Chapter 93A for Landlords and Tenants

The Appeals Court issued an important decision this week about the Consumer Protection Law (commonly known as “Chapter 93A”, in reference to its location in the state law) and its potential application for landlords and tenants.  The decision, Exhibit Source, Inc. v. Wells Avenue Business Center, is included below.

This decision concerns a dispute involving a commercial landlord-tenant relationship.  Nonetheless, this case has important lessons in the context of Chapter 93A for landlords and tenants with residential tenancies.

Overview of Chapter 93A

Chapter 93A prohibits “unfair or deceptive” business practices.  There are two main parts of this law: Section 9, for unfair or deceptive practices between consumers and businesses, and Section 11,  for unfair or deceptive practices between businesses.  While the concept of the law is generally the same for both sections, the requirements for each are slightly different.  Here, I’ll be focusing on Section 9.

“Unfair or deceptive” business practices is purposely intended to be broad, and allows for a wide array of potential applications.  Chapter 93A allows for monetary damages for violation of this law, and possible treble damages if the conduct was willful or knowing.  The law, importantly, allows for attorney fees as well.

For a consumer to bring a Chapter 93A case, they must send the business a demand letter first and allow them thirty days to respond, before filing suit.  This letter is not required if the consumer is bringing a Chapter 93A case as a counterclaim (a lawsuit filed in response to an existing lawsuit).  A letter is also not required if the business does not have an office or assets in Massachusetts.

This demand letter is a critical requirement for a Chapter 93A case.  Failure to comply with this requirement is often grounds for dismissal.

Chapter 93A for Landlords and Tenants

Exhibit Source, Inc. has several important lessons on how Chapter 93A applies to landlords and tenants.

First, Exhibit Source, Inc. is a good example of  Chapter 93A’s breadth.  Many acts, which might not otherwise be unlawful, can fall within the context of Chapter 93A, making it a powerful tool in pursuing a landlord-tenant dispute.

Second, Exhibit Source, Inc. discusses a central goal of this law: encouraging parties to settle their disputes without going to court.  If a party fails to offer a reasonable settlement offer in response to a Chapter 93A claim, the court can (and most likely will) punish them for this.

For this reason, a landlord who receives a Chapter 93A demand letter needs to properly address it.  Failure to do so can lead to much greater problems later on if the matter winds up in court.

Conclusion

If you need assistance with a Chapter 93A matter, contact me for a consultation.

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Getting Possession of a Rental Unit

Getting possession of a rental unit is the primary goal of an eviction case.  A successful eviction case allows a landlord to legally remove the tenant and their possessions from the rental unit.  The formal court order that allows the landlord to do so is known as an execution, and the process of using this court order for getting possession of a rental unit is commonly referred to as levying the execution.

Evictions 101

Eviction (known in Massachusetts as “summary process” cases) is the required, legal proceeding for obtaining possession of property.  Massachusetts (like nearly all states) is a judicial eviction state: one must bring a formal court proceeding to remove a tenant.  Attempting to remove a tenant without a court order, commonly known as a “self help” eviction, is a serious offense.

If the landlord wins the eviction case, or reaches an agreement for the tenant to move, the court will issue an execution for possession.  This is the court order that permits a landlord to physically remove a tenant and their possessions from the rental unit.

Levying the Execution 

 The actual process of getting possession of a rental unit is commonly known as levying the execution.  The tenant must be given 48 hours notice prior to the move out, and service of this notice must be made by a constable or sheriff.  Levying an execution requires the landlord to pay for the moving and storage expenses.  Needless to say, these expenses can add up.

Stay of Execution

A tenant is permitted to request a stay of execution if they believe they need more time to find a new place to live.  The law is written to apply only for tenants involved in a “no-fault” eviction case, where the tenant is not behind on their rent or in violation of a term of their tenancy.  Courts, however, commonly consider stays of execution for all types of tenancies, on the theory that courts have inherent power to manage the eviction process.

Conclusion

Getting possession of a rental unit is not an easy process, and if done incorrectly, can result in enormous costs and expenses that could otherwise be avoided.  For this reason, speak to an experienced landlord-tenant attorney for assistance with such a matter.

Collecting Money Against a Tenant

I’m willing to bet that the issue of collecting money against a tenant is one of the most frequent topics that landlords ask regarding tenants.  This is an important matter that landlords should carefully consider when faced with such a problem.

What Type of Money Is Being Pursued?

On this topic, the first initial question that needs to be determined is the type of money that the landlord wishes to pursue against the tenant.  Generally, there are three types of damages: (1) unpaid rent (2) damages to the apartment and (3) attorney fees.

The first two types of owed money, unpaid rent and damages to the apartment, speak for themselves: if a tenant owes a landlord money, or damages the apartment, the landlord has a legal cause of action against the tenant.

Attorney fees are a different matter.  A landlord generally only has a right to collect attorney fees against a tenant if there is a written agreement providing for this.  If there is no such agreement, the American Rule on legal fees generally controls, which does not allow a party to collect legal fees against an opposing party.

Options for Collecting Money Against a Tenant 

Options for collecting money against a tenant generally consist of the following: (1) a security deposit (2) eviction case or (3) a civil action.

Security DepositMassachusetts’s security deposit law permits a landlord to use a security deposit for unpaid rent and damage to a rental unit.  If a landlord has a security deposit, and a tenant owes rent or has committed damage to the apartment, a landlord (using the proper procedures) may deduct such expenses against the deposit.  A landlord, however, must be extremely careful in handling a security deposit, as a failure to comply with this law can result in treble damages, costs, and attorney fees.

Eviction:  If a landlord is pursuing an eviction against a tenant, they have the option of seeking unpaid rent as part of the eviction case.  This, however, is the only money that may be pursued in an eviction : a landlord is not entitled to any other damages in one of these cases, such as damages to an apartment.  For that, the landlord must pursue a separate civil action.

