Choosing a Landlord Attorney

Choosing a landlord attorney can be a critical decision for your landlord-tenant dispute. Among the many things to keep in mind is how your attorney will attempt to resolve your case as affordably as possible.

You may be wondering why this blog post includes a picture of a table above. It is not simply because I built it myself (although I am proud of it!). Rather, it demonstrates an important part of my approach when representing all clients, especially landlords.

When I’m not lawyering, I enjoy woodworking. I’ve built a great workshop and have constructed some good pieces of furniture, including the table above. This table is made from a piece of California redwood that my wife and I purchased during our last vacation. With some power tools and a lot of elbow grease, I turned it into a great addition for our home.

Not everything I make is of this quality. Below is a table that I made as a stand for my scroll saw:


It doesn’t have the bells and whistles as my other project for a good reason: it stays in my workshop, and not in my living room. I could have designed it to look like the redwood table above, but I’d rather spend my time and money on other projects.

So, what does this have to do with choosing a landlord attorney?

Not every part of the legal process requires the construction of a perfect piece of furniture. Sometimes, a basic table will do. In other words, although one can spend enormous time and money in a legal proceeding, it isn’t always necessary.

Landlord-tenant disputes can get expensive . . . very quickly. My goal in these cases (and for my other practice areas) is to make sure that I’m spending my client’s money wisely. I’ve seen some attorneys spend an enormous amount of time on matters that could otherwise be avoided. I have also seen attorneys attempt to litigate cases where the end goal just isn’t worth it for their client.

Of course, some expenses can’t be avoided. My workshop table above didn’t need a polyurethane finish, but it certainly required the right fasteners to ensure that it doesn’t fall apart. Having a solid background in landlord-tenant law is the key to knowing what is needed (and what isn’t) in a landlord-tenant dispute.

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

Who Can Appeal a Zoning Decision in Massachusetts?

foreclosure appeal

The Massachusetts Appeals Court issued an important decision last month on who can appeal a zoning decision. This decision clarifies that overcrowding concerns related to zoning approval are adequate grounds for giving a party a right to appeal one of these decisions. The full decision, Murchison v. Zoning Board of Appeals of Sherborn, is included below.

Zoning 101

Zoning are local regulations on the use of real property. These ordinances generally regulate the size, dimension, and uses of property, and are enacted by individual towns and cities across Massachusetts.

Often, certain desired uses of property require specific approval from the local municipality, such as a special permit or site plan review. A property owner, in most cases, is also entitled to apply for an exception to a zoning regulation, known as a variance.

Zoning decisions are generally made by a town or city’s zoning board of appeals or planning board. A party who is not happy with one of these decisions has the option of pursuing an appeal of such a decision in court.

Who Can Appeal a Zoning Decision in Massachusetts?

Not anyone can appeal a zoning decision. The law only allows a “person aggrieved” to bring an appeal. This is a critical, threshold requirement that must be satisfied for any zoning appeal.

There is a practical reason for this requirement. It would be unfair to allow a person who has no stake in the zoning outcome to get involved in one of these decisions. This requirement is similar to nearly every other civil lawsuit: one must show they have a “dog in the fight” to pursue a legal matter.

How Can Someone Show They Are a “Person Aggrieved”?

Arguably the most common basis for showing standing is a density concern (also known as overcrowding). The claimed harm is that the zoning relief will result in the construction of a building (or a use of land) that is larger or closer than what the zoning regulations intend for.

In Murchinson, the Appeals Court needed to determine the extent to which a party needed to show a density concern for the purposes of establishing standing. In this case, the claimant bringing the zoning appeal lived across the street from a proposed development, which was seeking zoning approval to construct a development without the town’s minimum lot width.

Minimum lot width is a density zoning regulation, aimed at preventing homes and building from being constructed too close to each other. In Murchinson, the proposed development would have only slightly violated this regulation. Based on this, the zoning appeal was dismissed, on the grounds that any alleged harm of overcrowding was de minimis (minor).

Murchison reversed this holding, by ruling the following:

There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area . . . cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.

Practical Implications

Prior zoning decisions suggest that not every concern about overcrowding can constitute standing for a zoning appeal. If the potential harm from the zoning relief is minor, previous cases seem to imply that minor harm, alone, is not enough for a zoning appeal.

