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!

 

Service of an Eviction Case

reversing-a-foreclosure

Service of an eviction case is a requirement for starting any eviction against a tenant.  The law requires that the tenants have proper notice that such a case has been brought against them.  A landlord’s failure to comply with these service requirements can be fatal to one’s case.

Service of an Eviction Case

An eviction generally requires serving two types of documents to a tenant: a notice to quit, informing the tenant that their tenancy is being terminated, and a summons,  informing the tenant that an eviction case is occurring in court against them.

Service of an eviction is needed to put a tenant on fair notice that the landlord is attempting to obtain possession of the rental unit.  Simply calling or emailing the tenant is not sufficient; the law requires (like any other lawsuit) that the tenant have formal notice of the eviction.

Contrary to popular belief, a landlord does not need to serve a notice to quit by constable or sheriff.  However, the landlord bears the burden of proving that the tenant received this notice.  If the landlord is unable to do so, the court will dismiss the eviction.  For this reason, most landlords (smartly) serve notices to quit through a constable or sheriff.  Under the law, such service creates a presumption that the tenant received the notice.  Absent a compelling argument to the contrary, proof of service by a constable or sheriff establishes that the tenant received the notice to quit.

A summons, which is a formal court notice stating that an eviction case will begin, must be served by a sheriff.  A constable, who is a private officer, is also permitted to serve most eviction cases.  This formal service is a mandatory requirement, unless the tenant elects to waiver service.  Failure to properly serve an eviction case will likely result in its immediate dismissal by the court.

Conclusion

Service of an eviction is a critical part of a Massachusetts landlord-tenant case.  Failure to comply with these requirements can add unnecessary time and expense onto one of these cases, and make the process far more difficult than it needs to be.  For this reason, consider hiring an experienced landlord-tenant attorney to assist with one of these matters.

 

Who Can File An Eviction in Massachusetts?

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The Supreme Judicial Court issued an important decision this week for landlord-tenant law: who can file an eviction in Massachusetts?  The decision, Rental Property Management Services v. Hatcher, is included below.

Overview

The facts of this case are fairly straightforward.  A property manager (a person hired to maintain rental property) filed an eviction (“summary process”) case against a tenant in Housing Court.  This property manager brought this case in the name of “Property Management Services” (his business), which was not the owner of the subject property, nor the lessor.  This property manager personally signed the eviction summons.

Who Can File An Eviction in Massachusetts?

This case presented two main questions for the Supreme Judicial Court.  First, could this property management service bring this eviction case against the tenant?  Second, could the property manager (who was not a lawyer) sign the eviction summons?

The Court held that only an owner or lessor of rental property is entitled to bring an eviction case against a tenant.  Here, while the property management company may have been responsible for maintaining the property, it was not the right party to bring this eviction.

It is not uncommon in Massachusetts for property management companies to directly enter into leases with tenants.  Here, if this property management company had a lease or written agreement with the tenant, I suspect the outcome may have been different.  However, where this company was neither the owner nor lessor, it was not entitled to proceed with this eviction.

The Court then addressed whether the property manager was permitted to sign the eviction paperwork.  Because this manager was not an attorney, the Court held that he was not permitted to do so, and had engaged in the unauthorized practice of law.

Lessons for Massachusetts Landlords

This case has an important lesson for Massachusetts landlords: proceed with caution when filing an eviction in Massachusetts.  While I highly recommend that landlords use property management services if they need assistance in maintaining their rental units, these services cannot substitute as lawyers.

The Court declined to find that doing so was an unfair and deceptive business practice against the tenant (a claim that could allow for monetary damages and attorney fees).  Hatcher is clear, however, that a Court can punish a party who knowingly disobeys these eviction requirements.

Conclusion

If you are confused about who can file an eviction in Massachusetts, take away this critical advice: hire an experienced landlord-tenant attorney for your eviction.  Aside from avoiding some of the problems stated above, an experienced attorney will help you navigate this tricky area of law and reach an effective resolution to your dispute.  If you are in need of such assistance, contact me for a consultation.

