What is Housing Court in Massachusetts?

Massachusetts has a unique forum for resolving matters involving residential housing: Housing Court.  Understanding what is housing court is essential for landlords, tenants, and former homeowners facing an eviction after foreclosure, as Housing Court is a popular forum for resolving these disputes.

Housing Court is a specialty court for matters involving residential housing.  Evictions makeup the bulk of the cases filed in these courts, but Housing Court can also hear civil lawsuits, criminal cases, and small claim matters (if they concern housing).  A party may file their case directly in Housing Court.  Alternatively,  a party may transfer their case into Housing Court so long as this is done the day before trial.  A transfer to housing court is a simple matter that only requires a party to file a notice of transfer in the court where the case was originally filed, and the appropriate Housing Court.  This is commonly done for eviction cases filed in District Court, where the tenant wishes the matter to be heard in the appropriate Housing Court.

Housing Court isn’t available everywhere in Massachusetts.  Massachusetts has five Housing Court divisions (Boston Housing Court, Northeast Housing Court, Worcester Housing Court, and Western Housing Court) which cover most of the state.  However, there is a large portion of Massachusetts that is not in a geographical jurisdiction of a Housing Court, including many cities in the Greater Boston region (including Somerville, Medford, Revere, and Chelsea).  With the exception of Boston Housing Court, Housing Court divisions sit in multiple locations within its geographical jurisdiction.  Northeast Housing Court, for example, hears cases in courtrooms in Salem, Lynn, Lowell, and Lawrence.  Visit the Housing Court’s website to find out if there is a Housing Court for your dispute.

Housing Court has some important features that make it a good option for resolving housing disputes.  Housing Court has trained mediators in each of their courts who can attempt to help resolve disputes in lieu of trial.  Mediation is particularly useful for evictions, as the majority of these cases are settled and do not go to trial.  District Courts (where evictions are also commonly brought) sometimes have similar mediation services, but these are not always as readily available as the services offered in Housing Court.

Another benefit of Housing Court is having experienced judges who know and understand housing law.  Housing law is complex, and it is not uncommon to find judges who aren’t familiar with many of the issues that come up in housing cases.  This doesn’t happen in Housing Court: the judges have hear the issues in these cases many times before.

Housing Courts are thought by some to be “tenant friendly”, with a preference towards tenants over landlords (and former homeowners over banks).  I personally believe this perception comes from the fact that Massachusetts’s housing laws are consumer orientated and lean in favor of tenants’ rights.  From my experience in every single one of the Housing Courts in Massachusetts, I believe a party can get a fair decision on their matter.  I do believe, however, that the decision on where to bring a case is an essential decision, and one that an experienced attorney should decide.  Although understanding what is Housing Court and the work it does is important for making the best decision for you, this is no replacement for having a trusted attorney by your side.  If you have a case in Housing Court, contact me for a consultation.

Fee for a Tenant Attorney

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Many tenants in need of legal assistance, as well as landlords involved in legal cases with tenants, often ask about the fee for a tenant attorney.  Most people are familiar with the general model for hiring an attorney: the attorney takes an upfront amount of money and bills the client for their time.  The other common type of billing is a contingency fee, where the attorney takes a fixed percentage of the amount recovered from the case.  In Massachusetts, another type of payment for legal services is also available to tenants: fee shifting.

Fee shifting is a provision in a law that requires the losing party to pay the other side’s legal fees.  Generally, under the American Rule for legal fees, each side bears their own legals fees in a legal matter.  If you spend $10,000 in legal fees to recover a judgment of $5,000, you only get $5,000 in the end (and will have lost the remaining amount spent on the case).  A fee shifting requirement in a law allows the prevailing party to recover these attorney fees if their case is successful.  Many landlord/tenant laws contain such a provision, where the tenant is awarded reasonable legal fees if the claim is successful.  Importantly, many of these laws do not require the tenant to have accrued the legal fee.  In other words, there is no requirement that the tenant had actually spent money towards paying the attorney: the fee for a tenant attorney is still permitted if the underlining claim is successful.

Fee shifting provides a powerful incentive for tenants to pursue claims against landlords.  Without fee shifting, tenants and lawyers have little incentive to consider taking on claims against landlords.  The damages that could be recovered from one of these claims may be too small to make it worth the trouble.  With fee shifting, however, the fee for a tenant attorney becomes part of the case, and can be recovered through settlement or a judgment from the court.

With this in mind, both tenants and landlords should keep in mind the potential fee for a tenant attorney in evaluating a potential landlord/tenant claim.  The potential for damages in one of these cases is an important factor for both sides in attempting to resolve one of these matters.

Notice of Eviction

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A notice of eviction in Massachusetts can mean one of two things.

