Abandoned Tenant Property

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A common problem for landlords is abandoned tenant property.  When a tenant leaves an apartment, what should the landlord do about any property left behind?

If the landlord is certain that the tenant has completely moved out of the apartment, the problem is easy to solve.  A landlord should first contact the tenant and see if they want the property.  If the landlord can’t get an answer from the tenant, the landlord should store the property for as long as they can.  I recommend that landlords wait a minimum of sixty days before discarding any left behind possessions.  Landlords should take pictures of abandoned tenant property and contact the tenant in writing.

If it isn’t clear whether the tenant has moved out of the apartment, discarding abandoned tenant property becomes tricky.  Landlords need to avoid the worst possible mistake a landlord can make: self-help (where a landlord attempts to evict a tenant outside of the law).  In other words, landlords need to be sure that the tenant has left the apartment before discarding abandoned tenant property.  Common sense is the best test for this: if the tenant hasn’t been back to the property in months, has taken most of their items with them, and has made no contact with the landlord, it is likely the tenant has left the  apartment for good.

However, if the landlord has any doubt about this, the landlord should proceed with caution.  The safest approach is an eviction proceeding against the tenant.  In most cases, the tenant will never show up to court, allowing the landlord to get a default judgment (an automatic win).  An eviction isn’t a quick process; even if uncontested, an eviction will likely take up to two months.  However, if it is possible for a tenant to ever claim that they never left the apartment, this extra time may be well worth it for the landlord.

If you are a landlord with a case of  abandoned tenant property, contact me for a consultation.

Raises in Rent

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Raising rent is always a contentious issue among Massachusetts landlords and tenants.  I often get asked, are raises in rent allowed?  The answer depends upon the rental agreement between the parties: whether there is a lease or tenancy-at-will.

A lease is where the landlord and tenant contract for the rental of property, most often in one year terms.  With a lease, the rent is fixed, and unless the lease says otherwise, raises in rent are not allowed.  Some leases have provisions that apply to raises in rent if the lease continues beyond its original terms, so landlords and tenants should read these agreements carefully.

A tenancy-at-will is an ongoing, indefinite rental agreement, which either party can break at any time (with proper notice to the other side).  Here, raises in rent are allowed: the landlord must provide the tenant with at least thirty days notice (and more if the rental period is longer than the standard month that these types of rental agreements usually go for).

For subsidized housing (such as the federal government’s Section 8 program), special rules often apply for raises in rent.  Landlords and tenants should carefully check on the terms of these leases and applicable laws and regulations.

Raises in rent are not allowed as a form of “retaliation” against a tenant for reporting bad conditions about the property.  Landlords who raise rent solely for this purpose face stiff legal penalties.  The same is true if the raise in rent is due to discrimination based on a protected class, such as race or ethnicity.

To avoid potential problems down the road, landlords who want to raise rent should reach out to their tenants in advance and discuss the need for these increases.

FAQ: Does a Landlord Have a Right to Inspect a Tenant’s Apartment?

Question:  Does a landlord have a right to inspect a tenant’s apartment?

Answer:  Yes.  A landlord has the right to enter an apartment for the purpose of an inspection.  No specific notice for such an inspection is required, but a landlord must give “reasonable notice.”  I recommend that landlords always provide at least one days notice before such an inspection.

A landlord almost certainty has the right to designate an agent to do this inspection in his or her place:  a landlord can likely ask a property management service, real estate broker, or attorney to perform an inspection for them.  A good argument could be made by a tenant that there are limits to this: a landlord probably could not allow any random person to enter the apartment on the landlord’s behalf.

Implicit with this right to inspect is a proper time and place for doing so: for example, a landlord who tries to do an inspection in the middle of the night (without a good reason for doing so) would likely be disfavored by the court.  Similarly, a landlord’s repeated request to inspect an apartment could be seen as harassment, and proper grounds for a tenant’s objection.

If you are a landlord or tenant in need of assistance with this matter, contact me for a consultation.

Practice Pointers: Hire a Landlord/Tenant Attorney With Experience on Both Sides

Last week, I settled a highly contentious landlord/tenant dispute.  Neither side like each other, and both seemed glad to have the matter over.  I represented the landlord, and was able to negotiate a move-out of the tenants in exchange for a release of liability and a “cash for keys” settlement.  In all, I’m pleased with the result: my clients got what they wanted at considerably less cost that a full trial would have required.

During the final inspection, the tenant thanked me for my help, and told me that she felt I moved the case along better than my clients’ prior attorney (who the tenant believed had been unreasonable).  I appreciated the tenant’s kind words.  In my opinion, the outcome of this successful case came, in large part, from my experience in representing both landlords and tenants: something I urge people to consider when selecting a landlord/tenant lawyer.

Why hire someone who represents both landlords and tenants?  A attorney with experience representing both types of these clients understands where each side is coming from.  In this case I settled, I knew what options the tenant had in pursuing their claims, and the time/expense this would require for my client, the landlord.  This helped me to propose and agree to a favorable settlement for my clients.  In my experience, I have seen attorneys make poor decisions from not understanding both parties in the case; mistakes that can be costly in the long run.

I often get asked: can you really represent both landlords and tenants?  The answer is: of course.  I’ve had clients of both type with strong claims/defenses who needed legal help.  I don’t believe in the stereotype of the “bad landlord” and the “innocent tenant”; I’ve seen parties of each type who were in need of assistance.

Looking for a landlord/tenant attorney with such experience? Contact me for a consultation.

Upcoming Massachusetts Appeal: Is a Violation of the Security Deposit Law a Defense Against Eviction?