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Landlord Not Returning a Security Deposit in Massachusetts

reversing-a-foreclosure

A landlord not returning a security deposit is one of the most common complaints that comes up between tenants and landlords in Massachusetts.  Massachusetts law heavily regulates the handling of security deposits, and this law can be used when a landlord improperly refuses to return a security deposit.

Massachusetts’s Security Deposit Law

A quick skim of Massachusetts’s security deposit law shows the complexity of this law.  G.L. 186 Section 15B regulates every aspect of a security deposit, from the acceptance of the deposit up to its return to the tenant.  The extensive requirements of this law is one reason why I advise Massachusetts landlords to never accept a security deposit.

Penalties for not complying with this law can be steep.  Some violations entitle the tenant to the immediate return of their deposit, and others permit the tenant to obtain triple damages, costs, and attorney fees against a landlord who fails to comply with this law.

What To Do About a Landlord Not Returning a Security Deposit 

If a landlord fails to return your security deposit, contact an experienced landlord/tenant attorney for assistance.  While the security deposit law offers numerous protections for tenants, an experienced attorney is often necessary for determining whether a violation occurred, how to pursue such a claim against the landlord, and the likely damages that can be obtained from such a case.

Landlords can equally benefit from having the assistance of an experienced attorney when handling a security deposit claim.  An attorney can help determine if a violation occurred and whether any possible defenses exists to such a claim.  An attorney can be helpful  in negotiating a settlement and minimizing damages.

A landlord should not wait until a security deposit claim has arisen to seek the assistance of a landlord/tenant attorney.  If you think you may be in violation of this law, or want help in making sure you comply with the law’s detailed requirements, speak to a landlord/tenant attorney right away.

Conclusion 

If you find yourself involved with a security deposit matter, contact me for a consultation.  Having an experienced attorney on your side can make all of the difference in getting you the help you need.

Responding to a 93A Demand Letter

Massachusetts has an important law that is of critical importance to Massachusetts landlords: the Consumer Protection Law.  Commonly known as “Chapter 93A” (where this law is located in the Massachusetts statutes), the Consumer Protection Law prohibits “unfair and deceptive business practices.”  This, as one can tell, is broad language that can cover an infinite number of scenarios.  Courts have construed the reach of Chapter 93A broadly, to include many potential claims that are not otherwise covered by other existing laws.

For a consumer to bring a Consumer Protection Law claim, the claimant must generally send the business a demand letter prior to filing a lawsuit.  For a landlord, responding to a 93A demand letter is incredibly important.  The failure in responding to a 93A demand letter can come with steep penalties if the matter ends up in court.

I always advise a landlord (and anyone else who receives such a letter) to hire an attorney when responding to a 93A demand letter.  Even if the demand appears to be without merit, it is worth having a legal professional ensure that you are handling the complaint properly.  Here are a few points that should be considered when responding to a 93A demand letter.

Is the Landlord Covered Under the Consumer Protection Law?

First, is the landlord covered under the Consumer Protection Law?  The general rule is that a person or business who rents residential space for a fee is engaged in business, and would be subject to Chapter 93A.  However, there is an exception if the landlord lives in the subject property, and is merely renting a unit in the building.  Courts have found that in such cases, the landlord is not a business.  An experienced landlord/tenant attorney can help determine this for you, and whether or not you might be subject to Chapter 93A.

Does the Demand Letter Satisfy the Requirements of a 93A Demand Letter? 

The second inquiry when responding to a 93A demand letter is whether the demand letter satisfies the Consumer Protection Law requirements.  Contrary to popular belief, simply calling a demand letter a Chapter 93A demand does not make it compliant with Consumer Protection Law.  Rather, the law has specific requirements on what needs to go into the letter.  The failure to send a proper demand letter can have severe consequences: in some cases, courts have thrown out a Consumer Protection Law lawsuit for not complying with the demand letter requirement.

Responding to a 93A Demand Letter

Regardless of the above, a landlord should always respond to a 93A demand letter.  Even if the claim is meritless, or the landlord is not covered by Chapter 93A, the failure to respond can be disastrous if the matter ends up in court.

