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.

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Payment Plans With Tenants: What to Know


With the ongoing coronavirus pandemic, many landlords are having an especially difficult time collecting rent from tenants. As the courts will be closed for the near future, landlords are best off trying to work out disputes with tenants on their own. Payment plans with tenants are a great option for attempting to resolve non-payment of rent.

Put Everything in Writing

Oral agreements are always problematic, particularly with any matter concerning real estate. With this in mind, repayment plans with tenants should always be in writing, and include the relevant details about the agreement. In particular, these agreements should state the total amount of owed rent, and when payments are to be made. Aim to be as specific as possible.

Reference The Original Tenancy Agreement And Your Intention to Preserve It

Payment plans with tenants should similarly reference the original tenancy agreement, and your intention to preserve it. Landlords need to be careful about entering into an agreement that could be considered a new tenancy agreement. Be clear that the payment plan is just that: an agreement for the tenant to repay the owed rent and preserve the existing tenancy, and not a new lease or tenancy agreement.

Encourage Tenants To Seek Rental Assistance

Given the enormous economic impacts of coronavirus, there are new resources available for tenants who cannot afford rent. Massachusetts’s Residential Assistance for Families in Transition (RAFT) program, for example, provides short-term assistance for tenants facing eviction. Massachusetts has recently increased funding for RAFT and similar tenant protection programs, and I won’t be surprised if additional aid is approved later on.

Landlords should absolutely encourage tenants to apply for such programs during this crisis. Such efforts can help landlords get their rent and avoid an eviction case after the pandemic passes.

Landlords, however, need to carefully review any paperwork for RAFT and other tenant protection programs. Some of these programs impose obligations on landlords, and landlords need to be certain that they can and will comply with any such requirements.

Conclusion

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

Evictions During Coronavirus

Evictions during coronavirus is a topic many Massachusetts landlords have been asking about in recent weeks. As the pandemic continues, this is a matter that will continue to be of importance to both landlords and tenants.

This state of affairs, of course, remains uncertain, but here are my thoughts about addressing a present tenant dispute.

No Eviction Hearings Until the End of April, At the Earliest

Housing Court is not scheduling eviction cases until the end of April (which may get pushed back). In essence, this means that there will be no evictions during coronavirus.

A landlord is permitted to request a court hearing before then, if they have good cause. “Good cause”, however, is likely to be a high burden to meet for most Massachusetts landlords. With the exception of a real emergency, I doubt any judge will permit an eviction to go forward during coronavirus.

Landlords who own homes with a mortgage backed by Housing and Urban Development (“HUD”), Fannie Mae, and Freddie Mac need to proceed with extra caution, as the federal government has temporarily suspended evictions for these types of properties.

Proceed with Caution for Notices to Quit

I’m not aware of any formal restrictions on serving a notice to quit while the pandemic is ongoing. While eviction cases will not be heard anytime soon, a notice to quit (which is a required precursor to most Massachusetts evictions) can still be served.

However, simply because a landlord can serve a notice to quit doesn’t mean it is the best idea right now. Given the ongoing crisis, it may be best to wait a while longer before taking such action.

Attempt to Work Out a Resolution On Your Own

What’s the best thing that landlords can do now, with no evictions during coronavirus ? Try to work out disputes with tenants on their own. If a tenant is behind on rent, try and see if you can work out a repayment plan. Such repayment plans should always be in writing and signed by both parties.

If a landlord is holding a security deposit from a tenant, a landlord may be tempted to use this money towards any owed rent. Landlords, however, need to use extreme caution when dealing with a security deposit, as even a minor violation of this law can result in steep penalties.

Conclusion

The coronavirus pandemic will end eventually, and landlords will be permitted to resume evictions again. Until then, Massachusetts landlords need to proceed with caution in any disputes involving tenants before then.

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

Emotional Support Animals: What Landlords Need to Know

Emotional Support Animals: What Landlords Need to Know

This Friday, I’ll be doing a webinar on emotional support animals for MassLandlords. This webinar will cover what landlords need to know about emotional support animals, including how to address request from tenants for these animals and ways to avoid liability.

Emotional support animals (“ESAs”) are increasingly becoming common; one report states that registered emotional support animals have increased 1,000% between 2002 and 2012.

