Ending a Lease Early: What to Know

Ending a lease early is a matter that often arises when either the landlord and/or the tenant wishes to terminate the rental term before the designated date in the lease agreement. Several factors must be considered when such a matter arises.

Ending a Lease Early by Mutual Agreement

The easiest scenario for ending a lease early is when both the landlord and tenant want the lease to end. Just as with nearly every contract, parties are free to reach a mutual agreement for termination.

In such a case, the landlord and tenant should always put this in writing, and clearly state the date by which the tenancy is over. Landlords who are holding a tenant’s security deposit or a last month rent need to mindful that certain obligations arise when a tenancy is over, and ensure they comply with these applicable laws.

Ending a Lease Early by the Landlord and Tenant’s Conduct

It is a common misconception that only a written agreement can end a lease agreement. Rather, an agreement to reach a lease can occur “from the attendant circumstances and conduct of the parties.”

This means that, although no agreement was put in writing, the actions taken by the landlord and tenant can lead to a determination that the lease ended. For example, if the landlord accepts the apartment keys from the tenant, immediately assumes possession of the unit, and otherwise acts as if the lease had ended, there is a good argument to be made that it has . . . even without a written agreement.

This is important in a circumstance where a tenant wishes to end a lease, but the landlord does not. Here, the landlords needs to be extra careful about accepting the apartment keys or behaving in any way that could be considered as a finding that the lease ended.

One way a landlord can avoid this is by explicitly telling the tenant that he or she is not intending to end the lease.

When Only One Party Wants Out of the Lease

Under most leases, a landlord or tenant is not permitted to unilaterally end a lease. A few, limited exceptions exist, such as for tenants serving in the military or who are victims of domestic abuse. Otherwise, ending a lease early cannot be done alone by a landlord or tenant.

If a tenant does break a lease, a landlord (in the right circumstances) can pursue a claim for damages against the tenant. Before doing so, however, a landlord should consider speaking to an attorney.

Final Thoughts

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

3 Mistakes to Avoid When Preparing a Notice to Quit

Preparing a notice to quit is a requirement for nearly every Massachusetts eviction. This notice informs the tenant of the reason for the eviction and provides them a time period in which their tenancy is terminated.

A mistake in one of these notices, however, can be fatal to an eviction case, and lead to unnecessary delay.

Here, I’ll discuss three common mistakes made when preparing a notice to quit.

#1: Using the Improper Notice to Quit for The Tenancy

The proper notice to quit depends on the type of tenancy. Generally, a fourteen-day notice to quit is required for evictions based upon non-payment of rent, and a thirty-day notice is required for a no-fault eviction for a tenancy at will (commonly known as a month-to-month tenancy).

Landlords need to be careful that they are using the correct notice to quit for their eviction, as the wrong notice will likely lead to the eviction’s dismissal.

Landlords also need to be careful when using templates for these notices. Often, there are many free notices to quit on the Internet that are not intended for a Massachusetts eviction.

#2: Stating Inconsistent Reasons for the Eviction

A notice to quit must be consistent. Including inconsistent reasons for the eviction can also be grounds for dismissing the eviction case.

#3: Not Using a Sheriff or Constable to Serve the Notice

In an eviction, the landlord bears the burden of proving that the tenant received the notice to quit. Simply taping the notice to quit to the tenant’s apartment or mailing it to the tenant can be problematic, if the tenant denies receipt.

A much better option is to use a constable or sheriff to serve the notice. By law, such service creates a presumption that the tenant received the notice to quit. The tenant can try and argue otherwise, but will have a much harder argument to make if there is proof of service from a constable or sheriff.

Final Thoughts

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

Non-Payment of Rent During Coronavirus

Non-payment of rent is an important issue for landlords, especially during the coronavirus pandemic and eviction moratorium. Here, I’ll discuss what landlords should do regarding tenants who owe them rent.

Non-Payment of Rent: What Landlords Cannot Do During the Eviction Moratorium

With the exception of evictions for emergency matters, landlords cannot evict tenants. This includes the sending of notices to quit and the filing of eviction cases. Doing so can get landlords into trouble.

Non-payment of rent is not considered emergency grounds for evicting. If a landlord is not receiving rent from their tenant, unfortunately, not much can be done now to remedy the situation.

