Collecting Rent During An Eviction

Massachusetts’s highest court will be issuing a decision in the coming months on an important (and unclear) matter of importance for landlord-tenant law: collecting rent during an eviction. Namely, the court will decide if, during an eviction proceeding, a court can order a tenant to escrow rental payments for the duration of the case.

Information on this case, Davis v. Comerford, can be found here.

Background

The factual background for Davis is common to many Massachusetts eviction cases. Many evictions begin due to a tenant’s non-payment of rent, leaving a landlord without payment as the eviction proceeds. For evictions not involving non-payment of rent, such as a no-fault eviction case, it is not uncommon for tenants to stop paying rent once a case begins.

A common request for landlords in such cases has been to ask for an order that the tenant make use-and-occupancy payments for the duration of the case. These are rental payments that are escrowed while the case goes forward: the money sits in a bank account, and is not withdrawn until the case is resolved. Landlords, of course, want use-and-occupancy payments so there is money available if they win the case.

Trial courts have been generally split on whether they can order rent escrow during an eviction case. Davis is expected to resolve this question.

Legal Arguments For/Against Collecting Rent During An Eviction

The general argument for collecting rent during an eviction is that a tenant should be paying something while the case goes on. Landlords argue that the failure of a court to require such payments will harm landlords, as they won’t have assurance that rent money is available to them at the end of an eviction case.

Opponents of this generally argue that such an order is similar to that of a preliminary injunction; a court order requiring a party to do something prior to the resolution of a case. A preliminary injunction generally requires a showing of “irreparable harm”, such as a loss of property. Loss of money, alone, is generally not enough for a preliminary injunction.

Opponents also argue that there is no Massachusetts law that explicitly requires rent withholding, unlike other states, such as Vermont, which permits this relief.

My Take

I predict that Davis will be decided on a critical (but overlooked) part of this particular eviction case: the tenant’s request for a jury trial. In all Massachusetts eviction cases, a tenant has a right to a jury trial. Choosing this option, almost always, delays an eviction case, as it takes additional time to schedule, select, and seat a jury.

The argument goes that, because a tenant has chosen a jury trial, they should be paying rent for the delay in the case. Without a jury trial, an eviction case usually goes to trial several weeks after it is filed, leading to a much more immediate resolution.

One could argue that a requirement to pay rent as a condition for a jury trial infringes on this sacred right, found in Massachusetts’s constitution. Nonetheless, this appears to be a solid middle ground for this tricky legal question, and I would not be surprised if Davis goes this way.

Conclusion

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

Zoning in Massachusetts: Proposed Legislation

Governor Baker is backing a bill to reform zoning in Massachusetts, which will give local municipalities more flexibility in making zoning changes. This bill is a good example of some important lessons for understanding Massachusetts’s land use laws.

Zoning 101

Zoning in Massachusetts is generally done at the local level, through town and city ordinances. Zoning regulates how an owner may use their property, through usage and dimensional controls.

The proposed bill will allow towns and cities to switch to a majority vote to change local zoning ordinances. Presently, most zoning changes need to be done by a two-thirds vote, which makes enacting such changes a high hurdle to clear. Supporters of the bill argue that it will help create additional housing and make Massachusetts more affordable place to live.

Understanding Zoning in Massachusetts

This proposed bill is a good example of an important lesson regarding Massachusetts zoning: these land use regulations are often not very flexible. Many property owners find that their local zoning regulations can completely prohibit how one wishes to use their property. Sometimes, a seemingly minor regulation can put the brakes on a proposed development.

Zoning in Massachusetts provides exceptions to these regulations, known as variances. It is a common misconception, however, that one merely needs to show hardship to qualify for a variance. Rather, the variance criteria is extensive and requires a high burden to meet, including a showing that the subject property is unique.

This, in my opinion, is one of the driving forces behind this proposed legislation. Since many zoning laws have a “take it or leave it” approach for regulating property, fixing the law itself is really the only way to change the zoning process.

