Injunctive Relief

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Sometimes, a party in a landlord/tenant case needs the court to do more than simply award monetary damages or possession of the property.  In such cases, injunctive relief can be a good option.

An injunction is a court order that mandates or prohibits a party from doing a certain action.  A landlord, for example, can obtain an injunction against a tenant to enjoin them from damaging property (if they have sufficient evidence that this harm is occurring).  Tenants can also get injunctions; these are obtained frequently when a landlord refuses to fix dangerous conditions in a property.

To get an injunction, a party needs to show irreparable harm–damages that cannot be resolved through monetary damages. Fortunately, matters involving property are often sufficient for this type of relief.

If you are facing a landlord/tenant problem that requires immediate attention, consult an attorney to determine if an injunction is right for you.

Small Claims Court for Landlords and Tenants

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An option for landlords and tenants who need to sue for low amounts of money ($7,000 and under) is small claims court.  Small claims cases may be brought in District Court, Boston Municipal Court (if your case occurred in Boston) or Housing Court (if your case directly concerns a housing issue).

Compared to other courts in Massachusetts, small claims court is an informal process, intended for parties to use without the help of a lawyer (although parties may have a lawyer represent them if they chose to).  The rules of evidence are relaxed and trials are informal. In most small claims sessions, parties also have the option of trying mediation to settle their disputes.

Landlords can use small claims court to seek unpaid rent against tenants, as well as damages to the rental property.  While landlords can pursue unpaid rent against tenants in an eviction case (“summary process”), an eviction case requires a dispute over possession of the rental property.  If the tenant is no longer living in the property, summary process is the wrong forum for disputes over unpaid rent.  Moreover, a landlord cannot pursue monetary claims for damages beyond unpaid rent (such as physical damages to the premises) in summary process.  Tenants can use small claims court for claims against landlords, such as violations of the security deposit law and poor conditions in the rental property.

While small claims is useful for resolving certain disputes, there are drawbacks to this process.  For example, a plaintiff in small claims waives their right to an appeal; if they lose, the case is over.  Discovery is also limited; parties may not be able to obtain the same information from the other side as they would in another court.  Finally, small claims court is primarily for recovering monetary damages; parties are generally unable to obtain non-monetary relief (such as a restraining order or injunction).

Recommended Resource: 99 Signs You Shouldn’t Rent To That Tenant

Selecting tenants is one of the most challenging jobs for a landlord.  Renting to anyone comes with risk, and choosing the wrong tenants can be costly, both in time and money.  Landlords should use extreme care in the tenant screening process.  A helpful resource for landlords in finding the right tenant is 99 Signs You Shouldn’t Rent To That Tenant.  This guide offers things to watch out for when meeting potential tenants.

When selecting tenants, landlords should consider keeping a log of each person who views the rental property, and any specific reasons why the landlord did not offer to rent to the prospective tenants.  This will help if the landlord is ever accused of discrimination or unlawfully refusing to rent to a tenant (topics I will discuss in a future post).

Aviksis v. Murray: Payment of Attorney Fees in Landlord/Tenant Cases

The Massachusetts Appeals Court issued an important decision today on the right of parties to collect attorney fees in landlord/tenant cases.  In Aviksis v. Murray, the Court held that “guarantors” of a landlord/tenant lease could not rely on laws that allow tenants to collect attorney fees for cases brought against landlords for failure to comply with any “covenant or term of the lease” or in the defense of a lawsuit brought by the landlord. A gurantor of a lease, simply enough, is someone who assumes liability if rent is not paid or damages occur to the rental property. This is often required for tenants with limited credit history or no references.
A little background on attorney fees in civil cases.  Under what is called the American Rule, each side in a civil case pays their own attorney fees.  Even if you win the case and a judgment against the other side, you are still on the hook for your legal costs.  The exception to this rule is when a law allows one side to recover legal costs against the other or, as is common in leases, a contract provision allowing a party to obtain attorney fees if they ever need to go to Court.
In these situations where the lease allows the landlord to collect attorney fees against tenants, Massachusetts law provides an important safeguard for tenants:  tenants, in such cases, can likewise obtain legal fees against landlords for a landlord’s failure to comply with any “covenant or term of the lease” or in the defense of a lawsuit brought by the landlord. . . even if the lease does not explicitly allow attorney fees for the tenant.