Non-Payment of Rent: What Landlords Can (And Should) Do During the Eviction Moratorium

While landlords cannot evict now for unpaid rent, landlords can (and should) notify their tenants about unpaid rent. Massachusetts has recently issued a regulation on this matter, and explains the reason for doing so:

In order to minimize the risk that a tenant will face eviction for an accumulated non-payment of rent once the Act expires, and to promote the prompt resolution of such situations without resorting to the court system, landlords should provide tenants of residential dwelling units a written notice of each missed rent payment.

This regulation, notably, states that landlords should do this. As such, it is a good practice for landlords to send these notices. This regulation includes language that should be included in these notices, including a disclaimer that the notice is not requiring the tenant to leave the apartment (very important).

Final Thoughts

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

Non-Renewal of Leases: FAQs

Non-renewal of leases is an important topic for any Massachusetts landlord who rents to a tenant with a lease agreement. This topic is especially important given the ongoing coronavirus pandemic and eviction moratorium.

What’s Required for a Non-Renewal of a Lease?

Landlords should always start with reviewing the lease itself. Many leases have requirements for both the landlord and tenant to inform each other whether or not they plan to renew the lease. This is particularly important for landlords with Section 8 tenants, whose lease agreements often have specific language about these scenarios.

Many leases are silent about non-renewals. In such a case, nothing is actually required for a landlord to not renew a lease. A landlord, in theory, can simply inform the tenant, the day after the end of the lease, that he or she does not wish to continue renting to the tenant.

This is rarely a good idea. A landlord, instead, should provide a tenant with as much notice as possible in advance, in writing, that it will not renew the lease.

Are Non-Renewals of Leases Allowed During the Eviction Moratorium?

In my opinion: yes. The eviction moratorium prohibits the sending of “any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”

This language clearly covers more than just the notice to quit that is required for most evictions. However, I do not read this to prohibit a landlord from simply informing a tenant that he or she does not intend to renew a lease.

Landlords, however, need to be extremely careful when pursuing non-renewal of leases, and not include any language that can be construed as a request or demand for the tenant to vacate.

Landlords should consider including language to make this point clear. The statement below is taken from a state regulation on the eviction moratorium and can be used in notices of non-renewal:

THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.

What Happens If A Tenant Will Not Leave After The End of The Lease?

The tenant becomes a tenant at sufferance. This is a tenant who was previously allowed to be in the rental apartment, but is no longer permitted by the landlord to do so. An eviction is required to get a tenant at sufferance out of the rental property.

However, the ongoing eviction moratorium prohibits all non-essential evictions. Unless the tenant at sufferance is damaging the apartment or threatening another person’s safety, an eviction is not allowed right now.

Can a Landlord Accept Rent from a Tenant Who Stays Past Their Lease?

Landlords need to be careful in these cases.

Suppose a landlord and tenant had a one-year lease, from June 1, 2019 to May 31, 2020, with rent due on the first of every month. If the landlord accepts rent from the tenant on June 1, 2020, the landlord and tenant have now entered into a new tenancy agreement: a tenancy at will (commonly known as a month-to-month tenancy). If the landlord wishes to evict, he or she would now need to send a thirty-day notice to quit before starting an eviction case.

How can a landlord avoid this? Before accepting rent after the lease, the landlord should tell the tenant, in writing, that the money is being accepted for use-and-occupancy only. This prevents the creation of a new tenancy.

Conclusion

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

Zoning for Landlords: What to Know

Zoning is an important topic for any property owner, especially landlords. Landlords should have a basic knowledge of zoning before offering property for rent, and know what to do if problems arise later on.

What is Zoning?

Zoning are local rules on the use of real property. Zoning often regulates the size, shape, and use of property in a town or city. These regulations are generally found in a town or city’s ordinances, which are usually available online.

Most towns and cities are divided into zoning districts, where only certain uses are permitted. It is common to have zoning districts for residential and commercial purposes. Towns and cities generally have a zoning map that indicates the zoning district for a particular property.

Failing to comply with a zoning regulation can have severe consequences. A town or city often has the power to issue a fine or stop-work order for a property in violation of the respective zoning ordinance.

Zoning for Landlords: Is My Property Allowed to be Rented?

