Payment Plans With Tenants: What to Know


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

Put Everything in Writing

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

Reference The Original Tenancy Agreement And Your Intention to Preserve It

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

Encourage Tenants To Seek Rental Assistance

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

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

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

Conclusion

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

Evictions During Coronavirus

Evictions during coronavirus is a topic many Massachusetts landlords have been asking about in recent weeks. As the pandemic continues, this is a matter that will continue to be of importance to both landlords and tenants.

This state of affairs, of course, remains uncertain, but here are my thoughts about addressing a present tenant dispute.

No Eviction Hearings Until the End of April, At the Earliest

Housing Court is not scheduling eviction cases until the end of April (which may get pushed back). In essence, this means that there will be no evictions during coronavirus.

A landlord is permitted to request a court hearing before then, if they have good cause. “Good cause”, however, is likely to be a high burden to meet for most Massachusetts landlords. With the exception of a real emergency, I doubt any judge will permit an eviction to go forward during coronavirus.

Landlords who own homes with a mortgage backed by Housing and Urban Development (“HUD”), Fannie Mae, and Freddie Mac need to proceed with extra caution, as the federal government has temporarily suspended evictions for these types of properties.

Proceed with Caution for Notices to Quit

I’m not aware of any formal restrictions on serving a notice to quit while the pandemic is ongoing. While eviction cases will not be heard anytime soon, a notice to quit (which is a required precursor to most Massachusetts evictions) can still be served.

However, simply because a landlord can serve a notice to quit doesn’t mean it is the best idea right now. Given the ongoing crisis, it may be best to wait a while longer before taking such action.

Attempt to Work Out a Resolution On Your Own

What’s the best thing that landlords can do now, with no evictions during coronavirus ? Try to work out disputes with tenants on their own. If a tenant is behind on rent, try and see if you can work out a repayment plan. Such repayment plans should always be in writing and signed by both parties.

If a landlord is holding a security deposit from a tenant, a landlord may be tempted to use this money towards any owed rent. Landlords, however, need to use extreme caution when dealing with a security deposit, as even a minor violation of this law can result in steep penalties.

Conclusion

The coronavirus pandemic will end eventually, and landlords will be permitted to resume evictions again. Until then, Massachusetts landlords need to proceed with caution in any disputes involving tenants before then.

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

Emotional Support Animals: What Landlords Need to Know

Emotional Support Animals: What Landlords Need to Know

This Friday, I’ll be doing a webinar on emotional support animals for MassLandlords. This webinar will cover what landlords need to know about emotional support animals, including how to address request from tenants for these animals and ways to avoid liability.

Emotional support animals (“ESAs”) are increasingly becoming common; one report states that registered emotional support animals have increased 1,000% between 2002 and 2012.

This webinar will discuss:

  • The difference between service animals and emotional support animals
  • Common circumstances when issues with ESAs may arise
  • What a landlord should be do when considering a tenant’s request for such an animal
  • What landlords can and can’t do with ESAs
  • Best practices for avoiding liability

The dog above is not a ESA; he’s my dog, Barley. However, the harness we use to walk him sometimes gets him confused as a support animal. This is a great example of why landlords need to be diligent about properly considering ESA requests from tenants.

In my practice as a landlord-tenant attorney, I’m increasingly seeing more cases involving ESAs. The U.S. Department of Housing and Urban Development recently issued a guidance on this topic and noted the rise of discrimination claims on these matters:

As of the date of the issuance of this guidance, [Federal Housing Administration] complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all [Federal Housing Administration] complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are one of the most common types of fair housing complaints that [Housing and Urban Development] receives. In addition, most [Housing and Urban Development] charges of discrimination against a housing provider following a full investigation involve the denial of a reasonable accommodation to a person who has a physical or mental disability that the housing provider cannot readily observe.

For these reasons, this is an important topic for landlord-tenant law, and I hope you can join the webinar.

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

Landlords and Coronavirus

Coronavirus has become a worldwide pandemic, and its effects are being felt here in Massachusetts. If you are like me, your work and personal life have been heavily interrupted by this crisis, which unfortunately, will likely stay this way for a while longer.

Here, I want to share some advice for Massachusetts landlords dealing with coronavirus. Since this outbreak is new, and we are dealing with uncharted territory, this post is subject to change.

Evictions During the Coronavirus Epidemic

Last weekend, Housing Court announced that all evictions are to be postponed until April 21, 2020 or later. While the court is allowing cases to be heard earlier upon a showing of good cause, my bet is that most landlords will unlikely be able to meet this high bar.

This means, in effect, that no evictions will go forward for the next month. For small landlords with non-paying tenants, this will especially be a burden.

This also means that Housing Court will be swamped with cases in Spring/Summer 2020. On a normal week, each Housing Court gets dozens (if not hundreds) of new eviction cases. This one-month postponement will result in a huge backlog of eviction cases for months to come.

Care and Maintenance of Residential Apartments

It is a good idea for Massachusetts landlords to remind their tenants of the importance of preventing coronavirus, namely, through cleaning and disinfection. While it is a safe bet that nearly everyone knows about this pandemic, Massachusetts landlords can avoid potential liability by being on record about notifying their tenants with these precautions.

Housing Discrimination Laws

One potential area of liability that I see arising during coronavirus is housing discrimination. State law (and federal) strictly prohibit housing discrimination on the basis of race and national origin. The ongoing epidemic is perpetrating some horrendous racial stereotypes.

Statements like these are not only untrue, but also potential grounds for discrimination. Even an innocent question such as, “Where are you from?”, can subject a landlord to liability. For these reasons, now more than ever, landlords need to be careful about complying with housing discrimination laws when dealing with existing and potential tenants.