Conclusion

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

What is a Tenant at Sufferance?

Most people familiar with Massachusetts landlord-tenant law know the two most common types of tenancy agreements: a tenancy by lease, where the parties agree to a fixed term for the length of the tenancy, and a tenancy at will, where either party can end the tenancy with proper notice to the other side. A less commonly known tenancy is a tenancy at sufferance.

What is a Tenant at Sufferance?

A tenant at sufferance is a tenant who “stays past their welcome” and remains in a property without the owner’s permission. This most commonly occurs for tenants who remain in rental property after their leases expire. If the landlord does not give the tenant permission to stay past their lease (and, importantly, does not accept rent from them), the tenant becomes a tenant at sufferance.

What’s the difference between a trespasser and a tenant at sufferance? A tenant at sufferance, importantly, once had the property owner’s permission to stay in the property, but no longer does so. A trespasser, on the other hand, never had the owner’s permission to be in the property.

Practical Implications

Although a tenant at sufferance does not have permission to remain in the rental property, a landlord must still bring a formal eviction case to obtain possession. Unlike evictions for other tenancies, a notice to quit is technically not required. Most courts, however, still prefer that the landlord provide some form of notice to the tenant. A 72 hour notice to quit is most common in these scenarios.

A landlord needs to be careful about accepting money from a tenant if they do not want them to stay in the rental property. Accepting money from a tenant can re-create a formal tenancy between the parties and delay the eviction process. A landlord, however, can accept rental money solely for the purposes of use-and-occupancy, so long as they tell the tenant this in writing before accepting it.

A landlord also needs to continue maintaining rental property for a tenant at sufferance. Even though the tenant is in the rental property past their welcome, Massachusetts law still requires compliance with the state sanitary code.

Conclusion

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

Requirement #1 for a Massachusetts Zoning Variance: Unique Conditions

This will be a three part blog series on the requirements for obtaining a variance in Massachusetts.  This first post concerns the first (and often most consequential) variance criterion: a showing that the property has unique conditions.

Overview of Variances

Massachusetts towns and cities regulate the use of property through zoning ordinances, which generally include restrictions on the type of activities permitted on properties, including height, width, and other building dimensions.  A property owner is permitted to apply for an exemption from one of these requirements, known as a variance.

A zoning variance is not granted automatically. Such a request must be decided by a local zoning board, which must find that the applicant complies with all of the requirements for a variance.  Failure to meet any of these criteria will result in a denial.

Requirement #1 for a Variance: Unique Conditions

The first requirement for a variance is a showing that the property has unique conditions.  Specifically, it must be shown that there are “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 . . .”

As I will discuss in my next blog post, a variance requires that the unique condition of the property result in some form of hardship.  A property, for example, that is oddly shaped may qualify for a variance of a setback requirement if such a requirement makes it impossible to reasonably use of the property.

What’s The Purpose of This Zoning Requirement?

It is helpful to understand the purpose of this requirement in order to understand its relevance for a zoning variance. 

If a property is like every other property in its zoning district, the town or city would have considered this when they passed its zoning ordinance. For example, if every property in a zoning district has a narrow width, it is reasonable to think that the town and city took this into account when determining its zoning regulations.  It would be unfair to allow an exemption of one of these requirements if such property was no different than every other one in its location.

The picture I used for this blog post is, obviously, not from Massachusetts.  It’s from the Cliffs of Kerry, one of the most breathtaking locations in Ireland (much better than the more commonly visited Cliffs of Moher).  I include it to make this point: a location like the Cliffs of Kerry is particularly unique, and an example of the kind of property that qualifies for a variance: different than the surrounding property in its location.

Practical Implications

It isn’t necessary, of course, to have land like the cliffs above to get a variance.  It is critical, however, to show something unique about the property.  Failure to satisfy this requirement is one of the most common grounds for denying a variance.