For landlords, a critical issue to determine is whether the property they wish to rent is allowed for renting. Many zoning ordinances have specific requirements on where rental housing is allowed, and the minimum requirements for such rentals. This is often in addition to the state sanitary code, which applies to all residential housing in Massachusetts.

A landlord should never assume that property is suitable for renting simply because a prior owner did so in the past. It is not uncommon for zoning violations to continue for many years before finally being brought to enforcement by the town or city.

If a landlord’s property is not allowed for renting, a landlord may be able to request permission for doing so, through a variance, special permit, or some other zoning request.

Zoning for Landlords: Short-Term Rentals

Landlords need to be especially cautious about using property for short-term rentals. Short-term rentals are becoming increasingly regulated by Massachusetts towns and cities. Some municipalities require registration of these rentals, and others are banning them all together. Best for landlords to know such requirements before entering into such rentals.

Final Thoughts

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

Notices to Quit for Non-Payment of Rent: Proceed with “Care”

Notices to quit for non-payment of rent are required for initiating an eviction against a delinquent tenant. A landlord must generally provide a fourteen-day notice to quit for such an eviction.

However, the recent federal “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act) throws a wrinkle into this process. As such, landlords need to proceed with “care” with serving a notice for non-payment of rent (pun intended!).

Overview of Massachusetts Evictions During Coronavirus

Both federal and state law are presently prohibiting most residential evictions in Massachusetts. The CARES Act placed an initial moratorium on a large majority of eviction cases. The subsequent state eviction moratorium has stopped all non-essential evictions across the state.

When the moratorium ends, it is expected that evictions will resume (albeit under different circumstances and conditions). However, a requirement of the CARES Act will remain after the moratorium ends for notices to quit for non-payment of rent.

Notices to Quit for Non-Payment of Rent: Additional Time Required in Certain Cases

While notices to quit for non-payment of rent generally require fourteen days, the CARES Act now requires that such notices, when sent after the end of the moratorium, provide the tenant with thirty days notice.

This only applies to a specific category of properties, referred to as a “covered dwelling unit” under the CARES Act. These are generally properties that participate in a federal program or have a federally backed mortgage.

While this category applies to a wide array of tenant properties, the following landlords, in my opinion, are the most common ones who will fall under this law: those who participate in the Section 8 housing program, and those with a Fannie Mae or Freddie Mac mortgage.

For such rental properties, a thirty day notice (and not fourteen) will be required.

Practical Implications

When the courts reopen, there will be a flood of non-payment eviction cases. I’m predicting that many tenants will raise defenses related to whether the landlord served them with the proper notice to quit.

With this in mind, landlords need to be extra careful when preparing a notice to quit. If there is any chance that their rental property is covered under the CARES Act, the landlord should go with a thirty-day notice for non-payment of rent evictions.

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

Tenants With Criminal Backgrounds

Tenants with criminal backgrounds is a topic that landlords need to be careful about when selecting potential tenants. A guidance from the Department of Housing and Urban Development (“HUD”) suggests that a landlord’s decision to outright deny renting to any potential tenant with a criminal background can constitute housing discrimination.

What is Housing Discrimination?

Housing discrimination is when a landlord refuses to rent to a tenant based upon a protected classification. Housing discrimination comes from both federal and state law. State law, which is broader than the federal housing discrimination laws, prevents discrimination on the basis of:

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Familial Status (i.e. children)
  • Disability
  • Source of Income (e.g. a Section 8 voucher)
  • Sexual Orientation
  • Gender Identity
  • Age
  • Marital Status
  • Veteran or Active Military Status
  • Genetic Information

There are some exemptions to these laws, but they are narrow in scope. The best practice for Massachusetts landlords is to assume that housing discrimination laws apply to all of their rental properties, and proceed with extreme care and caution when selecting tenants.

Potential Tenants With Criminal Backgrounds: What To Do

Tenants with criminal backgrounds are not a protected class from discrimination. However, a HUD guidance advises that a landlord’s blanket refusal to rent to tenants with criminal backgrounds may be discriminatory.

Why? As explained in the guidance:

Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability).

Importantly, a landlord can commit racial discrimination even if they had no intention of doing so, if their actions (while neutral in nature) have the result of discriminating against a protected class over others (known as disparate impact).

