simply arguing for a rent escrow, without citing the proper authority, will likely not be enough to convince a court on this point.

Injunctive Relief 

Another important tool for landlords with bad tenants is seeking injunctive relief.  Injunctive relief is a court order requiring or preventing a party from doing something.  For example, if a tenant is purposely damaging a rental unit, a landlord is permitted to ask for an injunction prohibiting the tenant from doing so.  A tenant who disregards such a court order can be subject to contempt of court and other harsh penalties.

No Self-Help

An important reminder for landlords with bad tenants.  A landlord cannot, under any circumstances, use “self-help” methods to evict or punish a tenant.  Changing an apartment’s locks or shutting off the utilities is highly illegal in Massachusetts and can result not only in large penalties from the court, but criminal punishment as well.

Don’t take this chance!  Contact an experienced landlord/tenant attorney when dealing with bad tenants.

What Is Needed for a Declaratory Judgment in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision last week on what is needed for a declaratory judgment.  The decision comes from a foreclosure law case, but just as easily applies to other areas of law.  The decision, Wells Fargo v. Mulvey, is included below.

What is a Declaratory Judgment?

A declaratory judgment, simply put, is a court order that resolves a legal uncertainty.  Pursuant to G.L. c 231A, § 1:

The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not . . .

Declaratory judgments are often requested when the desired remedy for a case is more than simply money.  For example, in the context of foreclosure defense, money alone will not help someone who wrongfully lost their home to foreclosure . . . that party wants the home back, not money.  In such a case, the party can request a declaratory judgment stating that the foreclosure was wrongful, which has the full force of law.

For real estate cases, declaratory judgments are often recorded in the land records, which becomes part of the property’s title.

Overview of Case

In this case, Wells Fargo requested a declaratory judgment as to whether it could perform a non-judicial foreclosure against a homeowner.  The bank was concerned that its mortgage did not include the necessary language permitting such a foreclosure.

Importantly, the home owner in this case never filed an answer or response to the bank’s motion.  The bank sought a default judgment and requested what it asked for: a declaratory judgment allowing it to foreclose.

What is Needed for a Declaratory Judgment?

Not so fast, said the Court!  Although the homeowner never responded to the lawsuit, the court, on its own, declined to give the bank a declaratory judgment.  The reason for doing so answers this important question: what is needed for a declaratory judgment?

A declaratory judgment requires there to be an actual controversy for a court to resolve.  Here, because the bank presented no evidence to conclude that its right to foreclose against the homeowner was in question, this was not a matter appropriate for a declaratory judgment.

Practical Implications

As someone who often requests declaratory judgments in my cases, this decision is an important reminder of the need to properly prepare such lawsuits.  Failure to do so can result in dismissal of the case.  This decision is clear that a court can do this entirely on their own, even if the opposing party never raises this concern.

If you find yourself involved in a legal dispute concerning a declaratory judgment, contact me for a consultation.

Wells Fargo v. Mulvey