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.

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.

Breach of a Lease in Massachusetts

Breach of a Lease

This week, I obtained a successful judgment on behalf of several tenants against their landlord for a breach of a lease. This is an important topic for landlords and tenants that I want to discuss here.

What is a Lease?

A lease is a contract for the rental of property. A landlord agrees to allow a tenant to take possession of property for a specific period of time, in exchange for rent. Most residential leases in Massachusetts are for a year, but can be longer.

As stated above, a lease is a contract: a legally binding agreement. Failure to comply with one of the terms of a lease can result in a breach of this agreement, which has legal consequences.

Although a lease is a legally binding agreement, there are certain limitations that a landlord may not include. Massachusetts law prohibits the waiver of many landlord-tenant laws aimed at protecting tenants, such as the security deposit law. This is in contrast to a commercial lease, where landlords have much more flexibility in the rental terms offered to a tenant.

Breach of a Lease by Tenants

The most common type of a breach of a lease by tenants is the failure to pay rent. In such a case, a landlord can pursue an eviction, and seek possession of the rental unit and any owed rent. If the tenant is no longer in possession of the rental unit, the landlord can still seek owed rent through a civil action.

Tenants can also breach a lease by failing to comply with one of the other lease terms, such as keeping the property clean and not making excessive noise. If the breach is severe enough, this can also be grounds for eviction.

Breach of a Lease by Landlords

Landlords, importantly, can also violate a lease. In my recent case, the landlord failed to provide amenities in the apartment that it agreed to do, under a written lease. The Court agreed that the landlord’s failure to do so was a lease violation, and entitled my clients to monetary damages.

This is a critical lesson for landlords: a lease works both ways. Just as a tenant must comply with their end of the bargain, so must a landlord. Failure to do so can result in penalties if brought before a court.

Conclusion

If you need assistance with a breach of a lease, contact me for a consultation.

Landlords and Vacated Property

Landlords and Vacated Property

As a landlord-tenant attorney, my goal is to keep clients out of the dog house (pun intended). That’s why I want to discuss a new requirement for landlords and vacated property: checking for abandoned animals.

Landlords and Vacated Property

This law applies to landlords whose rental properties are vacated as a result of an eviction proceeding. It is fairly new, and is not yet included in the Commonwealth of Massachusetts’s eviction laws, found online. The full text of the law can be found in the passed law, and is included below:

Not more than 3 days after a property owner or a lessor knew or should have known that a property has been vacated as a result of summary process, the property owner, lessor or a designee shall inspect the property for the presence of abandoned animals.

If the property owner, lessor or a designee encounters an abandoned animal under this section or section 4, the property owner, lessor or a designee shall immediately notify an animal control officer as defined in section 136A of chapter 140, a police officer or other authorized agent of the presence and condition of the animal.

The property owner, lessor or designee who encounters an abandoned animal pursuant to this section shall not be considered the owner, possessor or person having the charge or custody of the animal under section 77 of chapter 272.

For the purposes of this section, an animal shall be considered abandoned if it is found on or in a property vacated as a result of summary process.

If the property owner, lessor or a designee fails to comply with this section, the lessor or property owner shall be subject to a civil penalty of not more than $500 for a first offense and not more than $1,000 for a second or subsequent offense. Funds collected under this section shall be deposited into the Homeless Animal Prevention and Care Fund established in section 35WW of chapter 10.

G.L. c. 239, § 14

This law, notably, only applies to vacated properties after an eviction (known as a “summary process” case). The law defines an abandoned animal as one that is “found on or in” a vacated property. This suggests that landlords should also report abandoned animals that are in the vicinity of their rental properties.

Practical Implications

From my years of representing landlords, I doubt this law will have a major impact for most owners of rental property. Generally, after an eviction, most landlords can’t wait to get into their rental units and check on their property.

Nonetheless, this is an important, new requirement for landlords and vacated property that should be kept in mind following an eviction.