In responding to a 93A demand letter, an attorney can help you determine whether to make a reasonable settlement offer.  Because Chapter 93A generally requires a demand letter before starting a lawsuit, the law (and judges who hear these cases) strongly favor resolution of these matters without litigation.  The Consumer Protection Law gives landlords strong incentives for settling these cases out-of-court, and strong penalties if the court believes that the landlord should have resolved the matter without the court’s involvement.

Conclusion 

Responding to a 93A demand letter is important.  If you find yourself in receipt of one of these demand letters, contact an experience attorney for assistance.

 

Guest Blog Post: Renters Insurance

The Massachusetts Landlord Tenant Blog is pleased to have Jordan Lavalle from Liberty Mutual guest blog on the important topic of renters insurance.  Jordan may be contacted at Jordan.Lavallee@LibertyMutual.com

‘I Don’t Have Renters Insurance, what is the big deal?’ is a question I hear from my clients on a daily basis.  Purchasing home insurance on your house is widely accepted, but having renters insurance on your apartment is often ignored.  In fact, a 2016 study conducted by the ORC International, found that 95% of homeowners had insurance, while only 41% of renters did.

In my profession as a Sales Representative at Liberty Mutual, I hear weekly stories of people who are left empty-handed after their apartment building experienced a traumatic loss. “It is better to be safe than sorry,” is my motto when it comes to purchasing renters insurance, especially when it is much more affordable than people think.  In the same way I aim to advise my clients, my hope for this article is to educate readers on the offerings of renter’s insurance and eliminate any misconceptions.

Renters insurance includes three main coverage’s, although there are many additional coverage’s, called endorsements, which can be added on.

Personal Property

Anything in your apartment, home, or space you rent that belongs to you is covered by renters insurance.  All too often, clients underestimate the value of their belonging.  Luckily, there are several apps on the market, including Liberty Mutual’s Home Gallery App, which will allow you to calculate the value your belongings.  Do not be surprised how quickly you reach the thousands, when you start adding up the cost of your clothing, furniture, and electronics.  Not only will your renters policy cover your personal property while it’s sitting in your apartment, but it will be covered ANYWHERE in the world.  So you are on vacation in Bora Bora and you lost your designer sunglasses?  Good news, you can get a brand new pair with your renter’s insurance policy!

Loss of Use

Not only are your personal belongings protected, but renters insurance has another significant coverage known as Loss of Use.  If your apartment is deemed unlivable, Loss of Use will cover costs associated with housing, food, laundry and more while your building is being renovated, up to the policy limits.  Not having to think twice about how you will afford being displaced from your home, takes stress away from the situation, so you can continue to focus on work, family and friends.

Liability

The third major component to renter’s insurance is liability protection, which will protect you up to your policy limits for medical expenses of others and legal fees.  As a renter, you are responsible for any injuries to your guests.  From a slip or fall, dog bites, or serving alcohol to your guest who later gets into a car accident, the law suits or medical bills could come back to you.  Liability coverage will also protect you if you are found responsible for property damage in your home.  For example, if you light a candle near a flowing curtain and start a fire, you will be accountable for the damages.  This is where liability coverage can kick-in and cover the expensive repair, so it will not come out of your pocket.

Not only does renters insurance offer these instrumental coverage’s, but you also have the option to add on endorsements to personalize your policy.  One endorsement that I often add to renter’s insurance policies is called our Home Computer Endorsement.  It covers my client’s computers, laptops, smartphones and tablets if they are damaged or lost, with a $50 deductible.  For only an extra $2.00/month to add the Home Computer Endorsement on, it is much less expensive than the cost to buy insurance for you smartphone through your mobile carrier.

Many clients think that adding renters insurance would be a huge cost to them.  However, in Boston, most renters’ insurance policies that I sell cost less than $20.00 a month.  That is less than the cost of 4 lattes from Starbucks or a night out to dinner!  Do not take a gamble on your financial well-being. Protect yourself and your family by putting a renter’s insurance policy in place today!