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The Supreme Judicial Court will be hearing an appeal on a matter of great importance for Massachusetts landlord/tenant law: whether the failure to comply with the state’s security deposit law is a defense to an eviction (“summary process”).  The case is Meikle v. Nurse (SJC-11859).

A security deposit is a sum of money (not to exceed one month’s rent) that a landlord is allowed to collect from a tenant for any damages that might occur in the rental property.  Massachusetts has a incredibly detailed law about the procedures landlords must use to hold these deposits.  A landlord’s failure to comply with some of these requirements can result in huge damages for tenants.  For this reason, many landlord/tenant attorneys (myself included) recommend that landlords do not take security deposits:  the risks just aren’t worth it.

There is no dispute that a tenant can raise a violation of the security deposit law as a claim (and seek monetary damages), but Meikle will determine whether such a violation can keep a landlord from evicting a tenant.  The decision will require the Supreme Judicial Court to take a close look at the landlord/tenant laws.

Regardless of the Court’s decision, the security deposit law is a pro-tenant law that is an important source of leverage for tenants in negotiating eviction cases.  Consequently, it is also a source of trouble for many landlords.  Tenants and landords should consult an experienced attorney for help in navigating this tricky law.

Practice Pointers: Appealing a Massachusetts Eviction Case

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A party who receives an unfavorable decision in a Massachusetts eviction case has the option of appealing.  In an appeal, the party asks the appellate court to review the decisions made by the trial court and decide if they were done correctly.  An appellate court will not decide the case all over again, but instead will review the issues of law made by the trial judge.

There are many, many things to consider and discuss in deciding whether to appeal, but here’s the most important thing to remember: a party who wants to appeal must timely file a notice of appeal.  A notice of appeal is a simple form that tells the court and other side that you wish to appeal.  A party can obtain a notice of appeal form from the clerk’s office, who can also answer questions on how to fill it out.

Massachusetts eviction (“summary process”) law requires a party to file this notice of appeal within ten days of the court’s decision.  The failure to timely file this notice of appeal can be deadly for bringing an appeal:  Massachusetts courts have stated that the failure to file this notice of appeal within this ten-day deadline prevents a party from appealing (regardless of whether the party had a good reason for not timely filing this notice of appeal).

With that said, be sure to file a notice of appeal if you intend to appeal your case, or have any thought of doing so.  An appeal can always be dismissed, but the failure to bring a notice of appeal is an error that is often “unforgivable” by trial courts.

If you are considering appealing your eviction case, contact me for a consultation.  Appeals require an enormous amount of work and it is best to have an experienced attorney on your side.

Recommended Resource: Rental Crisis in the U.S.

I was recently forwarded the research graphic below detailing the current state of renting in the United States today.  There is no doubt that housing will continue to be a major domestic issue for our country for years to come and this graphic does a great job of detailing these concerns.

Anyone facing a rental issue should consider consulting a landlord/tenant attorney for a consultation.

Rental Crisis
Source: Affordable-Online-Colleges.net

My Letter to Mayor Curtatone of Somerville on the I-93 Protestors

 

Remember the I-93 protest that happened earlier this year?   I sure do.   I was on the way to court and, thanks to the protesters, came minutes away from missing my hearing.  Thousands of Massachusetts residents were impacted by this outrageous protest, including a man in an ambulance on the way to the hospital.  No one–myself especially–denies the right of others to express their views, but the middle of I-93 is not the place to do this.

That’s why I was shocked and outraged that Mayor Curtatone of Somerville recently advocated that the Middlesex County District Attorney not pursue charges against the protesters.  As a local business owner in Somerville and someone who provides legal services across Massachusetts, I don’t think  Mayor Curtatone really understands how protesting in the middle of I-93 hurts innocent people.  On the day of the protest, I was headed to Wrentham to assist a disabled, single mother facing foreclosure.  This “protest” didn’t raise awareness of any cause; it merely put lives at risk and prevented people like myself from helping others in need. Like a stereotypical politician, Mayor Curtatone is looking for a quick news headline at the expense of common sense and what is really best for his constituents in the long run.

Below is a copy of the letter I sent to Mayor Curtatone regarding his support for the I-93 protesters.  I encourage others who feel similarly to do the same.  And Somerville residents:  make your voices known at the next mayoral election.

Dear Mayor Curtatone:

I recently read your statement encouraging the Middlesex District Attorney to drop charges against the I-93 protestors.  I am a Somerville attorney who has practiced in this area for the last two years.  I wanted to share a story with you about my experience in dealing with the I-93 protestors last year.

On the day of the protest, I was traveling to Wrentham for a court appearance.  I was not headed to represent a major corporation or a rich client that morning; I was traveling to assist a disabled, single mother facing a foreclosure.  Thanks to the protestors, I came minutes from missing the hearing and not being able to assist my client.  I consider myself one of the “lucky” people stuck in traffic that day; I was not the injured man in an ambulance who the protestors delayed getting to the hospital.

With that said, I find your statement in support of the protestors to be deeply insulting.  People have every right to express their political views, but not in a way that disrupts the lives, safety, and welfare of others.  That’s why I am sending you this letter, in lieu of standing in front of your car and preventing you from getting to work.

Your quotation of Dr. Martin Luther King Jr. is similarly disingenuous.  Dr. King advocated peaceful public discourse; he would have never approved a protest that put the public’s safety at risk.  I suggest you take a cue from Calvin Coolidge’s tenure as Governor of Massachusetts when, during the 1919 Boston police strike, stated “there is no right to strike against the public safety by anyone, anywhere, any time.”  Coolidge rejected what might have been popular for what was right:  a lesson you should considering following.

Sincerely,

Adam T. Sherwin, Esq.