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.

g19P1342

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.

Evictions in Massachusetts on Hold Through October 2020

Evictions in Massachusetts are now on hold through October 2020, per Governor Baker’s extension of the eviction and foreclosure moratorium. The moratorium was set to expire on August 18th, and is now extended through October 17, 2020.

As I have written before, the eviction moratorium has put the brakes on nearly every eviction in Massachusetts. With the exception of emergency matters, no eviction cases may be filed until the end of the moratorium. Tenants still remain liable for rent, but without evictions, there is no immediate option for dealing with a non-paying tenant.

Without evictions in Massachusetts, what should landlords do?

  • For non-paying tenants, landlords should send monthly notices of owed rent. It is critical that such notices make it clear that no such eviction will occur during the moratorium.
  • Landlords can and should speak with tenants about problems that arise during the eviction moratorium, including unpaid rent. It may be possible to work the matter out with out court involvement, such as through a repayment plan.
  • Landlords should always keep good records of all landlord-tenant matters . . . especially now. If an eviction becomes necessary, such records are vital for a successful case.

I’ve heard from many landlords who are struggling during the eviction moratorium, and who are understandably concerned about the future. While the moratorium remains in place, it will pass . . . just like the COVID-19 pandemic.

In the meantime, if a landlord has a situation that they believe is a true emergency, they should speak to an experienced attorney. Even with the moratorium in place, I’ve been able to help landlords with some difficult tenant cases, and would be happy to speak with you about your matter. Contact me for a consultation.

Landlord-Tenant Screening in Massachusetts

An important tool exists for landlord-tenant screening, one that is completely free and easy to use.  All of Massachusetts’s trial court dockets are online, providing both tenants and landlords with the ability to see filed eviction cases across the state.  The website is http://www.masscourts.org.

Eviction (“summary process”) cases are almost always filed in District Court or Housing Court.  To use masscourts.org for landlord-tenant screening, you need to search individually for each court.  The site doesn’t allow a general search for all trial courts across the state.  

However, if you know where the tenant or landlord has resided or owner property (or have a reasonably good idea), you can narrow down the applicable courts.  Bear in mind that searches on the site can be sensitive, and slight variations in names may not produce the desired results (the website is not Google!).

Search results will tell you if a case has been brought by or against a particular party, and a history of the case.  Search results generally will not provide details on the case, such as the reason(s) for evictions and counterclaims.  Information such as this can generally only be obtained by visiting the court and reviewing the case file.

For this reason, masscourts.org isn’t perfect for landlord-tenant screening.  However, it is useful for determining if a particular tenant has been frequently evicted, or if a landlord has often been subject to complaints from tenants.

An important word of caution, from someone who represents landlords and tenants: don’t assume the worst because a party has been involved in an eviction case.  Tenants are sometimes named in eviction cases for no-fault reasons, such as the adult children of parents who are being evicted.  Likewise, claims can be raised against a landlord that aren’t really meritorious, and are only meant to be a “delay” tactic.  In short, while masscourts.org is helpful for landlord-tenant screening, it should never be the only deciding factor in selecting a tenant or landlord.

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

Evicting a Tenant: What To Do

Evicting a tenant is the process required for obtaining possession of rental property. Evictions, known in Massachusetts as summary process, are done through an expedited court process; most often brought in Housing Court or District Court.

A recent news article reveals a disturbing trend about many landlords, due to the ongoing coronavirus pandemic, attempting to evict tenants on their own; a process commonly referred to as “self-help evictions.” Self-help evictions are highly illegal in Massachusetts, and can get landlords in an enormous amount of trouble.

Evicting a Tenant: When Is It Required?

An eviction case is required for obtaining possession against any tenant, regardless of the reason why the eviction is necessary. Although there is a limited exception for tenants engaging in illegal behavior, an eviction is generally required in every other circumstance.

No Self-Help Evictions

A “self-help eviction” is a case where a landlord attempts to remove a tenant from the rental property without a formal court case. Changing the locks, cutting off utilities, and threatening a tenant can all be considered a self-help eviction, and are expressly forbidden under Massachusetts law.

An eviction case requires a landlord, in most cases, to provide the tenant with a notice to quit, serve the tenant with a formal eviction summons, and appear in court. The process takes time and, understandably, can be frustrating, especially when it is against a non-paying tenant.

Presently, there is an eviction moratorium in Massachusetts, which is preventing the filing of almost all eviction cases for the foreseeable future. As such, it is understandable why some landlords may be tempted to bypass a formal eviction case against a tenant. Doing so, however, is a terrible idea, and will be far more trouble than it is worth.

Conclusion

Instead of considering a self-help eviction, contact me for a consultation. While evictions are not going forward now, I can explain the process to you, what can be done in the meantime, and how to prepare for such an action when the courts reopen.

Evictions After Coronavirus

Next week, I’ll be a panelist on a webinar for the Massachusetts Bar Association concerning evictions after coronarvirus. This is a topic that promises to be extremely relevant once the pandemic ends.

What do landlords need to know about evictions after coronavirus?

New Requirements for Notices to Quit

As I have written before, the federal CARES Act has new requirements for notices to quit for non-payment of rent. This applies to only certain categories of landlords, but the reach of this law is large. Landlords need to check whether this law applies to them, and err on the side of caution if there is any question that it does.

Inevitable Delays With Court Proceedings

No doubt, evictions after coronarvius will take much longer to resolve than before. An eviction case in Massachusetts (referred to as a “summary process” action) is intended to be “just, speedy, and inexpensive.” The growing backlog of cases, unfortunately, will put a strain on the court’s resources. Landlords will need to keep this in mind when deciding to pursue an eviction.

Flexibility With Stays of Execution

When evictions after coronavirus resume, it is inevitable that many tenants will request stays of execution. A stay of execution is a request for a court to delay the time by which the landlord can assume possession of the rental property.

Although the law is written only for no-fault evictions, most judges take the position that a stay is permitted in any eviction, under the right circumstances.

Given the multitude of problems arising from the pandemic, I am inclined to think that most judges will be sympathetic to tenants facing eviction after coronavirus. Landlords need to keep this in mind when negotiating with tenants.

Final Thoughts

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