Murchison, in my opinion, leaves that decision entirely up to the town or city’s zoning ordinance. If a town or city regulates density in any way, any zoning decision that results in a change to such density is grounds for standing.

Of course, simply having standing is not enough to overturn a zoning decision. Standing simply allows a person to have their day in court on such a matter.

Conclusion

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

Murchison-v.-Zoning-Board-of-Appeals-of-Sherborn-Zoning-Standing

Sherwin Law Firm Wins Landlord-Tenant Jury Trial

landlord-tenant disputes

Fall has been busy for me, but in a good way: I’m pleased to write that I won a landlord-tenant jury trial last week in the Housing Court!  The case has some important implications for those involved in landlord-tenant disputes.

Case Overview

I represented two tenants who had a terrible experience with their prior landlord.  This landlord–who is the owner of many large apartment complexes–routinely failed to address important safety and health complaints in my clients’ apartment.  The most egregious conduct by this landlord was it’s failure to return my clients’ security deposit after they moved out of the apartment.  My clients repeatedly contacted the landlord and requested the deposit’s return, which the landlord continuously ignored. 

My clients, importantly, were never looking to start a lawsuit on this matter–they would have been fine if the landlord simply returned their money.  By refusing to do so, however, the landlord forced this matter into court, resulting in damages that could have easily been avoided in the first place.

Lessons for Landlord-Tenant Disputes

This case has important lessons that landlords and tenants should keep in mind when addressing landlord-tenant disputes.

  1. Keep Good Records:  Keeping good records is critical for any landlord-tenant dispute.  I would guess that over 90% of the problems that landlords run into come from not having proper documentation for their tenancies, such as all efforts that the landlord took to maintain the rental unit.  This, in my opinion, was a critical reason why the jury found in favor of my clients: the landlord had nothing to support its alleged defenses to my clients’ claims. 
  2. Don’t Take a Security DepositMassachusetts’s security deposit law is a disaster waiting to happen for landlords.  Failure to comply with this law can result in steep penalties and expenses to a landlord.  For this reason, landlords are best off not taking a security deposit from a tenant.  In my case, a large portion of the landlord’s liability would have been avoided if they followed this advice.
  3. Be Reasonable About Settling a Landlord-Tenant Dispute:  No one is perfect, and landlords and tenants can easily make a mistake that subjects them to legal liability.  If this is the case, the landlord or tenant should settle sooner than later.  In this case, my clients made a settlement offer that was lower than the amount of money that the jury awarded to them!  If the landlord had taken this offer, they would have saved a lot of time and money.

Conclusion

I couldn’t be happier about the outcome of this case.  For my clients, this case wasn’t simply about money; it was about principle.  As an attorney who represents landlords and tenants, I often believe that Massachusetts law can favor tenants at the expense of landlords.  In this case, I believe that these laws served their intended purpose.

I don’t want to imply that every tenant deserves this outcome, or that every landlord is in the wrong.  I represent many landlords as well, and can attest that the overwhelming majority attempt to do the right thing.  But in this case, I’m pleased that this landlord was held accountable.

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

Evictions for Massachusetts Businesses: Get a Lawyer!

reversing-a-foreclosure

Massachusetts businesses in eviction proceedings have a unique requirement: they must be represented by a licensed attorney. This is true not just for eviction cases, but all civil actions (with the exception of small claims). Read on about this important topic.

Evictions for Massachusetts Businesses

A Massachusetts landlord is only entitled to represent themselves in an eviction if the tenancy is in their individual capacity. This is common for many small landlords, who own rental property individually, in their own name. These landlords are permitted to represent themselves in an eviction case.

If, however, the landlord is a business entity, such as a corporation or a limited liability company (“LLC”), the landlord must be represented by an attorney. This comes from a Supreme Judicial Court decision, which holds that such business entities cannot represent themselves in court. Most courts take the position that this requirement also applies to landlords organized as trusts.

Practical Implications

Another recent Supreme Judicial Court case, concerning who is entitled to bring an eviction, requires trial courts to take a careful look at the parties before them. If a corporation or LLC is appearing in an eviction case without an attorney, there is a strong chance that the court will dismiss the proceeding. For this reason, Massachusetts businesses should never take a chance of not having a lawyer in court. If there is any doubt about whether an attorney is needed for your eviction, speak to a lawyer before pursuing such a claim.