About Jordon Lavallee

Thank you all for reading about the significance of Renters Insurance.  My name is Jordan Lavallee, and I am a Sales Agent for Liberty Mutual, servicing the state of Massachusetts.  My passion for what I do, comes from my innate desire to help people.  Through coaching clients and offering my advice, I am able to give them invaluable peace of mind.  If you or anyone in your network would like to discuss their best insurance options, please email me at Jordan.Lavallee@LibertyMutual.com and connect with me on LinkedIn to see more educational insurance posts.

 

Guest Blog Post: 2017 Eviction Appeal Recap

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The Massachusetts Landlord Tenant Blog is pleased to have Attorney Joseph N. Schneiderman guest blog on 2017’s major eviction appeal decisions .  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

The year 2017 was a busy time in the realm of the law of summary process. Beyond the expansion of the Housing Court, the Supreme Judicial Court and the Appeals Court have heard and issued significant eviction appeal decisions that landlord-tenant and Housing Court practitioners should be familiar with.

Summary Process and Harassment Prevention Orders

First, in C.E.R. v. P.C., 91 Mass. App. Ct. 124 (2017), the Appeals Court emphatically held that harassment prevention orders under G.L. c.258E could not become functional shortcuts or substitutes for summary process. The facts do not flatter the defendants; they were two roommates renting a room from the plaintiff, who was about to sell the home.  Suffice it to say that the roommates engaged in boorish conduct involving sex, drugs, and rock and roll. The situation eventually boiled over to the point of the plaintiff obtaining an ex parte harassment prevention order in the Ipswich District Court. The judge later extended it for one year, effectively forcing the defendants to leave the home.

Although the Appeals Court vacated the orders for insufficient evidence of harassment, the Appeals Court also emphasized that such orders could not be “used as a short-cut for evicted tenants without following summary process procedures.” 91 Mass. App. Ct. at 132. More particularly, the plaintiff repeatedly asserted that she wanted the orders to “induce the defendants to leave without interfering with the rental or sale of the property.”  The police who responded in turn suggested she obtain a lawyer and during the proceedings,  “the defendants had already begun to move out.” The trial judge also hinted that the plaintiff was attempting to avoid summary process-echoing a similar past case.

Practitioners and judges alike should also be aware of how landlords may attempt to employ harassment prevention orders as functional summary process substitutes. Tenant bad behavior should not be condoned. But summary process is the means to redress it-not Chapter 258E. If you have questions, check the dockets in the District Court as defendants have a right to obtain the orders, even though portions of the orders are confidential. G.L. c.258E, §10. If there’s pushback from a Clerk, move for relief from impoundment.

Moreover, evidence that there was no reasonable basis for a harassment prevention order may defeat an Anti-SLAPP (Strategic Litigation Against Public Participation, think a Donald Trump suing a little guy just for the sake of suing him) motion. Compare Van Liew v. Stansfeld, 474 Mass. 31 (2016), citing G.L. c.231, §59H. Even with changes in Anti-SLAPP this year, an unjustified harassment prevention order or Anti-SLAPP order may constitute retaliatory conduct to trigger treble damages under c.186, §14. But those questions are for another day. For now, be mindful of this possibility.

Termination of a Section 8 Lease, Right to a Jury Trial in an Eviction Case

In CMJ Management v. Wilkerson, 91 Mass. App. Ct. 276 (2017), the Appeals Court held that a tenant’s child’s criminal conduct justified termination of a Section 8 lease-but that the same tenant had been unlawfully deprived of her right to a jury trial. The tenant had custody of her fourteen year old grandson, who shot and fired a BB gun that injured two fellow juveniles.  Although no delinquency charges followed, the eviction occurred.

The Appeals Court rejected the tenant’s argument that the juvenile’s conduct did not constitute criminal activity. Admittedly, the juvenile’s conduct violated a statute that only provided for a fine.  However, the lease unambiguously forbade criminal activity by any tenant, member of a tenant’s household and threatened the well being of fellow tenants.  There was no distinction between juveniles and adults in the lease. Thus, termination was proper.

