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.

Overview of Summary Judgment in Massachusetts

Summary Judgment in Massachusetts

Summary judgment is a common part of civil lawsuits, and a topic that comes up frequently in discussing what to expect in litigation.  Summary judgment applies to any civil case, but I wanted to do a post on this topic because it frequently comes up in discussions with clients on the course of a lawsuit.

Overview of a Lawsuit

A lawsuit, simply put, is a demand for a court to offer a remedy against another party.  This can include a demand for money, possession, or equity (such as a court order demanding a party to do, or not do, something).  A party served with a lawsuit has an opportunity to present a defense and convince the court why it should not find for the plaintiff.

After service of a lawsuit and an answer by the defendant, the parties have an opportunity to do discovery, where they can learn about each other’s case.  Following discovery, the lawsuit is then ripe for trial.  However, either party can seek a summary judgment motion as a means of winning the case without trial.

What is Summary Judgment?

To understand summary judgment, it is helpful to first understand the role of a trial in a civil case.  The purpose of a trial is for the jury (or judge, if there is no jury) to decide which “side of the story” to believe.  Doing so requires the judge or jury to hear the disputed facts and determine which side is more credible.  Once doing so, the jury or judge applies these determined facts to the law, and offers a final judgment in the matter.

Summary judgment is an attempt to get a court judgment without trial.  Summary judgment requires a party to prove that (a) there are no genuine issues of material fact and (b) the moving party is entitled to judgment as a matter of law.

For the first element, the moving party must show that the facts are not disputed.  For example, in a landlord/tenant eviction for non-payment of rent, a landlord seeking summary judgment would need to show that there is a tenancy agreement between the landlord and tenant, rent is owed, and all of the required court papers were prepared and served.  If the tenant disputes any of this, such as alleging that no rent is owed, there would be a dispute of fact, and summary judgment would not be allowed.  Instead, a trial would be required.

For the second element, “being entitled to judgment as a matter of law,” the moving party must show that the law provides the remedy they are asking the court for.  It is possible to have a case where no facts are disputed, but the law simply does not provide the relief that the claimant is seeking.

Summary Judgment in Practice

Summary judgment is often requested in lawsuits, as it avoids the need for a trial.  Rather than putting on a full trial before a judge or jury, summary judgment can allowed a case to be decided solely on the papers, and avoid enormous time and legal fees.

The decision to seek summary judgment, however, must be made carefully.  I often seek lawyers attempt a summary judgment motion where the facts are clearly disputed, and the motion merely delays the case and adds unnecessary costs to the case.  In some cases, simply bringing the case to trial is the much more logical choice.

On the other hand, summary judgment can be effective at getting your case resolved quicker than trial.  An effective summary judgment motion, however, requires that the facts and law be presented in a proper manner to allow for this relief.

Conclusion 

The benefits of having an experienced attorney on your side can make all the difference in winning a case on summary judgment.  If you find yourself in need of help with a lawsuit, contact me for a consultation.

Advice for Moving in Boston

Advice for Moving

As hard as it is to believe, summer is about to end, meaning that Boston’s unofficial “moving day” is about to begin.  With dozens of college and graduate students, young professionals, and other renters in the Boston area, the beginning of September is the busiest time of the year for moving.  If you are one of the many who will be moving this week, here is some advice for moving.  While this is aimed for those in Boston, this advice generally pertains to any landlord or tenant in Massachusetts.

Get Everything in Writing and Save Copies For Yourself

Arguably the most important advice for moving is to get everything in writing, and keep copies for yourself.  If you’re signing a lease, giving or accepting first and last month’s rent, or otherwise agreeing to an particular term of your tenancy, you want this in writing.  Just as important, be sure you keep copies for yourself.

Take Photos of An Apartment When Moving In and Out

If you are moving in or out of an apartment, take advantage of your smartphone’s camera and take pictures of your unit.  Disputes over the condition of a rental unit can easily be resolved if the tenant or landlord has photographic evidence of the apartment.  Even if you are certain that no problems will arise, take five minutes and do this simple step.  Even better, ask a friend or family member to come with you to the apartment, so you have a witness if such a problem does come up.  This is a simple piece of advice for moving that can make all the difference later on.

