Section 8 Evictions

foreclosure appeal

Section 8 evictions, compared to other residential evictions in Massachusetts, follow a slightly different set of rules and restrictions. This week, the Appeals Court issued a decision clarifying the required notice to quit for Section 8 evictions. The full decision, Scott Realty Group Trust v. Charland, is below.

Ironically, I had been working on this exact issue the day before the Appeals Court issued this decision. I wish the courts would consult me before issuing their decisions!

What is Section 8?

Section 8 is a federal program that provides housing vouchers to those with low income. Section 8 caps the amount that participants must pay in housing (usually 30% of gross income) and subsidizes the rest.

Section 8, importantly, pays this voucher directly to the landlord and does not provide rental housing directly. Section 8 requires landlords and tenants to enter into a specific type of lease and rental paperwork.

Notices to Quit for Section 8 Evictions

Notices to quit are required for nearly every eviction in Massachusetts. For Section 8 evictions, however, the required paperwork for these tenancies have detailed requirements about what must be included in these notices, and include limitations on the potential grounds for eviction.

One of the central issues in this case was whether a Section 8 tenant, who had become a tenant at will (a “month-to-month” tenant) could be evicted for no-fault. Such a scenario occurs when a tenant has stayed pass the lease term, but continues to stay in the rental apartment and pay rent.

Typically, a tenancy at will can be ended by either the landlord or tenant, with no reason needed from either side. However, because the Section 8 paperwork seemed to suggest that a reason is needed for a Section 8 eviction, it remained unclear whether a no-fault eviction was ever allowed for Section 8 tenancies.

The court concluded that a no-fault eviction could be brought against a Section 8 tenant. However, unlike other no-fault evictions, the notice to quit for a Section 8 tenant is required to include an explanation for eviction. Even though no reason was required for the eviction, the landlord needed to expressly state that to the tenant in the notice.

Practical Implications

A paragraph at the end of this decision summarizes these points about evicting a Section 8 tenant:

This case demonstrates that landlords of Section 8 tenants
must be careful to comply with the notice provisions contained
in paragraph 8(g) of the HAP contract tenancy addendum even where the tenancy is at will. Those notice provisions do not
displace the landlord’s ability to terminate an at-will Section
8 tenancy, but they do require that the tenant receive notice of
the reason for the termination. That reason must be contained
either in the notice to quit or the summary process complaint.
Where there is cause for the termination, either the notice to
quit or the summary process complaint must so state; and the
same is true where there is no cause for the termination.

I would add that, in addition to specific requirements on notices to quit, Section 8 often requires that the housing administrator be notified of any eviction proceeding. For this reason, landlords need to review Section 8 paperwork carefully before starting the eviction process (or get the assistance of a qualified landlord-tenant attorney).

Conclusion

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

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Massachusetts State Eviction Moratorium Ends: Three Things to Know

The Massachusetts state eviction moratorium officially ends today, with Governor Baker declining to extend this protection for tenants. Here, I’ll discuss three things for landlords to know about the status of evictions in Massachusetts going forward.

A Federal Eviction Moratorium, Under the Centers for Disease Control and Prevention (“CDC”), Remains in Effect

Although the state eviction moratorium has ended, a federal regulation remains in place through the end of 2020. Compared to the state eviction moratorium, the CDC regulation is far less burdensome for landlords.

The CDC regulation only applies to evictions for non-payment of rent, and requires tenants to take the affirmative step of invoking the protections of this regulation, through an affidavit to the landlord. Under this regulation, a tenant (who meets specific criteria) prohibits a landlord from evicting a tenant through December 31, 2020.

Importantly, this regulation does not prohibit the filing of an eviction case; it only prevents the actual eviction of a tenant. In other words, a eviction case may go forward, but the actual process of removing a tenant from rental property must wait until next year.

The prior state eviction moratorium, in contrast, stopped all stages of the eviction process, and applied to nearly every type of eviction.