This webinar will discuss:

  • The difference between service animals and emotional support animals
  • Common circumstances when issues with ESAs may arise
  • What a landlord should be do when considering a tenant’s request for such an animal
  • What landlords can and can’t do with ESAs
  • Best practices for avoiding liability

The dog above is not a ESA; he’s my dog, Barley. However, the harness we use to walk him sometimes gets him confused as a support animal. This is a great example of why landlords need to be diligent about properly considering ESA requests from tenants.

In my practice as a landlord-tenant attorney, I’m increasingly seeing more cases involving ESAs. The U.S. Department of Housing and Urban Development recently issued a guidance on this topic and noted the rise of discrimination claims on these matters:

As of the date of the issuance of this guidance, [Federal Housing Administration] complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all [Federal Housing Administration] complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are one of the most common types of fair housing complaints that [Housing and Urban Development] receives. In addition, most [Housing and Urban Development] charges of discrimination against a housing provider following a full investigation involve the denial of a reasonable accommodation to a person who has a physical or mental disability that the housing provider cannot readily observe.

For these reasons, this is an important topic for landlord-tenant law, and I hope you can join the webinar.

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

Landlords and Coronavirus

Coronavirus has become a worldwide pandemic, and its effects are being felt here in Massachusetts. If you are like me, your work and personal life have been heavily interrupted by this crisis, which unfortunately, will likely stay this way for a while longer.

Here, I want to share some advice for Massachusetts landlords dealing with coronavirus. Since this outbreak is new, and we are dealing with uncharted territory, this post is subject to change.

Evictions During the Coronavirus Epidemic

Last weekend, Housing Court announced that all evictions are to be postponed until April 21, 2020 or later. While the court is allowing cases to be heard earlier upon a showing of good cause, my bet is that most landlords will unlikely be able to meet this high bar.

This means, in effect, that no evictions will go forward for the next month. For small landlords with non-paying tenants, this will especially be a burden.

This also means that Housing Court will be swamped with cases in Spring/Summer 2020. On a normal week, each Housing Court gets dozens (if not hundreds) of new eviction cases. This one-month postponement will result in a huge backlog of eviction cases for months to come.

Care and Maintenance of Residential Apartments

It is a good idea for Massachusetts landlords to remind their tenants of the importance of preventing coronavirus, namely, through cleaning and disinfection. While it is a safe bet that nearly everyone knows about this pandemic, Massachusetts landlords can avoid potential liability by being on record about notifying their tenants with these precautions.

Housing Discrimination Laws

One potential area of liability that I see arising during coronavirus is housing discrimination. State law (and federal) strictly prohibit housing discrimination on the basis of race and national origin. The ongoing epidemic is perpetrating some horrendous racial stereotypes.

Statements like these are not only untrue, but also potential grounds for discrimination. Even an innocent question such as, “Where are you from?”, can subject a landlord to liability. For these reasons, now more than ever, landlords need to be careful about complying with housing discrimination laws when dealing with existing and potential tenants.

Conclusion

I want to express my deep gratitude for the many health care and public service employees who are working to help combat this epidemic. For information on the latest about coronavirus, visit Massachusetts’s official website.

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

Trusts in Massachusetts Courts: Do You Need a Lawyer?

The Massachusetts Appeals Court last month issued an important decision about trusts in Massachusetts courts, on whether a lawyer is needed to represent such entities. The full decision, Braxton v. City of Boston, is included below.

Although I am writing this as a blog post about landlord-tenant law, this issue regarding trusts in Massachusetts courts is equally relevant to other areas of law, especially real estate matters.

What is a Trust?

A trust is a property interest held by one person for the benefit of others. Trusts have become a common means of passing property to others without having to do a formal probate proceeding. A trust is generally run by a trustee, who runs it for the beneficiaries.

Trusts are a common means of holding real estate. When placed into a trust, the trust becomes the owner of the property.

Trusts, importantly, can sue, and be sued in Massachusetts courts.

Trusts in Massachusetts Courts: Get a Lawyer!

Braxton concerned a simple question: does a trust need to be represented by a lawyer in court?

Prior cases make it clear that a corporation or limited liability company (“LLC”) need an an attorney for a court proceeding (except small claims). The rationale is that an organized business is a separate legal entity, and not the same as the individuals who own it. Braxton, to the best of my knowledge, is the first case to address whether this rule also applies to a trust.