It is a common misconception that mere hardship, on its own, will allow for a variance.  This is incorrect: one must atisfy this first requirement in addition to a showing of hardship from the applicable zoning ordinance.

Conclusion

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

Elderly Parents Facing Foreclosure

I often get consultation requests from adult children whose parents are facing foreclosure. As if foreclosure is not stressful enough already, the potential foreclosure for one’s parents is particularly difficult. Elderly parents facing foreclosure is a sensitive topic that requires appropriate action.

Overview of Foreclosure in Massachusetts

Massachusetts is a non-judicial foreclosure state. This means that a bank is permitted to foreclose a home without going to court, through the sending of legal notices to the homeowner and a public foreclosure auction.

For senior citizens, Massachusetts’s foreclosure process can present a real challenge. It is not uncommon for elderly homeowners to misunderstand these foreclosure notices and get overwhelmed by this situation. Adult children who are helping parents facing foreclosure often tell me that their parents had little recollection about the status of their mortgage loan and the start of the foreclosure process.

Options for Elderly Parents Facing Foreclosure

Elderly parents facing foreclosure need to carefully consider their options. For most homeowners, a loan modification is the best option for attempting to avoid foreclosure. This, however, is not always a viable option for senior citizens, who may be on limited income or not in a position to make loan payments for an extended period of time.

Most lenders, however, do consider a household member’s income when reviewing a borrower for a modification. Seniors who have adult children living with them and earning income may make a loan modification feasible.

Another option for elderly parents facing foreclosure is to simply sell the home. This is something to strongly consider if the home has significant equity in it. Rarely does a foreclosure give the borrower a good financial return from a home sale.

If these options are not feasible, it may also be possible to negotiate a deed in lieu of foreclosure, short sale, or other alternatives for avoiding foreclosure.

Conclusion

I’ve helped many Massachusetts homeowners avoid foreclosure, including elderly parents and senior citizens. If you or your parents need such assistance, contact me for a consultation.

Security Deposit Violations in Massachusetts

Massachusetts heavily regulates security deposits for residential tenancies. The law covers nearly every aspect of the acceptance, holding, and return of a security deposit.

Security deposit violations can occur in many ways. The penalties for not complying with this law can result in a tenant being entitled to the immediate return of their deposit or, in severe cases, treble damages, costs, and attorney fees against the landlord. Here are some common security deposit violations.

Please note that this list is not all of the security deposit requirements; one should always consult the law (or a landlord-tenant lawyer) to ensure compliance with this detailed law.

Proper Receipt

A landlord must give the tenant a receipt indicating, among other things, the amount collected for a security deposit and the name of the person receiving it. This receipt must include the date on which the deposit is received and a description of the rented premises. The landlord (or the landlord’s agent) must sign this receipt.

Separate Bank Account

The landlord must put this security deposit into a separate bank account, located in Massachusetts. Within thirty days of depositing these funds, the landlord must provide the tenant with name and location of this bank and the bank account number.

Timely Return of the Security Deposit

Most security deposit violations occur during the process of returning the security deposit. A landlord may only keep a portion of a security deposit for 1) unpaid rent or water charges 2) unpaid increase in real estate taxes which the tenant is obligated to pay (rare for most residential tenancies) or 3) a reasonable amount necessary to repair any damage to the rental unit, reasonable wear and tear excluded.

Any portion of the security deposit that the landlord is not entitled to keep must be returned to the tenant within thirty days after the end of the tenancy. Failure to do so is one of the most severe violations of the security deposit law, and will likely subject a landlord to the maximum penalties available under the law.

Conclusion

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

Appealing a Variance in Massachusetts

Appealing a Variance in Massachusetts

Like most states, zoning decisions in Massachusetts are primarily made at the local level, through municipal boards.  One of the most common types of zoning decisions are requests for variances. While a municipal board (commonly called the zoning board of appeals in most towns and cities) makes the decision on whether to grant a variance, such a decision can be appealed.