Although the Appeals Court’s analysis is literally correct, Massachusetts law has always treated juveniles charged with crime  as different in kind from adult offenders. Indeed, “as far as practicable [juveniles charged with crimes ] shall be treated, not as criminals, but as children in need of aid, encouragement and guidance.” G.L. c.119, §53.

Practically speaking, Juvenile Court judges have broad flexibility to deal with juveniles facing delinquency charges to further their best interests. The question for more than 100 years has always been: “What shall be done with this child?” not, how do we punish and deter this child?   Indeed, not only was there was no guarantee that a complaint would issue against a juvenile, but if a complaint had issued, the judge could have dismissed the complaint before arraignment-which would mean that no CARI record would exist Compare Commonwealth v. Humberto H.,  a juvenile, 466 Mass. 562 (2013).

To be certain, summary process and delinquency are different proceedings in kind. However, to deprive a juvenile of his housing, housing he very likely has no control over and must rely on an adult to obtain, is a sufficiently adverse collateral consequence that the consequence effectively defies the command not to treat him as a criminal. This is curiously absent from the Appeals Court’s analysis. This issue also underpinned an ultimately unsuccessful application for further appellate review by the Supreme Judicial Court. See Docket No. FAR-25267.

Practitioners who have clients with family members facing delinquency complaints should keep abreast of this issue. This collateral consequence is substantial and potentially irrationally  treats the juvenile as a criminal. Whether or not Section 8 pre-empts G.L. c.119, §53 (or conversely, that applying Section 8 to a child within the ambit of G.L. c.119, §53 violates the 10th Amendment as unconstitutional strongarming) is a thorny and novel issue-for another day. Compare Boston Housing Authority v. Garcia, 449 Mass. 727 (2007).

On the jury trial issue, the Appeals Court held that the judge’s action striking the tenant’s jury claim amounted to disproportionate sanction. The tenant answered by asserting a jury claim but did not file a pre-trial memorandum to press her claim although the Landlord had-and indeed, the Landlord proposed instructions. The tenant  admitted that she did not understand the pre-trial memorandum. The judge replied, “I can’t let you go forward …without a pre-trial memorandum.” 91 Mass. App. Ct. at 281-282.

The Appeals Court held that the tenant’s answer sufficed to timely demand and assert her jury claim. Two factors mitigated against implying that the tenant waived the jury trial. First, Housing Court Standing Order No. 1-04 specifically imbued judges with power to allow tardy motions and other pleadings since many parties were self-represented. Second, Art. 15 of the Massachusetts Declaration of Rights specifically guaranteed a right to a jury trial in eviction trials. 91 Mass. App. Ct. at 284-285, citing New Bedford Housing Authority v. Olan, 435 Mass. 364, 370 (2001).

A judge should therefore approach striking a jury demand cautiously. Although the tenant had notice of the possibility of striking the demand as a  sanction, the judge abused her discretion by striking the demand. Indeed, the tenant attempted to understand the memorandum and striking the demand would not serve as a deterrent sanction.

What’s the take-away? If you represent someone who was self-represented, avail yourself not only of Standing Order 1-04-and Mass. R. Civ. Pro. 15 (to amend or conform pleadings.) Indeed, Rule 15 favors granting amendments-there needs to be prejudice to overcome that presumption. Dockets and court files can be messy-indeed, self-represented litigants may try to litigate by paper deluge. These rules are a powerful solvent for counsel to clean them up. If there’s a question about a jury trial, make sure it’s in the answer-and emphasize that striking a jury demand should be a last resort because of the constitutional and statutory implications. And, cite this case!

Waiver of a Jury Trial in an Eviction Case

Cort v. Majors, 92 Mass. App. Ct. 151 (2017) followed Wilkerson.  The case was a typical summary process case; tenant and landlord were self-represented, tenant stopped paying rent, landlord sought eviction, tenant counterclaimed.  After the landlord’s testimony and during his own testimony, the tenant said, “I’d like a jury.” The judge responded that the tenant waived that right, to the tenant’s surprise. “You didn’t tell me that.” 92 Mass. App. Ct. at 152. The trial concluded in the landlord’s favor.  The question on appeal was whether the tenant had indeed waived his jury trial.