Besides animals, it is a good idea for landlords with vacated property to take a close look at their rental units for other potential issues, such as health and safety concerns.

3 Things to Consider When Hiring a Landlord Attorney

Hiring a landlord attorney is necessary when problems with tenants will not go away. Choosing the right landlord attorney is an important decision, and one that can make all of the difference in your case. Here are three things to consider when making such a choice.

Knowledge of Landlord-Tenant Law

Just as you wouldn’t hire a plumber to work on an electrical problem, you don’t want a landlord attorney who does not have expertise in landlord-tenant law. All lawyers are not the same, and you want one with a background in this area of law.

A great example of this is Massachusetts’s security deposit law. At first glance, the holding of a security deposit wouldn’t seem like a big deal. However, Massachusetts law heavily regulates the receipt, holding, and return of such a deposit, with steep penalties for those who do not comply with these provisions. A good landlord attorney knows the importance of this law and how to keep landlords out of trouble.

Trial Experience

A good landlord attorney should have trial experience. While many eviction cases end up getting resolved short of trial, trials can and do happen for landlord-tenant cases. You want to be prepared for this by having an attorney who knows how to litigate such a matter.

Keeping Costs Under Control

Legal services aren’t cheap. However, a good landlord attorney makes a real effort to keep his or her fees and costs as low as possible.

The best example of this is using mediation for an eviction matter. Even in the strongest eviction case, there are fees and expenses that are unavoidable if the matter goes to trial. Mediation, where each party compromises in an effort to get the case resolved, can go a long way towards keeping legal fees under control.

Conclusion

These are all important topics to keep in mind when selecting a landlord attorney. If you need assistance with a landlord-tenant matter, contact me for a consultation.

3 Things To Know About Buying a Home with Existing Tenants

Buying a home with existing tenants has many traps for the unwary. While there are advantages to having existing tenants with the purchase of a home, there are also potential areas of liability. Here are three things to keep in mind when considering such a purchase.

1. Existing Tenancies Do Not End When a Home Is Sold

If a landlord-tenant relationship existed between the tenants and the prior owners of the home, that tenancy continues with the new owner. This is true regardless of whether there was a written lease or a tenancy at will (month-to-month lease agreement). The same terms of the prior tenancy agreement, in almost all cases, will carry over to the new owner of the home.

If a new home owner does not wish to have tenants (or wants new ones), an eviction will be necessary. Any attempt to remove tenants without a formal court case is a huge, huge violation of the law and comes with steep penalties.

If you are buying a home with existing tenants, and do not want to keep these tenants, it is strongly worth considering making the existing owner deliver the property without tenants in it.

2.Proceed With Caution With a Security Deposit

If the prior owner of the home accepted a security deposit from the tenants, you as the new owner are responsible for this deposit (unless the prior owner returned it to the tenants). The law requires the new owner to notify the tenants that they received this deposit and to comply with this law’s detailed provisions on holding a security deposit.

If the prior owner returned the deposit to the tenants, be sure to get this in writing.

As I have written about in the past, Massachusetts’s security deposit law is an incredibly complex law, filled with numerous regulations on the acceptance, holding, and return of a security deposit. New landlords should give careful consideration to not accepting a security deposit in the first place.

3.Landlords Must Maintain Residential Rental Property

Residential rental property comes with an implied warranty of habitability. This means that the property is fit for human habitation. The most common standard for measuring this is through compliance with the state sanitary code, a detailed list of the minimum standards for residential property. Local municipalities, as well as tenants themselves, have the right to enforce these regulations.

Residential rental property is quite different from commercial rental property, which is often rented “as is.” This is not allowed for residential rentals, and any attempt to get a tenant to waive the warranty of habitability will be void.

If you are buying a home with existing tenants, you need to be aware of these obligations. Failure to maintain rental property can lead to enormous liability, expenses, and other costs.

Conclusion

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

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.

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.