Landlords who are not business entities can represent themselves in court. Doing so, however, is not always a good idea. Massachusetts landlord-tenant law is complex, and if a matter proceeds to trial, most non-lawyers are unable to handle the procedural requirements for litigating a case. For this reason, hiring a competent attorney is a good idea.

Conclusion

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

What’s Required for a Foreclosure Default Notice? Massachusetts’s Highest Court Will Soon Clarify

foreclosure default notice

There is old saying for those living in New England: if you don’t like the weather, wait a few minutes. The same can be said about Massachusetts foreclosure law: if you don’t like a particular decision . . . wait a few minutes.

This is evident by a recent decision from the First Circuit Court of Appeals, that requests the Supreme Judicial Court to clarify the requirements for a foreclosure default notice, commonly known as “paragraph 22.” This comes from the Thompson decision, a ruling in favor of homeowners against a foreclosure sale that has been widely criticized by many in the real estate field. The full decision is below.

Background on Paragraph 22

The vast majority of homeowners in the United States have a mortgage agreement that uses a standard form. This standard form mortgage comes from Fannie Mae and Freddie Mac, and requires a lender to send a default notice prior to foreclosure. This requirement is generally found in paragraph 22 of this mortgage agreement.

This notice, among other things, requires specific disclosures to a homeowner prior to the start of foreclosure and provides the homeowner thirty days to pay the outstanding loan balance to avoid foreclosure.

In 2015, in a landmark court decision, the Supreme Judicial Court ruled in Pinti v. Emigrant Mortgage that lenders need to strictly comply with this foreclosure default notice requirement. Failure to include or correctly state one of the required disclosures in these notices can be grounds for setting aside a foreclosure.

The Thompson Decision

Earlier this year, the U.S. Court of Appeals for the First Circuit issued a decision applying the Pinti decision to an error in one of these paragraph 22 notices. In this decision, Thompson v. JPMorgan Chase Bank, the First Circuit ruled that the notice was defective because it mislead the borrower about when he could pay his outstanding loan balance to avoid foreclosure.

Importantly, the homeowner in Thompson never suffered any harm from this defect in his foreclosure default notice. The First Circuit suggested that any potential harm to a borrower in one of these notices was a violation of paragraph 22 and grounds for challenging a foreclosure’s validity.

Not surprisingly, many involved with Massachusetts real estate are concerned with the ramifications of this decision, and its impact on the foreclosure process. I, personally, have received many inquires about the ramifications of this decision; a sign that this area of Massachusetts foreclosure law remains in flux.

SJC to Review Requirements for a Foreclosure Default Notice

Thompson, importantly, was decided by a federal appeals court. The reason for this is that the case was brought into federal court from state court, which the law allows in certain circumstances.

The bank in Thompson asked for a reconsideration of this decision, which is rarely granted in appeals. The First Circuit declined to reconsider this decision, but instead, has asked the Supreme Judicial Court to clarify the law on foreclosure default notices and paragraph 22.

I, personally, have never heard of an appellate court doing this after issuing a decision. This is a good example of how Massachusetts foreclosure law continues to be an evolving area of law.

Conclusion

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

18-1559-2019-07-30

5 Things to Know About Massachusetts Land Court

Massachusetts has a unique forum for handling real estate disputes: Land Court. Land Court is a specialty court which handles a wide array of property issues, including Servicemembers’ Cases, boundary disputes, and other real property matters. Those involved with a real estate issue should be familiar with this court’s unique features.

1. No Jury Trials

No jury trials are allowed in Land Court. If you file a case in this court, your matter gets decided solely by a judge. This, in my opinion, is a great feature of Land Court for certain cases, such as adverse possession, which are best suited for a judge to decide, and not a jury.

Another feature of Land Court are judges with expertise in Massachusetts property law. It is a safe bet that the judge you are appearing before has heard a case of this type before, and has a solid background on the applicable law.

2. Assigned Judges for Cases

In most Massachusetts state courts, judges sit in different sessions at different periods of time. It is not uncommon in Superior Court, for example, to have a case heard by multiple judges for the duration of the lawsuit.

In Land Court, a single judge is assigned to each case. A benefit of this is that the judge will have familiarity with the history of the case throughout the proceedings. This is a huge benefit for complex and detailed matters.