The Appeals Court held that he had not. The Appeals Court recalled that generally, Housing Court trials were bench trials unless constitutionally required. Article 15 of the Massachusetts Declaration of Rights guaranteed a jury trial, Mass. R. Civ. Pro. 38(a) incorporated and implemented that right, and Uniform Summary Process Rule 8 implemented that right in summary process trials. Mass. R. Civ. Pro. 39 in turn only provided for a waiver of a jury trial if there was a written or oral stipulation. Because the tenant demanded a jury trial in his answer, the issue was whether the tenant executed a valid oral stipulation.

The Appeals Court held he had not. Although the tenant answered ready for trial, this response to the judge was not a waiver of his right to a jury trial.  Nor was there any suggestion that the tenant authorized the judge “to decide or knowingly relinquished his right to a jury trial.” Rather, under Rules 38 and 39, if there is a valid jury demand, a judge had a duty to “affirmatively inquire of the parties, before any witness is sworn, whether the case will proceed with or without a jury [this was not…] satisfied by commencing a bench trial and awaiting an objection by a party.”  The Appeals Court recognized that many self-represented litigants appeared in the Housing Court. However, Rules 38 and 39 meant what they said-and a judge could still explain the differences to a party.

The two cases above represent robust reinforcement of the rights to a jury trial. The Appeals Court recognize the competing demands on Housing Court judges to, on the one hand, maintain efficient proceedings but also respect the rights of tenants-who are often self-represented and ill-suited to understand assert them. Only the clearest and most unequivocal conduct will amount to a waiver of the jury trial right. Like in the criminal context, judges must engage with tenants to ensure that they are knowingly and clearly and unambiguously waiving their jury trial rights. The Appeals Court also recognizes that Housing Court judges can carry out this duty easily by discussing and informing tenants of this right.

Damages in an Eviction Case

South Boston Elderly Residences v. Moynahan, 91 Mass. App. Ct. 455 (2017) further elucidates damages in the landlord-tenant context. Moynahan lived in a small (450 square feet) unit that suffered from perpetual moisture and mold problems. Conditions eventually deteriorated to the point of mushrooms growing in the carpeting-the landlord refused to address in light of clutter.

Boston Inspectional Services eventually cited the landlord-who in turn served a notice to quit in October 2011 and refused to cash rent checks. Moynahan returned to the apartment but discovered inadequate ventilation-and a second and third summary process action followed. A three day trial ensued-and the trial judge refused to award any rent abatement damages for moisture or mold before August 2011 or for fall of that year because Moynahan prevented repairs. The judge also found that Moynahan rebutted the presumption of in retaliation due to clutter and sustained non-payment of rent.

Although the Appeals Court sympathized with Moynahan’s plight, ultimately, the code violation relative to moisture and mold were minor and did not cause problems until May 2012. Thus, the findings of fact were not clearly erroneous to warrant damages. 91 Mass. App. Ct. at 462-464.  Moreover, since Moynahan prevented access for repairs and had access to another nearby apartment, he only established lack of access to an adequate unit for three months of five –and the judge did not err in only awarding him one month.

Regarding ventilation damages, the judge erred in so far as he based an abatement award to Moynahan as a proverbial eggshell plaintiff, or easily subject to injury due to the lack of ventilation and lack of access to windows. Rather, since a breach of warranty of habitability supported contract and tort damages, the landlord had to take Moynahan as he found him. Since the judge applied an incorrect legal standard while partially crediting Moynahan’s testimony about breathing conditions, the Appeals Court remanded. 91 Mass. App. Ct. at 465-467.

The Appeals Court however found that the judge’s finding that the landlord overcame the presumption of retaliation by clear and convincing was clearly erroneous. Although the landlord complained about the issue in March 2010, there was no evidence that Moynahan was hoarding or making it worse before the notice to quite in October 2011. Nor did the landlord act to correct it until after Moynahan called in inspectional services. Thus, Moynahan deserved statutory damages of up to three months rent or actual damages.