In Aviksis, several tenants brought suit against their landlord for damages arising from water in the apartment.  A father of one of the tenants was a guarantor on the lease and accordingly, was countersued by the landlord for these damages.  The father won his case and attempted to recover his legal fees under the law discussed above:  G.L. c. 186, § 20.  The question for the Court was whether a guarantor of a lease was entitled to attorney fees under this law.

The Court relied on the plain meaning of the statute and held that tenants, and tenants alone, are entitled to the provisions of G.L. c. 186, § 20.  Even though the guarantor may have been in the tenants “shoes” for the purposes of this case, the guarantor does not have the same rights as the tenants under this law.

What are the take home points of Aviksis v. Murray?

  • Under Massachusetts landlord/tenant law, guarantors of leases are not treated the same as tenants.  In short, if you assume liability for a lease, do not expect to get the same protections afforded to tenants under the law.
  • Obtaining attorney fees continues to be the exception, rather than the rule, in civil litigation . . . something to always consider in deciding whether to pursue litigation.

Breaking a Landlord/Tenant Lease


What’s a lease?  A lease, simply enough, is a contract for the rental of property.  As such, a lease is enforceable at law.  If a tenant signs a lease (which is usually for a one-year term), the tenant is liable for rental payments during that period of time.

A few scenarios exist where a tenant can lawfully break a lease: active service in the military, health, safety or privacy violations by the landlord, or domestic violence abuse.  Besides those scenarios, a tenant cannot simply walk away from a lease because they choose to.  If they do, a landlord has a right to sue the tenant for the outstanding rent.

If a landlord is in a situation where the tenant breaks the lease, the landlord should try to lessen their damages by finding a new tenant.  Even if it is possible for the landlord to sue the tenant for the full amount of owed rent, collecting a judgment against a tenant is difficult.  The landlord is best off trying to recoup their losses by finding a new tenant as soon as possible.  If the landlord does end up pursuing a case against a tenant, the landlord will have a stronger argument by showing that he or she made an effort to lessen the damages from the breach of the lease, rather than just sitting idle as the rent went unpaid.  With this in mind, landlords should keep detailed records of all efforts to find a replacement tenant.

What’s a tenant to do if they need to break a lease?  Work out a deal with the landlord.  For example, a tenant could offer to assist the landlord in finding a new replacement tenant, by helping to advertise and show the apartment.  Both sides are best off trying to find an amicable solution to the problem in lieu of taking the matter to court.

Lessons from a Landlord/Tenant Judge

 One of the benefits of being a landlord/tenant lawyer is the opportunity to attend court frequently and see real cases in action.  One advantage of this is seeing how different attorney and judges approach these cases and the issues that arise in them, especially with evictions.  Recently, while waiting for a hearing, I had an opportunity to listen to a judge who was presiding over a hearing between a landlord attorney and a pro se party (a husband and wife representing themselves in court.  The judge took a great deal of time explaining how a landlord/tenant case works and offered many pointers that I thought would be useful to share here:
  • Jury v. Bench Trial:  Parties have a right to a jury trial in an eviction case.  However, just because parties have this right does not mean they should always use it.  A jury trial requires parties to strictly follow the rules of civil procedure and evidence, which can be a real challenge for a non-lawyer.  If a party wants a jury trial, they should give serious consideration to hiring a landlord/tenant lawyer for their case.
  • Timelines in an Eviction Case:  Eviction cases (“summary process”) move at a faster pace than typical civil cases.  Even if a party decides to represent themselves pro se, they need to be prepared to handle court and filing deadlines.
  • Settlement:  As said by the judge, “litigation is like getting naked in front of a room of strangers.”  A court case is never easy for any party, and requires an enormous amount of time and costs for all parties.  As explained best by this judge, a court case requires you to go before six unknown people, who have to hear your story and make a judgment.  As said best by the judge: a settlement will almost always make everyone happier than a decision by the court—a sentiment I fully agree with.
If you find yourself as a party in an eviction case and need legal assistance, contact me for a consultation.