New Requirements for Non-Payment of Rent Notices

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which passed earlier this year, requires certain landlords to use a thirty-day notice to quit for non-payment of rent eviction cases (as opposed to a standard fourteen-day notice to quit).

This requirement only applies to landlords with a federally backed mortgage, or a participant in a federal grant or voucher. The language of this law is broad, and covers a wide array of different federal programs. For this reason, landlords should err on the side of caution when deciding whether to send a fourteen or thirty day notice for non-payment of rent.

It remains unclear how long this requirement remains. For now, I recommend following this requirement for the imminent future.

New Eviction Procedures in Housing Court

The procedure for evictions in Housing Court has changed, and will likely never be the same again. Before, eviction trials were automatically set by the court’s schedule, on a weekly basis. Now, trials will be scheduled following an initial conference with the court’s staff.

Hearings and trial, importantly, will likely done through Zoom, with few in-person hearings at courthouses.

Although the formal protections of the state eviction moratorium are over, Housing Court still has the inherent ability to offer tenants more time to stay in a rental apartment, under appropriate circumstances. I suspect, strongly, that Housing Court will continue to entertain such requests from tenants in the months to come.

As a practical matter, there is an enormous backlog of eviction cases in the courts now, with many more to come. Landlords need to be practical and realistic about what to expect from the eviction process going forward.

Final Thoughts

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

Landlord Advice: Five Tips for Renting in Massachusetts

Landlord advice is a topic I am often asked about for those renting in Massachusetts. Here, I want to share several tips on this important topic.

Use a Written Agreement for All Tenancies

There are generally two options for renting to tenants: a lease (with a specified duration for the tenancy) or a tenancy-at-will (where either party can end the tenancy with proper notice). While leases are generally in writing, tenancies-at-will (often known as “month-to-month” rentals) can be done verbally.

Verbal tenancy agreements should always be avoided. A written agreement should be used for any tenancy relationship and include, at a minimum, the amount of rent, terms of the tenancy, and responsibility for payment of the utilities.

Keep Extensive Records

Records are critical for landlords. If a dispute ever arises with a tenant, having such records are vital for a proper defense.

Records should always be kept of all rent billed and received from a tenant, all work done on the rental property, and all communications between the landlord and tenant.

Don’t Take A Security Deposit

Massachusetts’ security deposit law is long, complex, and impossible to fully understand. Few landlords are in perfect compliance with this law, and any violation can be expensive and time consuming.

Know the Housing Discrimination Laws

State and federal law prohibits housing discrimination. A landlord needs to know these laws and ensure that they are following them. It is a good idea for landlords to review these laws every year, as they do change, and a refresher is always a good idea.

Be Compliant With the State Sanitary Code and Local Zoning Ordinances

All residential housing in Massachusetts comes with an implied warranty of habitability. This means that the property must be fit for a tenant to live in. This responsibility cannot be waived or avoided, under any circumstances.

The guiding star for complying with this warranty is the state sanitary code. A landlord in compliance with this code will generally avoid most potential claims arising from the condition of the rental property.

A landlord should similarly be mindful of local zoning ordinances, and ensure that a property is allowed for renting under the applicable rules and regulations.

Final Thoughts

Renting in Massachusetts isn’t easy, but having a solid background of the applicable laws is critical for avoiding problems in this area of law. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Evicting Commercial Tenants in Massachusetts

Evicting commercial tenants is a different process than a residential eviction, which are more common in Massachusetts. Although commercial evictions often occur through the same court procedure, the underlining law is different.

With the existing eviction moratorium expected to expire in several weeks, commercial evictions will likely resume soon and, given the economic repercussions of COVID-19, be heavily litigated in the months ahead.

Filing a Commercial Eviction Case

Commercial eviction cases are generally through the same eviction process as residential cases, known as summary process. Summary process cases move at a much quicker pace than other civil cases.

Such cases are generally filed in District Court, but may be filed in Superior Court if the owed rent is at least $25,000.

Importantly, commercial evictions may not be brought in Housing Court.