However, Moynahan had not established damages for c.93A. To be certain, the code violation, in and of itself, violated c.93A. But the landlord had acted to cure the violation and since Moynahan had not presented any evidence of a violation before August 2011, Moynahan had no right to 93A damages. Finally, with regards to quiet enjoyment, although unauthorized entry could amount to a breach of quiet enjoyment, the record simply did not bear it out as unreasonable-there was only incident where Moynahan did not desire the landlord’s entry but sought it for another day-which was to address repairs.

There are many possible takeaways from this case. First, a breach of the warranty of habitability should not simply be based on market or contractual damages-it should stem from actual damages a tenant suffers. Moreover, controverting retaliation cannot occur in a vacuum. The landlord must put forth real and specific evidence that the eviction was completely independent of the complaints about conditions. This dovetails with the heightened burden of proof.

This case though stands in marked contrast to the Leisure Woods case holding that c.93A damages are available for per se violations of the regulations governing manufactured housing. Although regulatory violations do constitute c.93A violations, the tenant still has to prove that the violation is continuing-which the landlord can mitigate. Like Leisure Woods however, this case creates the potential for mischief: viz. a lack of incentive for landlords to cure damages by undervaluing damages. Hopefully, the Supreme Judicial Court or the Legislature will cure or clarify this confusion.

Lurking in the background of this case are questions of hoarding.  This case does not squarely present or involve the question of how a landlord’s response to hoarding may or may not mitigate tenant damages. The factual record of this case is also unclear at best as to whether or not the tenant was indeed a hoarder due to the cramped conditions in the apartment. But, that discreet legal question will have to wait for another day.

Trespass in an Eviction Case

Finally, in Federal National Mortgage v. Gordon, 91 Mass. App. Ct. 527 (2017), the Appeals Court recognized on the one hand that the Housing Court could hear a common law trespass claim. However, the Appeals Court reaffirmed that a post-foreclosure could not bring a trespass action, especially if the holdover tenants claimed leasehold rights after foreclosure.  The defendant tenants had a mortgage that they fell behind on. Following a foreclosure and during a summary process action, the tenants apparently executed a lease and one tenant moved out. The trespass action followed.

The Appeals Court recalled that the scope of the subject matter jurisdiction of the Housing Court was a classically thorny issue. On the one hand, the Housing Court was a court of limited jurisdiction but could also hear matters, including tort or contract actions, related directly or indirectly to the health, safety and welfare of any occupant or place used for human habitation. 91 Mass. App. Ct. at 531-532, citing G.L. c.185C, §3.  The presence of trespassers “will, in many cases, affect the health, safety and welfare of an owner or occupant” and thus was a tort action relating to health, safety and welfare. The Housing Court thus had subject matter jurisdiction.

However,  the action for was trespass was impermissible. The Appeals Court recalled that G.L. c.184, §18 proscribed any attempt to recover land except pursuant to summary process or any other proceeding authorized by law. For twenty-five years, the Supreme Judicial Court held that a foreclosure sale was not a “proceeding authorized by law” as the purchasers entered lawfully and were holdover tenants. Indeed, the tenants had no duty to inquire about the landlord’s status-and had not forcibly entered. Finally, there was no evidence in the record that the bank had constructive possession-any lapse between one tenant and the other tenant was too brief to indicate a possessory surrender-the record indicated otherwise.

This case reaffirms that summary process essentially occupies the field in post-foreclosure matters. To proceed on a trespass action, the bank has to overcome the command of Section 18 and show a forcible entry. A person’s mere presence is not enough-nor can they be imputed with knowledge that a bank does or does not own property. Only a true squatter or someone else who otherwise has no interest qualifies.

The case also represents another case in the long line delineating the subject matter jurisdiction of the Housing Court. Trespass certainly does, as the Appeals Court held, implicate the health, safety, and welfare of human occupants. The trickier issue will be how that plays out in a particular case in the Housing Court-and whether or not Housing Court dockets will see more actions.

Conclusion 

These eviction appeal decisions show that this area of law continues to be changing, and practitioners need to be aware of these recent decisions.  The benefits of having an experienced appellate attorney for an eviction appeal cannot be overstated.