What is a Variance?

A variance is an exemption from a zoning requirement. Zoning ordinances regulate how a land owner may use their property, which typically includes regulations on the allowed uses and activities.

A property owner has a right to seek an exemption from a zoning requirement by applying through a variance. A variance requires the following:

[T]hat owing 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.

In short, a variance requires that the property have something unique about it, and due to this condition, the property owner will suffer hardship if forced to comply with the zoning ordinance.

Appealing a Variance

The decision to grant a variance is generally made by the local zoning board of appeals (“ZBA”). Such decisions are done at open public meetings, with members of the community permitted to speak in favor or in opposition of the request. After a decision is made, the ZBA issues a written decision stating its reasons for approval or denial.

A party aggrieved by a variance decision has a right to appeal. Such an appeal is made to either Superior Court or, most commonly, to Land Court. In such an appeal, the court hears all evidence about the variance and issues a decision upholding or denying the variance.

Practical Implications

What’s the most important thing to know about appealing a variance? Act quickly. There is a short deadline for filing such an appeal, and a detailed process for doing so. Failure to comply with these requirements can be grounds for immediate dismissal of an appeal.

Not anyone can appeal a variance. Only a person “aggrieved” by such a decision may do so. The issue of whether a person can bring such a claim (known legally as whether the party has standing) needs to be determined carefully. Simply not agreeing with a zoning decision, on its own, is not enough to bring an appeal.

Appealing a variance requires a thorough knowledge of the applicable law and underlining property. For this reason, one should strongly consider hiring an experienced lawyer for such a matter.

Conclusion

If you need help with a variance, contact me for a consultation.

3 Things Massachusetts Landlords Can Do To Stay Out of Trouble

Being a Massachusetts landlord isn’t easy. Our state has extensive regulations on the landlord-tenant relationship, and many laws in favor of tenants. Here, I want to share three tips for Massachusetts landlords that can help avoid legal problems down the road.

1.Choose Good Tenants

The selection of tenants is one of, if not the most, important part of the landlord-tenant process. Good tenants pay their rent, respect rental property, and are a pleasure to deal with. Bad tenants are just the opposite.

The important reason for choosing good tenants is to avoid the eviction process, at all costs. Evictions in Massachusetts are expensive and often favor the tenant. Rarely do Massachusetts landlords ever come out completely whole at the end of the process. Picking good tenants is the best way to avoid an eviction from happening in the first place.

2.Keep Great Records

As a landlord, you are running a business. You should treat it like that by keeping extensive, detailed records on everything about your rental properties. This includes the lease and other paperwork signed at the start of the tenancy, a ledger of all rent received from your tenants, and any repairs or maintenance you perform on the property.

Massachusetts landlords who keep good records save themselves enormous time, money, and liability if a dispute ever arises with a tenant. For example, if a tenant complains that a landlord never maintained their property, detailed records on a landlord’s maintenance and repairs can quickly refute such a claim.

3.Don’t Take a Security Deposit!

As I’ve written before, Massachusetts’s security deposit law is long, detailed, and nearly impossible to fully comply with. Rarely have I seen Massachusetts landlords follow each provision of this law, and the failure to do so can result in huge penalties.

What’s the best way to avoid this? Don’t take a security deposit in the first place.

Conclusion

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

Attorney Sherwin To File Adverse Possession Case for Washington D.C. Republicans, Democrats

April is going to be a busy month for me. In a rare case of bipartisanship, a group of Republican and Democratic Senators (who have been in Washington D.C. for over twenty years) have hired me to file an adverse possession lawsuit for them, seeking permanent ownership of Capitol Hill.

Adverse possession is a legal claim where a party can obtain someone else’s property without their possession if they use it as their own for a period of time (twenty years in Massachusetts). A critical requirement is that such use must be hostile: against the permission of the lawful owner.

These politicians have a great case. By staying in Washington for so long, without doing anything for their constituents, there is a good case that these politicians’ use of Capitol Hill for the past twenty years has been hostile.