Conclusion

I want to express my deep gratitude for the many health care and public service employees who are working to help combat this epidemic. For information on the latest about coronavirus, visit Massachusetts’s official website.

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

Trusts in Massachusetts Courts: Do You Need a Lawyer?

The Massachusetts Appeals Court last month issued an important decision about trusts in Massachusetts courts, on whether a lawyer is needed to represent such entities. The full decision, Braxton v. City of Boston, is included below.

Although I am writing this as a blog post about landlord-tenant law, this issue regarding trusts in Massachusetts courts is equally relevant to other areas of law, especially real estate matters.

What is a Trust?

A trust is a property interest held by one person for the benefit of others. Trusts have become a common means of passing property to others without having to do a formal probate proceeding. A trust is generally run by a trustee, who runs it for the beneficiaries.

Trusts are a common means of holding real estate. When placed into a trust, the trust becomes the owner of the property.

Trusts, importantly, can sue, and be sued in Massachusetts courts.

Trusts in Massachusetts Courts: Get a Lawyer!

Braxton concerned a simple question: does a trust need to be represented by a lawyer in court?

Prior cases make it clear that a corporation or limited liability company (“LLC”) need an an attorney for a court proceeding (except small claims). The rationale is that an organized business is a separate legal entity, and not the same as the individuals who own it. Braxton, to the best of my knowledge, is the first case to address whether this rule also applies to a trust.

In Braxton, the Appeals Court ruled that trusts, like businesses, must also be represented by a lawyer in court. This ruling makes sense: a trust, like a business, is a separate legal entity, and it makes little sense to require a business to have an attorney represent it in court, but not a trust.

Limited Exception: Filing a Notice of Appeal

Braxton recognizes a limited exception to this rule: the filing of a notice of appeal. An appeal is a court case that reviews a lower court decision. To do an appeal, one must file a notice of appeal by a fixed deadline after a final decision in a case is reached. For civil matters, this deadline is generally thirty days. (eviction appeals are ten days, and zoning appeals are twenty days).

A notice of appeal must be filed by this deadline; if it is not, the appeal can get dismissed. In Braxton, a trust wished to appeal a court decision, but no longer had a lawyer representing it. Rather than miss the appeal deadline, it went ahead and filed a notice of appeal without an attorney. The question for the Appeals Court was whether this was an adequate notice of appeal.

The Court ruled that in such a scenario, where a trust no longer had an attorney, it was proper for a trustee to file the notice of appeal on its own, with the caveat that the trust needs to find a lawyer ASAP. This ruling applies to business entities as well: a corporate officer can also file a notice of appeal for a corporation or LLC if it does not have a lawyer.

The rationale of this rule, in my opinion, is the need to meet appeal deadlines. It would be unfair to deprive a trust or business with the right to appeal solely because it does not have an attorney by the deadline date.

Practical Implications

A trust, like a business entity, needs a lawyer for court proceedings. Although Braxton recognizes an exception to this rule, this exception appears to be a narrow, limited one. Recent cases show that Massachusetts courts are not tolerant of non-lawyers practicing law. The consequences for doing so can be severe.

Conclusion

If you need legal representation for an eviction, contact me for a consultation.

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Commercial Evictions in Massachusetts: 5 Things to Know

Commercial evictions in Massachusetts concern property that is not used for human habitation, such as a store or office space. Similar to residential property, an owner of commercial property must bring a formal court action (known as “summary process”) for obtaining possession from a tenant.

This is where the similarities between commercial and residential evictions end. Read on for important information that one should know about commercial evictions in Massachusetts.

No Right to Housing Court for a Commercial Eviction Case

Housing Court is a popular forum for resolving residential property disputes in Massachusetts. A residential landlord is permitted to file an eviction in Housing Court, and if an eviction is filed in another court, either party (tenant or landlord) has the right to transfer it to Housing Court.

Housing Court, however, does not have jurisdiction over commercial evictions in Massachusetts. These cases must be brought in District Court or Superior Court.

Commercial Property Is Often Rented “As Is”, Which Limits the Available Defenses in a Commercial Eviction Case

Residential property comes with an implied warranty of habitability. A landlord can only rent property that is fit for human habitation: a responsibility that cannot be waived. Residential property must also comply with the state sanitary code.

Commercial property, in contrast can (and most often does) get rented “as is.” In such a case, the tenant is generally responsible for the care and maintenance of the property. As such, problems arising from conditions in the rental property are limited as defenses to commercial evictions in Massachusetts.

Commercial Leases Often Require the Waiver of a Jury Demand

Tenants in residential evictions have the right to a jury trial. Most commercial evictions require tenants to waive their right to a jury trial if an eviction case ever becomes necessary. As a result, commercial evictions typically move at a much faster pace than residential cases.

Counterclaims Are Not Allowed in Commercial Evictions

Counterclaims are not allowed in commercial evictions. As such, a tenant defending a commercial eviction is much more limited in the potential defenses they can raise in such a proceeding.

Commercial tenants, however, are free to file a separate lawsuit against a landlord and ask that it be consolidated with the eviction.

Massachusetts’s Security Deposit Law Does Not Apply to Commercial Tenancies

As I’ve written, Massachusetts’s security deposit law is a trap for unwary residential landlords, and can result in steep penalties if violated. This law, however, does not apply to commercial tenancies. A commercial landlord can accept a security deposit without having to comply with the numerous requirements of the residential security deposit law.

Massachusetts’s security deposit law often comes up in residential evictions, and is a problem if the landlord has not followed this law. For commercial evictions, however, this law does not apply.

That’s not to say that a commercial landlord can do whatever they want with a security deposit. Chapter 93A, which prohibits unfair and deceptive business practices, can apply if a commercial landlord acts unreasonably with a security deposit.

Conclusion

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

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.

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.

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.