Under Massachusetts law, business entities (ex. corporations, limited liability companies) and trusts must be represented by an attorney in court (except for small claims cases).

As most commercial landlords exist as a business entity or trust, it is important to have an attorney handling the case. Courts can and will dismiss an eviction if a non-attorney attempts to handle it on their own.

Fewer Defenses for Commercial Tenants

Compared to residential evictions, there are far fewer defenses available for tenants in commercial evictions . The law allows landlords to make commercial tenants largely responsible for the care and maintenance of the rented premises. Many laws protecting residential tenants, such as the onerous security deposit law, do not apply to commercial tenancies.

Final Thoughts

Evicting a commercial tenant must be done with care and with knowledge of the applicable laws and summary process rules. If you need assistance with such a matter, contact me for a consultation.

Office Space During COVID-19

Office space during COVID-19 has become a tricky issue for commercial landlords and tenants. The ongoing federal and state moratoriums have strongly encouraged (and in many cases, required) workers to stay at home, and avoid using commercial offices. Coronavirus, moreover, has put many businesses out of operation.

This has resulted in many problems over office space during COVID-19, namely, whether the pandemic excuses either party from a written lease.

Overview of Commercial Leases

Compared to residential leases, commercial leases allow tenants to assume much greater responsibility for leased property. While residential property comes with detailed requirements on what is and is not allowed for housing, few requirements exist for commercial property.

Commercial leases tend to be much longer in term than residential: it is not uncommon for such tenancies to last several years, and require commercial tenants to assume all utilities, taxes, and other expenses associated with the leased property.

Under commercial leases, tenants are often asked to waive their right to a jury trial in the event that a legal dispute arises, and pay a landlord’s attorney fees if a landlord needs to use legal action against a tenant.

Options for Office Space During COVID-19

If a commercial landlord or tenant has a problem continuing a tenancy during COVID-19, the first step is to attempt to resolve the matter through negotiation. It may be possible to work out a repayment plan or deferment of any owed rent, until the pandemic passes. Such an arrangement is often to both parties’ benefit.

If such a resolution cannot be reached, the next step is to review the lease itself. Many leases have force majeure clauses, which excuse contract liability for an unforeseen circumstance. Even without such a claim, the law (in some scenarios) permits a contract defense based on impossibility of performance or impracticability.

Final Thoughts

COVID-19 remains an ongoing challenge to commercial landlords and tenants alike. If you need assistance with such a matter, contact me for a consultation.

Selling a Home With Tenants In It: What to Know

Selling a home with tenants in it is a topic that often arises with the listing and purchasing of real estate. While it is common to sell property that is occupied with tenants, both buyers and sellers should be aware of certain topics that often come up in such matters.

Tenancies Remain After the Sale of Rental Property

The most common question I get about selling a home with tenants is whether a tenancy remains after the new owner purchases the rental property. In other words, can a new owner of rental property immediately terminate existing tenancy agreements?

Tenancy agreements, whether they are through a lease or a tenancy at will (“month-to-month”) do not end simply because property is sold.

This needs to be kept in mind before committing to a property sale, if a property must be sold vacant.

If a purchase agreement requires a property to be sold without tenants in it, this needs to be addressed by the seller, either through an agreement with the tenants or an eviction. The mere sale of property, on its own, will not require any existing tenants to vacate the property.

Be Extremely Careful With Security Deposits

All landlords need to exercise extreme care with Massachusetts’ security deposit law. This law regulates the acceptance, holding, and return of a security deposit, and comes with severe penalties if violated.

This law also has specific, detailed requirements for handling a security deposit when property is sold. Both buyers and sellers of rental property need to be aware of these requirements and how to properly handle such a deposit in these circumstances.

Be Mindful of the Responsibilities of Being A Landlord

Landlording comes with specific duties and responsibilities, including (but not limited to) prohibitions on housing discrimination, a duty to keep rental property habitable, and a requirement to use a formal eviction process should a landlord need to evict a tenant.