With this in mind, landlords need to be careful when dealing with tenants with criminal backgrounds. A landlord should never outright refuse to rent to a tenant simply because the tenant has a criminal arrest or conviction. Rather, the landlord needs to make such decisions on a case-by-case basis, and decide if there is a real justification for denying a tenant solely from a criminal past.

As with all matters regarding landlord-tenant law, landlords should keep detailed, written records of all potential tenants, in case an issue ever arises.

Final Thoughts

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

Eviction Moratorium in Massachusetts: FAQs

UPDATE: The eviction and foreclosure moratorium has been extended through October 2020.

As expected, Governor Baker signed into law “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.” This law puts the brakes on all current and future evictions for the time being.

Who’s Covered by the Eviction Moratorium?

The eviction moratorium applies to all residential landlords and tenants, and commercial “small business premises unit” tenants, who fit a narrow definition for a small business.

What’s Covered Under the Eviction Moratorium?

Landlords are not permitted to serve notices to quit, file eviction cases, or seek a default judgement against tenants. The moratorium also bans nearly all other possible action that could occur in an on-going eviction proceeding.

How Does This Affect Current Eviction Cases?

The eviction moratorium suspends any deadlines involved with a pending eviction case. In cases where the landlord has already obtained an execution for possession, the bill prevents landlords from being able to use it (known as “levying an execution”).

How Long Will This Last?

120 days after the passage of the bill or 45 days after the COVID-19 emergency declaration has been lifted . . . whichever is sooner. The Governor also has the power to extend this moratorium.

In essence, this means that, most likely, no evictions will be proceeding until July 2020, at the absolute earliest.

What Are the Exceptions to the Eviction Moratorium?

Evictions are allowed for cases concerning:

(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or

(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public

There are also several exceptions for certain commercial evictions.

My take is that a landlord will need a strong, documented case against a tenant to even try one of these limited exceptions. Few judges are going to readily allow an eviction with the coronavirus ongoing.

Are There Any Protections for Landlords During the Eviction Moratorium?

The law allows landlords to use a last month rental deposit for “expenses”, such as mortgage payments and repairs. From my reading of the law, a landlord cannot use a last month rental deposit for unpaid rent alone.

If the landlord uses this deposit, the landlord must notify the tenant, inform the tenant that the deposit will still be applied for rent at the last month of the tenancy, and that the landlord must still pay the tenant interest on this deposit.

This is not allowed for a security deposit.

Must Tenants Continue Paying Rent During the Eviction Moratorium?

Yes. However, given this moratorium, a landlord will have limited means of doing anything about non-payment of rent for quite some time.

For landlords, be extremely careful when dealing with non-paying tenants. Any conduct that could be considered a “self-help” eviction is not worth the risk.

Final Thoughts

With the courts (and the rest of Massachusetts) closed, evictions aren’t happening anyway. This moratorium will continue this status quo for months ahead, and push most evictions into Summer/Fall 2020.

As I’ve written before, there will be an enormous backlog of cases when the courts reopen, from both existing cases and the inevitable future cases that will arise over the next few months.

If you need assistance with a landlord-tenant matter, feel free to contact me.

Three Success Stories as a Landlord Lawyer

As a landlord lawyer, I’ve had the pleasure of representing numerous Massachusetts landlords with their disputes against tenants. As an attorney who has represented landlords and tenants, I have experience with both sides of these legal disputes.

Here, I want to discuss three success stories that I’ve had as a landlord lawyer.

Working Out a Repayment Plan for Unpaid Rent

One of the best ways to succeed in a landlord-tenant dispute is to keep the matter out of court in the first place.

My client owned a condominium in the Greater Boston area, and was owed a large amount of rent from his tenants. The client hired me to start an eviction against the tenant.

Prior to starting the eviction, however, I reached out to the tenants to discuss a repayment plan. I was able to reach an agreement with the tenants to avoid a court proceeding and get my client repaid his money.

What’s the lesson of this? Keeping matters out of court is almost always the best outcome for landlords and tenants. In this case, my client recovered his rent and the tenants avoided an eviction.

Initiating An Eviction for A Tenant Who Doesn’t Plan To Leave An Apartment At the End of a Lease

When a lease is over, a tenant is suppose to leave the rental property (if the landlord doesn’t want them to stay). If the tenant remains, the landlord needs to evict.

Massachusetts law, however, has a lesser known provision that allows a landlord to start an eviction case before the end of the lease, if it is clear that the tenant has no plans to leave.