Civil Action:  A landlord may pursue a civil action against a tenant for any type of owed money.  If the damages are under $7,000, the landlord can go to small claims court; if the damages are greater, they would need to file a regular civil action.

Practical Implications

While a landlord can attempt to collect money against a tenant, doing so is not always prudent.  If the tenant does not have employment or assets, attempting to enforce a judgment against a tenant can be extremely difficult.

Moreover, in the context of an eviction, it is worth considering whether collecting such money is more important than obtaining immediate possession of the apartment.  This is an important consideration in determining whether to fight or settle an eviction case with a tenant.

Conclusion 

Collecting money against a tenant is not an easy endeavor.  Before making a decision on this important topic, speak to an experienced landlord-tenant attorney for help in making this decision.

Attorney Sherwin Named as a 2018 Massachusetts Super Lawyers Rising Star

I’m proud to write that I’ve been named as a 2018 Massachusetts Rising Star by Super Lawyers.  Rising Star candidates are limited to no more than 2.5% of lawyers in Massachusetts and go through a nomination, peer review, and independent research process.

As described by Super Lawyers on their website:

Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

I’m very proud and grateful for this recognition.

Coincidentally, this recognition occurred right around the time that I celebrated my fifth year in solo practice.  What a ride it has been!  While it is a real honor to be included with Super Lawyers, I’m even prouder of the many successes I’ve had in in my practice areas of real estate litigation.

If I can be of assistance to you with your legal problems, contact me.

Housing Discrimination in Massachusetts: A “Ruff” Lesson On This Important Area of Law

A recent case from Western Massachusetts of a landlord refusing to rent to tenants with service animals is an example of the perils of ignoring state and federal housing discrimination laws, and a reason why landlords need to be extremely careful when advertising rental units.  Discriminating against tenants with service animals will put landlords in the doghouse (pun intended!).

Housing Discrimination 101

Both state and federal law prohibits discrimination in housing.  This includes, but is not limited to: race, national origin, sex, and disability status.  The list of these protected categories is long, and it is best to check on this by reviewing the state and federal government websites on fair housing laws, which do a good job of explaining the basics about housing discrimination.  Simply put, a landlord is not allowed to deny a tenant housing based on one of these protected categories.

In this case, the landlord advertised that it would not accept pets or service animals.  While a restriction on pets is generally okay (and common) for rental units, the latter is a big no-no: a blanket restriction on service animals is discrimination on the basis of disability.

Practical Implications

Although the landlord in this story was likely fine in not allowing tenants with pets, it was not lawful to outright prohibit service animals.  If a tenant with a service animal wished to apply for a rental unit, the landlord would have to consider them for a reasonable accommodation.  If the landlord fails to properly consider this request, this is housing discrimination.

The increased use of service dogs promises that this will be an issue for years to come.  While every situation is different, I would imagine that most landlords will have difficulty making a case that a service dog is not a reasonable accommodation.  Landlords who fail to take this issue seriously set themselves up for severe damages and penalties.

In this case, the penalty against the landlord was likely not as bad as it could have been.  It is not unheard of for housing discrimination cases in Massachusetts to result in steep damages for landlords.

Conclusion 

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

Getting Back a Security Deposit in Massachusetts

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

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

Overview of the Massachusetts Security Deposit Law

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

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

Penalties for Not Complying with the Security Deposit Law

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

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

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

Options for Getting Back a Security Deposit 

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

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

Conclusion 

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

Help for Landlords With Bad Tenants in Massachusetts

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

Rent Escrow

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

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

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

Injunctive Relief 

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

No Self-Help

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

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

Massachusetts’s Security Deposit Law

A recent article from the Boston Globe, “Apartment management won’t return security deposit? That’s just one problem at this Revere complex,” highlights the importance of understanding Massachusetts’ security deposit law: an important consumer protection law for tenants.

Overview of Massachusetts’s Security Deposit Law

This article discusses a common scenario for tenants who have provided a landlord with a security deposit: a landlord’s outright refusal to return the deposit at the end of the tenancy.  Prior to the security deposit law, tenants had few options for pursuing such claims; often, the expense in attorney fees for suing  for one of these deposits made such claims far more expensive than the actual deposit itself.

For this reason, Massachusetts passed the security deposit law, which, I imagine, is one of the most pro-tenant laws in the entire country.  This law imposes numerous regulations on the acceptance, holding, and return of a security deposit, and provides stiff penalties for a landlord’s failure to comply with this law, namely, treble damages of the deposit. This is 0ne reason, among many, why a landlord should consider not accepting a security deposit in the first place.

Violation of the Security Deposit Law 

It is a common misconception that every violation of the security deposit law allows a tenant to recover treble damages, attorney fees, and costs against a landlord.  Rather, the Supreme Judicial Court has clarified that some violations of the law simply require the immediate return of the deposit, while others mandate treble damages.  Generally, a landlord’s failure to return a security deposit within thirty days after the end of the tenancy (or otherwise account for its use towards any damage in the apartment) will impose the treble damage penalty.

Conclusion

If you find yourself having difficulty with a security deposit, contact me for a consultation.  I have helped many Massachusetts tenants obtain the return of their deposits and take full advantage of the protections of this law.

Firm News: Sherwin Law Firm Moves to Charlestown

Starting July 1st, my firm will be moving to Charlestown, Massachusetts (only several blocks away from my current office).  My new office has plenty of parking and facilities that will help me continue to best serve my clients, and hopefully open up new opportunities for me in years to come.

It was a blast to have worked in Somerville for the past five years.  Luckily, I won’t be far away, and look forward to staying active in this wonderful city.

Here’s hoping your summer is off to a great start!