In Braxton, the Appeals Court ruled that trusts, like businesses, must also be represented by a lawyer in court. This ruling makes sense: a trust, like a business, is a separate legal entity, and it makes little sense to require a business to have an attorney represent it in court, but not a trust.

Limited Exception: Filing a Notice of Appeal

Braxton recognizes a limited exception to this rule: the filing of a notice of appeal. An appeal is a court case that reviews a lower court decision. To do an appeal, one must file a notice of appeal by a fixed deadline after a final decision in a case is reached. For civil matters, this deadline is generally thirty days. (eviction appeals are ten days, and zoning appeals are twenty days).

A notice of appeal must be filed by this deadline; if it is not, the appeal can get dismissed. In Braxton, a trust wished to appeal a court decision, but no longer had a lawyer representing it. Rather than miss the appeal deadline, it went ahead and filed a notice of appeal without an attorney. The question for the Appeals Court was whether this was an adequate notice of appeal.

The Court ruled that in such a scenario, where a trust no longer had an attorney, it was proper for a trustee to file the notice of appeal on its own, with the caveat that the trust needs to find a lawyer ASAP. This ruling applies to business entities as well: a corporate officer can also file a notice of appeal for a corporation or LLC if it does not have a lawyer.

The rationale of this rule, in my opinion, is the need to meet appeal deadlines. It would be unfair to deprive a trust or business with the right to appeal solely because it does not have an attorney by the deadline date.

Practical Implications

A trust, like a business entity, needs a lawyer for court proceedings. Although Braxton recognizes an exception to this rule, this exception appears to be a narrow, limited one. Recent cases show that Massachusetts courts are not tolerant of non-lawyers practicing law. The consequences for doing so can be severe.

Conclusion

If you need legal representation for an eviction, contact me for a consultation.

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Commercial Evictions in Massachusetts: 5 Things to Know

Commercial evictions in Massachusetts concern property that is not used for human habitation, such as a store or office space. Similar to residential property, an owner of commercial property must bring a formal court action (known as “summary process”) for obtaining possession from a tenant.

This is where the similarities between commercial and residential evictions end. Read on for important information that one should know about commercial evictions in Massachusetts.

No Right to Housing Court for a Commercial Eviction Case

Housing Court is a popular forum for resolving residential property disputes in Massachusetts. A residential landlord is permitted to file an eviction in Housing Court, and if an eviction is filed in another court, either party (tenant or landlord) has the right to transfer it to Housing Court.

Housing Court, however, does not have jurisdiction over commercial evictions in Massachusetts. These cases must be brought in District Court or Superior Court.

Commercial Property Is Often Rented “As Is”, Which Limits the Available Defenses in a Commercial Eviction Case

Residential property comes with an implied warranty of habitability. A landlord can only rent property that is fit for human habitation: a responsibility that cannot be waived. Residential property must also comply with the state sanitary code.

Commercial property, in contrast can (and most often does) get rented “as is.” In such a case, the tenant is generally responsible for the care and maintenance of the property. As such, problems arising from conditions in the rental property are limited as defenses to commercial evictions in Massachusetts.

Commercial Leases Often Require the Waiver of a Jury Demand

Tenants in residential evictions have the right to a jury trial. Most commercial evictions require tenants to waive their right to a jury trial if an eviction case ever becomes necessary. As a result, commercial evictions typically move at a much faster pace than residential cases.

Counterclaims Are Not Allowed in Commercial Evictions

Counterclaims are not allowed in commercial evictions. As such, a tenant defending a commercial eviction is much more limited in the potential defenses they can raise in such a proceeding.

Commercial tenants, however, are free to file a separate lawsuit against a landlord and ask that it be consolidated with the eviction.

Massachusetts’s Security Deposit Law Does Not Apply to Commercial Tenancies

As I’ve written, Massachusetts’s security deposit law is a trap for unwary residential landlords, and can result in steep penalties if violated. This law, however, does not apply to commercial tenancies. A commercial landlord can accept a security deposit without having to comply with the numerous requirements of the residential security deposit law.

Massachusetts’s security deposit law often comes up in residential evictions, and is a problem if the landlord has not followed this law. For commercial evictions, however, this law does not apply.

That’s not to say that a commercial landlord can do whatever they want with a security deposit. Chapter 93A, which prohibits unfair and deceptive business practices, can apply if a commercial landlord acts unreasonably with a security deposit.

Conclusion

If you need assistance with commercial evictions in Massachusetts, contact me for a consultation.