To start an eviction, a landlord is required to send a tenant a notice to quit.  The notice to quit informs the tenant that the tenant’s tenancy is over, and that the tenant must leave the apartment by a definite date.  The required number of days that must be given in one of these notices depends on the reason for terminating a tenancy.   A case for non-payment of rent generally requires a fourteen day notice to quit; a no-fault eviction usually requires thirty days.  After the tenant is provided this notice, and the time in the notice has elapsed, the landlord can then file the eviction case.

After serving the notice to quit, the landlord begins an eviction case through the service of an eviction summons, which lists the reason for the eviction, the court where the case is being brought, and the deadline that the tenant has to respond to the eviction.  This is the final notice of eviction for the tenant; the tenant must then answer the eviction complaint and state any reasons why they do not believe they should be evicted.  Failing to answer an eviction summons has serious consequences: a landlord can request a default judgment against a tenant, which is an automatic “win” for the landlord.

A landlord sending a notice of eviction, and a tenant receiving one of these notices, should check the document to ensure that it is accurate and contains all of the required information.  The smallest defect in one of these notices may lead to the notice, and subsequent eviction, as being invalid (a reason why both landlords and tenants should consider consulting with an experienced attorney on one of these matters).

A tenant who receives either type of notice needs to act quickly in dealing with it.  Both notices make it clear that an eviction is imminent, and a tenant needs to plan accordingly in responding to one of these cases.

If you are a tenant facing a notice of eviction, or a landlord who needs to perform an eviction, contact me for a consultation.

Somerville Eviction Cases

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While I take cases all over Massachusetts, I have many landlord and tenant clients in Somerville . . . not surprising because my office is located in Assembly Square and I proudly call Somerville my “business” home.  Somerville is a fantastic city and I’m proud to be a lawyer in this great community.  In this post, I’ll provide an overview of Somerville eviction cases.

Evictions in Somerville, with a few exceptions, must be brought in Somerville District Court.  Somerville, like many cities outside of Boston, are not within the jurisdiction of a housing court, making District Court the main venue for these cases.  Somerville District Court has jurisdiction over eviction cases not just in Somerville, but Medford as well.  Somerville District Court is located in Assembly Square and is within walking distance of the T.  Parking is generally available near the court as well, but plan ahead to give yourself enough time to find a spot.

Somerville eviction cases, like most eviction cases across Massachusetts, are held on Thursdays in Somerville District Court.  Court begins at 9:00AM, with a “first calling” of the cases before the court.  During this initial reading of the cases, the clerk asks if both parties are in court, and what the parties are in court for.  If the parties are in court for a bench trial (where the judge decides the matter, and not a jury), a trial can be held that day.  If the tenant has requested a jury trial, the court usually holds a pre-trial conference to select a trial date.

For both types of cases, mediation is usually an option for both parties.  Mediation allows parties to meet with a trained facilitator to discuss the issues in the cases and see if the matter can be worked out.  Parties should always try mediation (even if they have an attorney): there is nothing to lose, and much to gain if the parties can work out a resolution on their own.

Compared to other courts (especially housing court), Somerville District Court usually doesn’t have a huge caseload of eviction cases.  You should expect a bit of a waiting time in court, but cases are usually heard in the morning.  If your case needs to go to trial, the court may schedule it on a non-Thursday.

If you find yourself involved in a Somerville eviction case, contact me for a consultation.  Landlord/tenant law can be tricky, and it is helpful to have an experienced attorney on your side.

 

Who Pays for Legal Fees in an Eviction Case?

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A central question that anyone in a landlord/tenant case needs to consider is, who pays legal fees in an eviction case?  The answer to this question makes a huge difference in determining whether to pursue a potential claim against a landlord or tenant.

Massachusetts, like most of the country, follows the American Rule in awarding attorney fees in a lawsuit.  Unless there is a law explicitly allowing attorney fees, a prevailing party doesn’t get attorney fees in a lawsuit . . . even if the court determines they were on the “right” side of the law.

The American Rule most directly impacts landlords in eviction cases against tenants.  Landlords generally cannot recover attorney fees in an eviction case against a tenant.  A landlord who prevails in an eviction case is entitled to the “costs” of the case, but this is generally limited to the filing fee of the lawsuit, and not any attorney fees incurred in one of these cases.  Some leases provide for attorney fees if a landlord brings an eviction case in court, but this alone does not guarantee that a landlord will obtain these fees from the tenant: a landlord (like any party in a lawsuit) can only obtain a judgment from a party with assets.   If the tenant does not a steady income, property, or anything else of value, the landlord will have a judgment that they cannot recover.

The same isn’t true for tenants bringing claims against landlords.  Massachusetts has some of the most tenant friendly laws in the country, allowing for legal fees in an eviction case.  Violation of one of Massachusetts’s many landlord/tenant laws, such as the security deposit law, will not only subject a landlord to monetary damages, but require them to pay a “reasonable” attorney fee if the tenant prevails.  For a lengthy eviction case, these attorney fees can be huge.