Failure to comply with any of these requirements can be highly problematic for a landlord.

These responsibilities are the same regardless of whether the buyer of property with tenants intends to remain as a landlord, or no longer wishes to keep renting after the tenants leave.

Final Thoughts

As with most legal matters, the best way to avoid problems is to prevent them in the first place. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Avoiding Housing Discrimination Claims: Three Tips for Landlords

Avoiding housing discrimination claims is a must for any Massachusetts landlord. Such claims come with enormous penalties and exposure, and are frequently litigated in Massachusetts.

Even landlords with the best intentions can have problems with these matters if they are not careful. Here, I’ll discuss three tips to help landlords avoid housing discrimination claims.

Know the Law

While it may sound obvious, knowing the law is the most important tip for avoiding housing discrimination claims. Both state and federal law prohibit housing discrimination. State law, however, typically provides greater protections for tenants, and is the law that landlords should pay particular attention to.

I’m sometimes asked about exceptions to fair housing laws. Some exist, but in my opinion, landlords are best to assume that they are covered by all applicable housing discrimination laws. Doing so keeps one’s potential liability to a minimum.

Emotional support animals, in particular, have become an increasingly large source of these claims. I’ve written and presented on this topic in the past.

Keep Detailed Records For All Applicants and Tenants

As with every landlord-tenant matter, landlords should keep detailed records on all matters concerning applicants and tenants. Housing discrimination claims often come up months (and sometimes years) after the alleged discrimination occurred. Having good records is the key to defending against such charges.

Be Consistent With All Applicants and Tenants

Housing discrimination often arises when an applicant or tenant believes they were treated differently than a similar, other applicant or tenant. To avoid potential discrimination claims, landlords should be consistent in their dealings with such persons.

For example, a landlord should use similar questions when reviewing all potential applicants for tenants. If it is learned that a landlord required certain information from one applicant that was not requested from another, this can be grounds for a potential discrimination claim.

Landlords sometimes believe that housing discrimination requires landlords to rent to those tenants under these protected classification. This is incorrect: housing discrimination simply means that a landlord cannot treat an applicant or tenant differently solely due to their protected classification. If the landlord has a non-discriminatory basis for their conduct, this can be a defense to a charge of discrimination.

Final Thoughts

Housing discrimination claims are a nightmare for landlords. Avoiding such matters is the easiest way of limiting a landlord’s liability from such claims. If you need assistance with such a matter, contact me for a consultation.

Eviction Mistakes: Untimely Filing of Court Documents

The Massachusetts Appeals Court issued an important decision this week on eviction mistakes arising from the untimely filing of court documents. The full decision is below.

Evictions 101

Evictions, known in Massachusetts as “summary process” cases, are done to obtain possession of a rental property from tenants. The intended goal of these cases are to be “just, speedy, and inexpensive.”

With this in mind, evictions move at a much faster pace than most other cases. Evictions can end up in trial less than a month after being filed in court.

Eviction Mistakes: Not Timely Filing Court Documents

A critical part of eviction cases are the deadlines for filing documents. Court filings for eviction cases come with strict deadlines, and the failure to meet these deadlines can be fatal to one’s case.

In this case, the defendant wished to appeal an eviction decision, and filed the notice of appeal after the ten-day deadline. Compared to other types of cases, eviction cases come with an incredibly tight deadline, with little room for error if it is missed.

As this decision notes, case law holds that a court has no jurisdiction to hear an eviction appeal if one is filed after this deadline. Although the defendant’s attorney claimed he never received a written notice of the decision, and therefore did not know that the appeal deadline had begun, the Appeals Court nonetheless still dismissed the appeal.

Practical Implications

Years ago, I won an appeal on a nearly similar issue. These decisions emphasize a critical mistake to avoid with evictions: the importance of timely filing court papers. The failure to do so can be highly problematic in such a matter.