Landlord Not Giving a Security Deposit Back

A landlord not giving a security deposit back is one of the most common type of landlord/tenant problems.  What should a tenant do if this happens to them?

Overview of Massachusetts’s 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–most relevant to this post–the return of the deposit are covered by this law.

Failure to comply with Massachusetts’s security deposit 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.

Requirements for Returning a Tenant’s Security Deposit

The return of a security deposit must be done carefully.  A landlord is only allowed to deduct from the deposit unpaid rent or water charges, an unpaid increase in real estate taxes (if the tenant was obligated to pay this under the terms of the tenancy), and a reasonable amount to repair any damage to the unit.  For the latter deduction, the landlord must provide a list of these damages, sworn under “the pains and penalties of perjury” and written evidence of these expenses.

This return of the deposit must be made within thirty days of the tenant ending their tenancy.

What To Do About a Landlord Not Giving a Security Deposit Back 

If your landlord is not giving your security deposit back, consult an experienced landlord/tenant lawyer.  An attorney can review your case and quickly determine whether you have a claim against your landlord.  Massachusetts’s security deposit law, importantly, often provides for attorney fees: if you prevail in your case against a landlord, the costs of hiring an attorney may be recovered in the case.

Damages for a Security Deposit Violation in Massachusetts

The Massachusetts Supreme Judicial Court issued an important decision on Massachusetts’s security deposit law earlier this year which clarifies the damages than a tenant can obtain from a security deposit violation.

In Phillips v. Equity Residential Management, LLC, the Supreme Judicial Court held that treble damages are not required for every security deposit violation.  Like Massachusetts’s security deposit law itself, Phillips is a complex case.

Overview of Massachusetts’s Security Deposit Law 

Massachusetts’s security deposit law heavily regulates a landlord’s acceptance, holding, and return of a tenant’s security deposit.  This law is so detailed that I, along with many other landlord/tenant attorneys, warn landlords to never accept a security deposit.  This law, among other things, has requirements on where a security deposit must be held, what information must be provided to a tenant about the acceptance of the deposit, and what deductions may be taken from the deposit at the end of the tenancy.

Damages for a Security Deposit Violation

Failure to comply with the security deposit law can come with harsh consequences.  The law imposes treble damages, attorney fees, and costs for failure to comply with many of its detailed requirements.  In Phillips, the Supreme Judicial Court clarified which security deposit violations permit treble damages against a landlord.

The security deposit law contains a number of “forfeiture” provisions, where a landlord is required to automatically return a deposit.  The law also imposes treble damages for a failure to “return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.”  Phillips determined whether a tenant gets treble damages for failing to return a portion of the deposit that was otherwise forfeited under the law.

Prior to Phillips, many courts took the position that treble damages applied anytime a landlord violated the security deposit law.  Now, the law is clear that for some violations of the law, a tenant is simply entitled to the full return of his deposit, without treble damages.

Conclusion 

While Phillips places limits on the damages one can receive for a security deposit violation, it would be a mistake to under estimate the importance of complying with this law if you are a landlord, and understanding its protections for tenants if your security deposit has been wrongfully withheld.

In my opinion, one of the dire consequences of Phillips is that tenants may not be able to obtain attorney fees for certain security deposit violations.  They may be able to get their full deposit back, but nothing for the expenses of hiring an attorney to assist with the case, making it cost prohibitive to hire a lawyer for such a matter: the reason why the harsh penalties of this law exist in the first place.

However, there is an often unknown law that may provide help in such a scenario.  G.L. c. 186, § 20 provides that, if there is a written lease agreement allowing the landlord to get attorney fees against a tenant, the tenant is also allowed attorney fees against a landlord for any violation of the lease agreement.  This law suggests that a tenant may be able to obtain attorney fees for security deposit violations that are not within the scope of treble damages, attorney fees, and costs, per Phillips.

If you find yourself involved with a security deposit violation, contact me for a consultation.  An experienced attorney is essential in one of these tricky matters.