3. Early Case Management Conferences

Upon the filing of a case, the court schedules a case management conference. This is an opportunity to meet with the judge and opposing party and make a plan for the case. Many times, this initial hearing can help pave the way forward to resolving the dispute.

4. Servicemembers’ Cases

Servicemembers’ cases are typically brought in Land Court. These cases are to determine whether a party is in the active military service, which provides some protections against foreclosure and other legal proceedings.

Such proceedings are often confused with an actual foreclosure sale itself. These cases, however, are only a prerequisite to a foreclosure sale. Unless the homeowner is in the active military service, the homeowner generally does not have a defense to one of these matters. Nonetheless, a homeowner who receives one of these notices should be proactive about addressing the oncoming foreclosure against their home.

5. Jurisdiction Over Registered Land

Land Court has exclusive jurisdiction over registered land. Registered land is a unique form of public land record keeping that is certified by the state. Land records for registered land are generally organized by certificates of title on the public land registries.

Land Court certifies such land records, and authorizes whether changes may be allowed to the property’s title. If your case involves registered land, more often than not, a Land Court proceeding will be necessary.

Conclusion

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

Starting An Eviction in Massachusetts

The process for starting an eviction in Massachusetts generally requires the sending of a notice to quit and the proper filing of a court summons. The ins and outs of these two requirements are much more detailed than can be covered in a single blog post. The use of an experienced landlord-tenant attorney for an eviction is highly recommended.

Here, I want to focus on a few things that landlords can do on their own to assist with starting an eviction case against a tenant.

Address Any Condition Issues in the Rental Unit

Landlords have a responsibility for maintaining a rental unit. Prior to starting an eviction, a landlord needs to ensure that any health or safety issues in the rental unit are addressed. This needs to be done regardless of the reasons why the landlord wishes to evict a tenant.

Starting an eviction when there are unaddressed conditions in a rental unit can be problematic, and sometimes fatal to the case. Best to address these matters before an eviction case begins.

Gather Together All Documents Relevant to the Tenancy

In an eviction case, like any other civil action, tenants have the right to request discovery, which is information relevant to the claims and defenses raised in the case. These generally consist of written questions and document requests.

A landlord can make this process easier (and save themselves legal fees) by getting together this information in advance. A good resource for this are the sample discovery requests that tenants often use in Massachusetts eviction cases. Not every one of these requests, of course, will be relevant to every eviction case. These sample requests, however, can give landlords an idea of what information will be required as part of their eviction case.

Speak to An Attorney Before Accepting Rent During an Eviction

Landlords need to be careful about accepting rent during an eviction. In certain cases, accepting rent can reinstate a tenancy and delay an eviction. Accepting rent in such cases needs to be done in a specific manner, which an attorney can assist with.

Be Professional With Your Tenants and Manage Expectations

Even under the best circumstances, evictions can be stressful. Landlords, however, should always remain professional with tenants. While it may be tempting to express anger with a tenant during an eviction, rarely do such confrontations help in the long run. Assume everything you say or write to a tenant will go before a judge or jury. Often, it is a good idea to let your attorney be the one to speak directly with your tenants during such a case.

Landlords also need to manage their expectations for an eviction. Evicting a tenant will not happen overnight, and there are parts of the process that cannot be avoided. Educate yourself about the eviction process, and be realistic about your goals in one of these cases.

Conclusion

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

Requirement #3 for a Massachusetts Variance: Substantial Detriment

Massachusetts variance

This is a three part blog series on the requirements for obtaining a variance under Massachusetts zoning law.  The first post concerned the first variance criterion: a showing that the property has unique conditions. The second post discussed the requirement of hardship. This final post discusses the final requirement: that the variance will not substantially harm public good or substantially derogate from the bylaw’s purpose.

Overview

Obtaining a Massachusetts variance requires a showing of three distinct requirements; all of which a petitioner must satisfy:

[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.

G.L. c. 40A, § 10

This third requirement requires consideration of how the requested variance fits in with the local community and zoning ordinances. Even if a petitioner meets the first two variance requirements, the permit granting authority has discretion to deny a variance under this third criterion.

Practical Implications for a Massachusetts Variance

Compared to the first two variance requirements, there are not as many court decisions interpreting this criterion. Generally, if a petitioner can make a good case for the first two requirements, they can generally meet this final criterion.