Like the Appeals Court, I am very sympathetic to the defendant in this case. Things do get lost in the mail, especially now, which can be a real problem for those involved in an eviction case (or other legal matter).

An important way to avoid this is to keep an eye on the online court docket for an eviction case. This way, if something is lost in the mail, you can still learn of the case status and when a decision is issued.

Conclusion

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

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Sherwin Law Firm Prevails in Consumer Protection Law Cases

Although the COVID-19 pandemic has slowed the judicial process in Massachusetts, cases are still going forward. I’m pleased to write that I obtained two favorable decisions for Consumer Protection Law cases: one in state court and the other in federal court.

I didn’t win these cases . . . yet. Rather, I prevailed against the opposing sides’ attempt to dismiss each matter at the start of the case, for failure to state a claim upon which relief can be granted.

My opposition argued that our lawsuits didn’t have any merit, and should be dismissed at the onset of the case. The courts, however, agreed with me that my clients had viable lawsuits and were entitled to their day in court.

These cases, which concern issues of foreclosure defense, can and will be dismissed by courts if not properly drafted. In both cases, I faced opposition from two excellent attorneys who served their clients well.

What is the Consumer Protection Law?

The Consumer Protection Law, also known as “Chapter 93A”, protects consumers from “unfair and deceptive business practices.” There are several laws that fall under Chapter 93A, but the relevant portion for consumers is Section 9.

Chapter 93A has an incredibly broad reach, and covers nearly every area of law that can impact consumers. While my cases discussed above concern foreclosure, Chapter 93A often comes up in landlord-tenant disputes, debt collection matters, and a myriad of other consumer issues.

“Unfair and deceptive business practices” under this law is purposely broad and can cover an infinite number of violations. Moreover, the Attorney General is permitted to issue regulations that make certain practices automatic violations of Chapter 93A.

Benefits of the Consumer Protection Law

Because the Consumer Protection Law is broad, it can be used for many types of misconduct that are not otherwise violations of the law. Chapter 93A, importantly, also includes equitable powers, which allows a court to do more than just issue monetary damages.

A prevailing party under Chapter 93A, under the right circumstances, is also entitled to attorney fees.

Chapter 93A, importantly, allows courts to impose penalties on parties who refuse to settle cases that should be resolved without a lawsuit. This provides a strong incentive for parties to settle cases on their own.

Conclusion

Preparing a Chapter 93A case needs to be done properly. Even before a lawsuit is file, a claimant (in most cases) needs to serve a demand letter to the opposing party, in an attempt to resolve the dispute prior to court. Once a case is filed, a claimant must be sure to make a strong case that the other side violated this law.

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

Massachusetts Eviction Moratorium Goes to Court

The Massachusetts eviction moratorium, which has been in place since March, is off to court. A group of Massachusetts landlords have brought a lawsuit challenging the legality of this order, and have asked for a preliminary injunction, requesting that the court immediately stop the eviction ban while the case proceeds.

It would take much longer than a blog post to discuss all of the legal arguments for and against the Massachusetts eviction moratorium, but here’s a quick summary of some of the major points:

  • Landlords argue that the moratorium interferes with the right to access the courts, and the separation of powers between the legislative and judicial branches
  • Landlords argue that the ban is a constitutional “taking” of property, where landlords are deprived of property without compensation
  • Landlords argue that the eviction moratorium interferes with private contracts (leases)

This court case, which was filed in Suffolk Superior Court, is being followed by another legal action in federal court, concerning federal constitutional issues.

Attorney Richard Vetstein and Attorney Jordana Greenman represent the landlords, and did an superb job representing their clients. I’m not familiar with the attorneys who represented the Commonwealth, but they did an excellent job as well.

Judge Paul Wilson is hearing this case, and will be issuing a decision soon. I’ve had the opportunity to argue before Judge Wilson, and can attest that he is a good judge who will issue a well-reasoned decision on these important issues of law. Stay tuned.

If you need assistance with a landlord-tenant matter, or have a question about the eviction moratorium, contact me for a consultation.