Know What to Do About Poor Conditions in a Rental Unit 

Another important piece of advice for moving is to know what to do if your apartment is not in the condition it is suppose to be.  In such a case, you should immediately contact the landlord, report the problem (in writing), and give the landlord an opportunity to correct the defects.  If the landlord fails to take care of it, you can file a complaint with the City of Boston Inspectional Services (if you are renting outside of Boston, contact your town or city government for the appropriate agency to file a complaint).

It is important to know that a landlord cannot retaliate against a tenant for filing such a complaint.  In other words, the landlord cannot “punish” a tenant by evicting them or changing the terms of their tenancy.

For landlords, be certain to address complaints in an apartment promptly.  Failure to do so can lead to larger problems down the road.

Be Aware of Massachusetts’s Security Deposit Law

Massachusetts has one of the strictest security deposit laws in the country.  This law is so long and detailed that most do not understand all of its provisions, and many landlords fail to comply with it.  For this reason, I advise that landlords do not accept a security deposit.  If you are a landlord and have accepted a security deposit, consider speaking to a landlord-tenant attorney to ensure you are in compliance with this law.

For tenants, problems with security deposits often arise when tenants attempt to get their deposits back.  If you are having such a problem, an attorney may be able to help.  Massachusetts’s security deposit law provides for attorney fees and treble damages against landlords who do not follow this law.

Don’t Get “Storrowed”

In addition to always having traffic, Storrow Drive is known for being a “trap for the unwary” on moving day.  Trucks are not allowed on this parkway, and each year, at least one renter makes the news for getting stuck under one of Storrow Drive’s many bridges.  Don’t let this be you.

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

Help With A Security Deposit

Help With A Security Deposit

Both tenants and landlords can benefit from help with a security deposit.  Massachusetts’s security deposit law is not light reading, and often requires even the most experienced landlord-tenant attorney to review the law more than once to understand its many, many provisions.  An experienced attorney can often provide invaluable help with a security deposit matter.

Landlords Who Have Accepted A Security Deposit From a Tenant

I, along with many other attorneys (as well as a former Housing Court judge) recommend that landlords do not take a security deposit from a tenant.  The law has too many requirements for a landlord to comply with, and the risks of violating the law are steep, which can include treble damages, attorney fees, and costs.

For landlords, help with a security deposit often involves determining whether a landlord complied with the law’s detailed requirements.  If a landlord has erred in holding one of these deposits, an attorney can often help assist a landlord in avoiding or minimizing the damages that can arise from violating this law.

If you’re a landlord, don’t make the assumption that you need to wait until a problem arises to get help with a security deposit.  A consultation with a landlord-tenant attorney can often help determine if you have violated any part of the law, and determine the best way to avoid a larger problem down the road.

Tenants Who Cannot Get Their Security Deposits Back

For tenants, help with a security deposit often involves legal action against a landlord for failing to properly return a deposit.  Massachusetts’s security deposit law explicitly provides for attorney fees in such cases: the purpose being to give tenants incentives for pursuing these claims.  A landlord-tenant attorney can help you determine if you have grounds for pursuing a security deposit claim and the best court for pursuing such a matter.

Conclusion 

I provide assistance to both landlords and tenants with security deposit matters.  My experience in representing both types of clients provides me a unique perspective on this area of law.  If you find yourself in need of help with a security deposit matter, contact me for a consultation.

 

 

Overview of Housing Court Expansion

Housing Court Expansion

After years of stalled legislation, housing court expansion has finally occurred in Massachusetts.  The recently passed 2018 budget provides for statewide Housing Court, allowing all towns and cities access to a regional division of the Housing Court.  Previously, a large segment of Massachusetts towns and cities–including Somerville, Medford, and Chelsea–had no access to a Housing Court division.  This Housing Court expansion allows landlords and tenants from any part of the state to have their case heard in Housing Court.

Overview of Housing Court

Massachusetts’s Housing Court can hear cases for matters involving the health, safety, or welfare of the occupants or owners of residential housing.  The most common cases in Housing Court are eviction (“summary process”) matters; the Boston Housing Court reportedly hears over 150 new evictions each week.  Housing Court functions similarly as any other court in Massachusetts, but comes with the benefit of judges, clerks, and staff who are familiar with housing law.