FAQ: I Had a Lease With My Tenant, Which Has Now Expired. The Tenant Continues to Pay Monthly Rent. Is the Lease Still in Effect?

Question:  I had a lease with my tenant, which has now expired. The tenant
continues to pay monthly rent.  Is the lease still in effect?

Answer:  Yes, to an extent.  If a tenant continues to pay rent after the expiration of the lease (and the landlord accepts it) the tenant becomes a tenant-at-will (aka “month-to-month” tenant).  The prior terms of the lease remain in effect.  The major change is that the landlord may end the landlord/tenant relationship with the tenant by giving proper notice.  The landlord must give the tenant a minimum of thirty days’ notice prior to bringing an eviction (if the tenant pays rent on a longer interval than a month, such as every two months, than the notice period must be for this length of time).

Foreclosure Requirements for FHA Mortgage Loans

Mortgage loans insured by the Federal Housing Authority (“FHA”) include specific requirements for foreclosure that homeowners need to be aware of when facing a possible foreclosure.

FHA mortgage loans are insured by the federal government and are aimed at helping low-income Americans buy a home.  Because the federal government backs these loans, lenders have a greater incentive to lend to those who might not otherwise qualify for a mortgage loan.

FHA mortgages are different than a standard residential mortgage, and include specific requirements for foreclosure.  One of the most important requirements is the “face to face” meeting prior to foreclosure.  This requirement, which comes from federal government regulations, requires lenders to have a face-to-face meeting after the borrower defaults on the mortgage loan, prior to the lender foreclosing the property. Not surprisingly, few lenders comply with these requirement.

Here in Massachusetts, a foreclosing entity needs to strictly comply with the terms of a mortgage prior to foreclosure.  Several courts have found that these FHA mortgage requirements—specifically the “face to face” meeting—is a term of the mortgage and as such, must be strictly complied by the lender in order for a foreclosure to be valid.  As such, a borrower with a FHA mortgage loan has a strong defense against foreclosure if their lender has not complied with this requirement.

If you have a FHA loan and are facing foreclosure, seek the help of an experienced foreclosure defense attorney right away.

Practice Pointers: Is It Worth Pursuing a Claim for Money Against a Tenant?

Here is a question I am often asked from my landlord clients:  Can I recover the rent that I am owed from a tenant?

The answer:  it depends.  In deciding whether to pursue a claim for damages, a landlord needs to ask themselves two questions:  (1) is the tenant working and/or have any assets and (2) can the tenant be located.

The picture above is a spoof of the old adage: you can’t get blood from a stone.  In other words, if the tenant does not have documented income and has no assets, the landlord has no way to collect their judgment.  Even if the landlord wins a claim for monetary damages, it needs a source of income or asserts to obtain the money owed.

The second major consideration is whether the landlord is able to locate the tenant, after he or she has left the rental unit.  In order to bring any type of lawsuit, a party needs to be properly served.

Locating where a person is living is difficult if they do not own real property.  It is impossible to garnish the wages if the party has a job, but again, the the landlord needs to know where the tenant is working.

With this in mind, landlords should gave careful consideration to whether it is worth pursuing a claim for monetary damages against a tenant.  In many cases, the costs of pursuing this—in both the landlord’s time and legal expenses—will far exceed anything that can be recovered from the tenant.  Often, landlords are best off “cutting their losses” by getting the tenant as quickly as possible, even if that means forgoing any claims for money.