Nonetheless, a party seeking a Massachusetts variance should not ignore this last requirement. Rather, they should make a case that their variance is keeping with the purpose of the zoning ordinances, and will not cause harm to anyone else. Obtaining the written support of those who are living in the vicinity of the property can often be helpful in making such an argument.

Conclusion

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

How Can a Landlord Increase Rent?

Help With A Security Deposit

Massachusetts landlords need to act carefully when attempting to increase rent from tenants. With the exception of landlords who rent to tenants whose rent is subsidized by certain state and federal housing vouchers, there are no limitations on the amount of rent that a landlord may collect from a tenant. There is, however, a process that landlords must use to increase rent from existing tenants.

Tenants with a Lease

A lease is a formal agreement for the rental of property for a definitive period of time. Leases are legally binding agreements that obligate a landlord to rent the premises at the agreed-upon rent. As such, until the end of a lease, a landlord cannot demand an increase in rent.

A landlord, of course, can ask for an increase in rent after the lease, either through offering a tenants a new lease or a month-to-month tenancy. Landlords, however, need to be careful in these situations. If a tenant refuses to sign a new lease or agree to a month-to-month tenancy with the increase in rent, a landlord’s continued acceptance of rent after the end of the lease will create a month-to-month tenancy (known as a tenancy at will). The prior terms of the lease (including the monthly rent) will stay the same. Which brings us to the next topic . . .

Tenants At Will

For a tenancy at will, either party can end the tenancy by giving the other side a full rental period notice (which is most often thirty days). A landlord with tenants at will, therefore, can increase rent for these tenants by giving them proper notice of the rental increase.

There is a informal and formal way to do this. Informally, a landlord can simply ask the tenant to pay an increase in rent. If a tenant does, a new tenancy is created. If you go with this option, be sure to have the tenant sign a written agreement. While a tenancy at will can be oral, it is rarely ever a good idea.

If the tenant refuses a landlord’s offer to increase the rent, the prior month-to-month agreement (and prior rent) stays in place.

The formal way to increase rent is to end the month-to-month tenancy with a notice to quit, and offer a new month-to-month tenancy with the increased rent. This way, if the tenant refuses to accept the higher rent, the landlord has the option of evicting the tenant.

Practical Implications

Although a landlord can ask for higher rent from tenants, doing so is not always the prudent choice. Good, reliable tenants are a huge advantage to a landlord. Keep this in mind when choosing whether to pursue a rental increase. Many landlords find that modest increases in rent each year avoids the hassle of asking for a significant increase in rent in a single year.

Landlords also need to be mindful of state law that prohibits retaliation against tenants. Landlords cannot increase rent to “punish” a tenant for raising a complaint about the conditions of the apartment or filing a grievance with the town or city’s inspectional services department. Doing so exposes a landlord to liability from a tenant.

Conclusion

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

Sherwin Law Firm Wins Real Estate Appeal

real estate appeal

I’m pleased to write that I won a real estate appeal before the Massachusetts Appeals Court last week. This case concerned a real estate contract dispute, concerning rescission (a request to cancel a legal agreement). I had previously won the trial and the other side appealed. The full decision is included below.

What is an Appeal?

All civil disputes begin in a trial court, where a party can file a lawsuit against another party and seek monetary damages or a court order. Most real estate disputes in Massachusetts typically begin in the Superior Court or Land Court.

If a party is not happy with the outcome of a case, they can pursue an appeal. An appeal is a legal proceeding that asks a appellate court to review the decision of a trial court. Appeals generally go before the Appeals Court or District Court Appellate Division (depending on the case). In some cases, an appeal can go directly to the Supreme Judicial Court, the highest court in Massachusetts.

Lessons for a Real Estate Appeal

In this real estate appeal, I was defending the trial court decision (known as being the “appellee”). An advantage of being the winning party in an appeal is that an appellate court can uphold a trial court decision for any reason supported by the trial record. This means that, even if the lower court got the reasons for its decision incorrect, its decision will still be affirmed if there is another basis for the decision.

For this reason, a large portion of my argument addressed the many reasons why a claim of rescission was improper in this case. The purpose was to give the Appeals Court as many reasons as possible for going my way. I’m pleased that the Court agreed with my argument and affirmed the lower court decision.

Conclusion

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

Decision