“Getting reelected to Congress is a lot of work,” said one Republican Senator, who asked to remain anonymous. “It is much easier to hire Attorney Sherwin, who we are confident can make a compelling case that we haven’t done anything for the last twenty years.”

” I rarely agree with Republicans,” said a Democratic Senator, who also asked to remain anonymous.” “But, if there is one thing that all D.C. politicians agree on, it’s that we have a right to stay here forever.”

As a real estate litigator who has tried successful adverse possession cases in the past, I’m looking forward to this case. More information about this matter can be found here.

Preventing Foreclosure in Massachusetts: 3 Success Stories

Challenging a Foreclosure

Whenever I meet with a potential client, I always ask a critical question: what is your goal for my legal representation? In other words, if I take your case, what do you want to get out it? This question is especially important for foreclosure defense.

As I tell all potential clients involved in foreclosure, no one gets a free home from fighting a foreclosure. While a successful legal challenge can prevent or undo a foreclosure that is not compliant with the law, nothing prevents a lender from simply starting the process again. With this in mind, the goal of foreclosure defense should always be a permanent resolution to the problem . . . not a temporary fix.

Here, I want to share three stories of how I have been able to help Massachusetts homeowners with preventing foreclosure. To protect privacy, I have changed each client’s name and location, but the underlining facts of each case are the same.

Preventing Foreclosure Through a Loan Modification

Meet Matt. Matt owned a two-family home in Saugus that was foreclosed in 2016. While he tried for years to work with his lender to avoid foreclosure, the loan servicer kept losing his loan modification applications and giving him excuses about why he didn’t qualify for foreclosure relief assistance. After foreclosure, the bank brought a post-foreclosure eviction case against him, at which time he retained me.

I challenged the bank’s case against him by arguing that it never served him with a proper notice to quit, and failed to provide him notice that he did qualify for a loan modification. The Court agreed that Matt never received the proper notice, which forced the bank to start the eviction case all over again.

In the end, we were able to negotiate a favorable loan modification for Matt, and a rescission (“undoing”) of the foreclosure sale!

Preventing Foreclosure Through Refinancing

Meet Tom. Tom inherited his parents’ home in Jamaica Plain several years ago, which had a past-due mortgage loan on it. Tom tried, repeatedly, to work with the lender to take over the loan and make these payments. Incredibly, the lender, at one point, outright refused to accept Tom’s payments towards the loan.

Tom retained me a month before the scheduled foreclosure sale, and I filed a lawsuit to stop the sale and for damages from the bank’s unfair and deceptive business practices. I succeeded in stopping the sale, and then began working with the bank to reach a settlement for this matter.

Tom was in a unique situation: he was fighting a foreclosure against a mortgage loan that wasn’t his. While he owned the home, the loan was from his deceased parents. I had Tom speak to several other mortgage lenders, and got him approved for financing. I then negotiated with the bank to accept a lower amount of the total owed debt, which the bank agreed to (at an amount far less than the home’s fair market value). Not only did Tom avoid foreclosure, this deal put instant equity into his home!

Preventing Foreclosure Through a Sale of the Home

Meet Jane. Jane owned a home in Beverly and was behind on her mortgage loan, due to lost employment. Jane was in the process of applying for a loan modification when her lender foreclosed, despite promising it would not do so.

Jane hired me to see what could be done. After we reviewed her options, we agreed that her best option wasn’t to keep the home, but rather, to sell it. The home was in a good neighborhood and would sell at a great price.

Since the foreclosure had already happened, I filed a lawsuit and requested an emergency court order to prevent the bank from selling the home again, which the Court granted. In the end, we reached a deal where the bank agreed to reverse the foreclosure and allow Jane to sell the home, which she did. Jane not only avoided foreclosure, but was able to recover significant equity from her home . . . money that would have been lost if the foreclosure had gone through.

Conclusion

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