I represented a landlord whose tenant had no plans to leave at the end of the lease. Rather than wait until this happened, I took advantage of this law and filed the eviction right away. Doing so saved my client time, and got the matter to court (and to a resolution) as quickly as possible. Given that the eviction process in Massachusetts can be lengthy, starting as soon as possible is to the landlord’s benefit.

Protecting a Landlord’s Property From a Disruptive Tenant

In my practice as a landlord lawyer, I sometimes come across landlord-tenant disputes that are about more than just unpaid rent.

In this case, I represented a landlord who needed possession of his apartment. Prior to the start of the eviction, we learned that the tenants were damaging the property.

My response was to request a temporary restraining order (“TRO”). This court order, which is a form of injunctive relief, asks the court for an immediate order preventing a party from doing something. This is allowed for a case of irreparable harm, where the damage cannot be fixed simply by payment of money at the end of the case.

In this case, the court granted my TRO. Doing so helped bring the case to a prompt resolution.

Conclusion

My work as a landlord lawyer is rewarding, and I like nothing better than getting a great result for my clients. If you need help with a landlord-tenant matter, contact me for a consultation.

Serving a Notice to Quit

Massachusetts’s Supreme Judicial Court issued an important decision last week on landlord-tenant law. The full decision, Youghal, LLC v. Entwistle, is included below.

Like many appeals, the decision touches upon many different legal issues, not all of which are relevant for Massachusetts landlords. Here, I want to focus on a topic that is critically important for landlord-tenant law: properly serving a notice to quit. I’ll also discuss the requirements for appealing a landlord-tenant case (this latter topic constituted the bulk of the decision, but is more relevant to lawyers than landlords).

Overview

Youghal was an eviction case brought by a landlord against a tenant for non-payment of rent. This eviction, like nearly every Massachusetts eviction, required the landlord to provide the tenant with a notice to quit prior to filing the eviction case.

A notice to quit provides the tenant with the reason and date that the landlord is terminating the tenancy. Such a notice is a mandatory requirement for evictions, and as demonstrated in this case, can be fatal if not done correctly. For non-payment of rent, a landlord generally has to give a tenant a fourteen (14) day notice to quit.

Serving a Notice to Quit

One of the defenses that the tenants raised in this case is that the landlord filed the eviction case too soon, before the end of the fourteen day notice period. Here, it appears that the landlord posted the notice to quit on the tenant’s door. The tenant was not present when this occurred, and only learned about it the following day.

The landlord argued that the fourteen-day period was based on the day that the landlord posted the notice. The Court disagreed, ruling that this period started when the tenant had actual notice of the notice to quit. Simply posting the notice on the door was not enough to start this fourteen-day period.

Practical Implications

How could this have been avoided? The landlord in this case should have a used a constable or sheriff to serve the notice to quit.

By law, a constable’s return of service is prima facie evidence that the tenant was served. A tenant can still try and argue that they never received the notice to quit, but must overcome a presumption that service was properly made.

While it is not entirely apparent from this decision, it appears that the landlord in this case never used a sheriff or constable to serve the notice to quit, and instead, did it on their own. Such an approach is risky because, as seen in Youghal, if the landlord does not actually hand the notice to the tenant, it can be an open question as to when the tenant received notice.

To be clear, it is possible that the same defense could have occurred even if a sheriff or constable was involved. In my experience, however, serving a notice to quit through a constable or sheriff makes such problems much less likely to occur.

Appealing a Landlord-Tenant Decision

Youghal also concerned the process of appealing a landlord-tenant decision. Such appeals come with an incredibly tight deadline: ten days after final judgment. The issue in Youghal concerned a scenario where this deadline is extended by the filing of a motion for reconsideration.

Attorney Joseph Schneiderman, who prepared a brief for the benefit of the tenants in this case, told me that “[t]hese provisions of the civil and appellate rules often create counterintuitive tangles that confound practitioners and litigants alike, especially in summary process cases. This decision positively detangles this issue by allowing a party to toll the appeal clock by moving for a new trial or to alter or amend.a judgment before judgment formally enters.”

What’s the take home lesson for landlords? Be extremely careful when filing a landlord-tenant appeal.

Conclusion

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

Youghal-LLC-v.-Entwistle