With this in mind, both landlords and tenants should keep in mind who pays attorney fees in eviction cases when evaluating their options.  For landlords attempting to evict a tenant, strong consideration should be given to working out settlement agreements in lieu of litigating these cases.  The potential risks of fighting one of these cases can be costly (as unfair as this can  be).  For tenants who are dealing with an unfair landlord, Massachusetts’s landlord/attorney laws, which provide for attorney fees for a prevailing tenant, are a strong reason why tenants should speak with an experienced landlord/tenant attorney if they are dealing with a bad landlord.

If you find yourself in either scenario, contact me for a consultation.

Advice for Landlords

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In this blog post, I am going to give you the single, most important piece of advice for landlords in Massachusetts.  This advice might sound obvious, but believe me when I tell you that it is often ignored.  Ready for it?  Here it is: speak to a landlord/tenant attorney before becoming a Massachusetts landlord.  

I have met countless landlords who start renting homes and apartments without any knowledge of Massachusetts landlord/tenant laws.  Often, these landlords end up being okay in the beginning, when things go well with their tenants.  When things go bad, however, they can get really bad: not following Massachusetts’s extensive landlord/tenant laws can have dire consequences for landlords down the line.

Nearly all of these problems can be avoided by following the law correctly in the first place.  A Massachusetts landlord/tenant lawyer can help you draft a lease, decide on the proper terms of your tenancy, and avoid many of the pitfalls that inexperienced landlords in Massachusetts often make.  Few, if any of us, would start a business without learning the applicable law.  Why should being a landlord be any different?

This advice for landlords stresses an important point: you don’t need to hire a lawyer only when things go wrong.  A landlord/tenant attorney can be a great help to you in becoming a landlord, and help you avoid major problems from not following the law.

Bring E-Filing to Massachusetts!

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My blog post today isn’t directly on point with the legal topics I generally blog about, but I think it’s a post that has important relevance to the work I do and clients I serve.   Let me tell you about why we need to bring e-filing to Massachusetts.

Permit me a story, that I will call “a tale of two cases.”  Both cases were complex matters, requiring extensive research, writing, and preparation.  In the end, though, one was far easier to get filed with the court than the other, saving my client money (and freeing my time for other important matters).   What was the difference?  One case was in federal court, which permits e-filing, and the other was in Massachusetts state court, which does not.

“E-filing” lets an attorney file papers with a court online.  The attorney merely needs to turn his papers into a PDF (which almost all word programs allow a user to do today), upload them on the federal court website, and submit.  No need to send the other side a copy of what you filed; the other attorneys and court get an automatic notification when something is filed.  Same when the court issues an order or decision.

Massachusetts state courts, in contrast, still require paper filing.  A lawyer needs to print a copy of what they want to file and mail or hand deliver it to the court and other side.  For large lawsuits and motions, the process requires enormous amounts of paper and clerical work to get done.

E-filing is of equal benefit to all attorneys, but is especially needed for solo and small firms like myself.  I don’t rely on clerical staff for my administrative needs and the extra time I spend filing papers with the court takes away valuable time from my clients.  It makes legal services more expensive than they need to be.  Moreover, as a proud alumnus of the nation’s top environmental law school, paper filing consumes enormous amounts of paper.  The picture above is from a recent appeal I did.  The required filing of seven copies of my brief and transcript amounted to several hundred printed pages and hundreds of dollars in printing costs.

E-filing has other advantages as well: it provides attorneys the convenience of working remotely and the ability to view the filings in a case without a trip to the courthouse.  Research is also easier: a lawyer interested in learning about a case can do so from their computer, and not in a busy clerk’s office.

E-filing has worked wonders in federal court, and its time to bring e-filing to Massachusetts.  There are several pilot projects  underway on this important endeavor and here’s hoping that e-filing becomes a permanent part of the Massachusetts state court system.

 

What Is An Unlawful Eviction?

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Being a landlord in Massachusetts is tough.  There are many traps for the unwary; a reason why landlords should always consult a landlord/tenant attorney on Massachusetts’s numerous housing laws.  A good attorney can help landlords navigate these tricky waters and find the best way to resolve these complex matters.

There is one “sin” that is above everything else in matters of Massachusetts landlord/tenant law: an unlawful eviction.  What’s an unlawful eviction?  A unlawful eviction, sometimes known as a “self help eviction”, is an eviction done without a court process, such as changing the locks of an apartment or cutting off the utilities.  These are attempts to evict a tenant without a court hearing and execution for possession.  An unlawful eviction is just that: unlawful and illegal.  Not only will an unlawful eviction subject a landlord to numerous civil penalties, it may even put them in jail.

A landlord who needs to evict a tenant must do so through a formal eviction (“summary process”)  case.  It doesn’t matter how much money a tenant owes, or how much damage a tenant has done: the failure to properly evict a tenant has enormous repercussions and should never, never be done.

If you are a landlord and need to evict a tenant, do the process properly by hiring a landlord/tenant attorney and bringing a lawful eviction against a tenant.  The risks of an unlawful eviction just aren’t worth it.