Transfer to Housing Court 

A unique provision of Housing Court is the ability by either party to transfer a case into Housing Court from another court.  If you are a tenant in an eviction case filed in District Court (a popular venue for eviction cases), you have a right to have your case transferred to the appropriate Housing Court division.  With the Housing Court expansion, this option is now available to all of Massachusetts.  A Housing Court transfer is a simple process, requiring the filling out of a simple form with the original court and the appropriate Housing Court division.

Although Housing Court expansion became effective on July 1, 2017 (pursuant to the 2018 budget), this change is not yet reflected on the Housing Court website or in the law itself.   The 2018 budget is clear, however, that Housing Court expansion has already occurred.  Several eviction cases have already been transferred from District Courts in cities that were not previously under Housing Court jurisdiction, and I expect more to do so in the coming months.

 Is Housing Court Right For Your Case?

Housing Court expansion will inevitably lead to tenants and landlords asking whether this court is the place to bring their case.  Like with most legal matters, the answer depends.  While many argue that Housing Court favors tenants at the expense of landlords, this is too much of a stereotype to label for every Housing Court division in Massachusetts.  The decision on whether to pick Housing Court for your case is an important one, which you should make with the assistance of an experienced landlord/tenant attorney.

Top Five Landlord Mistakes

Landlord Mistakes

In this blog post, I want to discuss the top five landlord mistakes made by those renting residential property in Massachusetts.   Massachusetts has numerous laws protecting tenants, and a landlord’s failure to comply with these regulations can cause major problems down the road.  Fortunately, these landlord mistakes are easily avoidable.

 1.  Accepting a Security Deposit From a Tenant

Few things get a landlord into more trouble than Massachusetts’s security deposit law.  Take a minute (or several!), attempt to figure out all of this law’s requirements, and you’ll learn quickly why the law is a disaster waiting to happen.  Few landlords comply with all of the law’s detailed requirements, and the failure to do so can result in treble damages, attorney fees, and costs.  The risks for landlords just aren’t worth it.

As I have suggested before, a landlord who wants a security deposit should make this part of their monthly rent.  For example, if a landlord wants a $1,200 security deposit, they should add (or set aside) $100 each month, rather than requesting it upfront from the tenant.  This keeps a landlord from having to comply with the security deposit requirements.  Moreover, unlike a security deposit, this money belongs to the landlord if no repairs need to be done at the end of the tenancy.

2.  Not Choosing Tenants Carefully 

Another common landlord mistake is not choosing tenants carefully.  A bad tenant can cause enormous problems to landlords.  Evictions can be long and expensive, and collecting a judgment against a tenant can be difficult.  Try to avoid these problems in the first place by selecting  reputable tenants.

3.  Not Using a Written Rental Agreement 

Landlords should always use a written rental agreement with tenants, regardless of whether it is a a month-to-month agreement or lease.  A written agreement lays out all of the expectations of the landlord and tenant, and can avoid problems from coming up later on.  Moreover, if a landlord expects a tenant to pay for any of the apartment’s utilities, a written agreement is a requirement under the state sanitary code.

4.  Failing to Maintain Rental Property

If you own rental property, the law requires you to maintain it.  Massachusetts’s state sanitary code contains detailed regulations for rental property, and many towns and cities have their own requirements for rental property as well.  A tenant must generally provide notice, and a reasonable opportunity to the landlord to address the problem, before the landlord can become liable for not maintaining the property, but a landlord should avoid these problems in the first place by keeping on top of a rental property’s maintenance and care.

5.  Attempting an Eviction Without An Attorney 

If a landlord needs to get rid of a tenant, an eviction is required.  A landlord should never try and do an eviction on their own.  While it may be tempting to try and avoid the costs of an eviction, the consequences of making a mistake in one of these cases can be far more expensive down the line.  Moreover, an experienced landlord attorney can often help finds ways to make the eviction process go as quickly as possible.

If you find yourself in need of legal assistance, contact me for a consultation.