This Saturday, I’ll be riding in the Rodman Ride for Kids for Italian Home for Children, a great Boston nonprofit. The Italian Home for Children “provides progressive and therapeutic programs to help children, adults, and families with emotional, behavioral, and educational special needs thrive in their communities.”
I hope you can make a donation. Thanks for your support!
Massachusetts has a little known provision available for those over 65 years old involved in a civil lawsuit: the right to a speedy trial. G.L. c. 231, § 59F provides:
In any civil action in any court of the commonwealth in which one or more of the parties at the time of commencement of the proceeding is sixty-five years of age or older or during the pendency of the proceeding attains the age of sixty-five, the court shall, upon motion of such person, advance the proceeding for speedy trial so that it may be heard and determined with as little delay as possible.
Law and Order fans know that defendants in a criminal case have a right to a speedy trial from the U.S. Constitution, but Massachusetts similarly allows this for civil cases (I’m not aware of any other states that do the same).
The law appears to apply for any civil lawsuit, but it can be of particular importance in Massachusetts landlord/tenant cases, particularly eviction (“summary process”) cases. While Massachusetts eviction cases are intended to go to trial in a matter of weeks after filing, a busy court docket can keep cases from getting to trial right away. For those parties over 65, Massachusetts’s right to a speedy trial can be used to try to “bump” an eviction to the top of the trial list.
This requires a party to make a motion to the court. Parties who are unfamiliar with pre-trial litigation should consult an attorney for advice on how to do this.
Massachusetts tenants in eviction (“summary process”) cases have the option of suing the landlord who is trying to evict them, in an action known as a counterclaim. A counterclaim, simply put, is a lawsuit brought against the party who first filed the lawsuit. Counterclaims are permitted in eviction cases brought for a tenant’s failure to pay rent or a no-fault eviction. Counterclaims are not permitted for cause evictions (ex. violating the terms of a lease).
Counterclaims are allowed for “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Examples of counterclaims by tenants include retaliation, violation of the Consumer Protection Law, and allegations that the rental property was not habitable.
An important thing about counterclaims in summary process is that they are not mandatory. A tenant can choose to file a counterclaim, but does not lose that claim if he or she does not file it. This is unlike most other civil cases, where the party can lose that claim if they do not raise it in a prior case.
Should you raise counterclaims in summary process? Counterclaims can sometimes be good leverage for a tenant trying to negotiate a settlement, and it can save time for the tenant by having these issues determined in one single lawsuit. On the other hand, eviction cases in Massachusetts move at a fast pace, with limited discovery (the ability to learn about the other’s side position through written questions and document requests). Some claims are too complex for summary process, and are better pursued in a separate court case (a personal injury claim, for example, is probably too complex for summary process).
Tenants should also bear in mind that if they do pursue a counterclaim and are unsuccessful, they may not get a chance to try the claim again.
Consult with an attorney if you find yourself in an eviction and need help in determining whether to raise counterclaims in your case.
September 1st is one of the biggest moving days in Boston. With more than 100 colleges in the Boston region, there will be plenty of college students moving in and out of apartment in the city (along with other residents whose leases will be expiring). Many of these movers will be using moving trucks, often through rental services such as U-Haul and Penske. The City of Boston and many surrounding cities require parking permits for these trucks; something many movers do not know until it is too late. Fortunately, this year, the City of Boston has made it easier for movers to obtain these permits by allowing them to apply online, instead of in person.
Here are some other tips for moving this September:
- Take pictures of your rental unit before moving in, as proof in case a dispute ever arises over claims of damagew or poor maintenance.
- If you gave your landlord a security deposit and/or last month’s rent, be sure to obtain a receipt from your landlord (if you gave these payments in cash, and not by check).
- Consider obtaining renters insurance for your new place. It is often inexpensive and covers many potential damages that might arise out of your control.
- Drink plenty of water . . . summer is still here!
Best of luck to everyone moving this September. If you have problems with your new apartment, or are in need of landlord/tenant advice, contact me for a consultation.
As a landlord/tenant attorney, I have learned that sometimes the simplest advice is the best. It is common, especially with contentious landlord/tenant relationships, for allegations to surface regarding the failure of one party to properly maintain the property. When one of these situations arises, the old adage that “a picture is worth a thousand words” has much meaning. This advice comes into play when dealing with allegations by both landlords and tenants alike regarding poor conditions in rental property.
In law, it is not what you know; it is what you can prove. An allegation that a tenant has damaged the rental property, or a claim that a landlord has not properly fixed something in the unit, means little if you cannot prove it. One’s testimony on these matters is helpful, but the best proof is photographic evidence. If you find yourself in such a scenario, do yourself a favor and take good pictures of what you want the court to see. To leave no doubt that the picture was taken at a certain date, include a copy of the daily newspaper in the pictures. Everyone today has a smartphone and/or tablet, and there is really no excuse for not documenting this evidence. And you do not need to wait until a problem has arisen to do this; both landlords and tenants should take pictures of rental property before and after moving into the unit. If problems arise, these photos can make or break your case.
If you ever do need to show these photos to the court, remember that the court will generally not look at these pictures on your phone and/or tablet. You will need hard copies of these photos, so print these pictures in advance of your court date.
Moreoever, photos are often the preferred means of presenting unfavorable rental conditions in court. Believe it or not, some tenants have come to court with dead rodents and bedbugs to present as evidence; something the court will not be happy about! A picture is the much better alternative.
Are you in such a scenario? Contact me for a consultation.
I’m pleased to announce that I’ve updated my blogs and website. I hope the new format is easier to navigate and better integrates all of my content. The biggest change is for my blogs, which are now part of the website itself. Thanks for visiting!
A recent Boston.com article
illustrates the perils of housing discrimination in Massachusetts. The U.S. Department of Justice filed a civil complaint against a North Attleborough apartment complex owner for discriminating against applicants with children. This owner reportedly tried to discourage renters with children from renting one of his apartments. The parties in this case reached a settlement: $135,000
in restitution (and likely a great deal for attorney fees for the apartment owner).
Housing discrimination is illegal, both under state and federal law. As this article shows, these laws are enforced. Landlords caught discriminating against potential tenants can face huge fines, even if the alleged discrimination is inadvertent.
With this in mind, landlords need to familiarize themselves with the protected classes of persons from discrimination (The Massachusetts Attorney General’s Office has a great summary of these laws
). I always recommend that landlords keep a log of all the potential tenants who look at their rental properties, and the specific reasons why the landlord decides to reject an applicant. Landlords who are concerned about asking the wrong questions during the application process should consider using a script and write their questions in advance. While this may sound overkill, the risks of being accused of rental discrimination just isn’t worth it.
Sometimes, a party in a landlord/tenant case needs the court to do more than simply award monetary damages or possession of the property. In such cases, injunctive relief can be a good option.
An injunction is a court order that mandates or prohibits a party from doing a certain action. A landlord, for example, can obtain an injunction against a tenant to enjoin them from damaging property (if they have sufficient evidence that this harm is occurring). Tenants can also get injunctions; these are obtained frequently when a landlord refuses to fix dangerous conditions in a property.
To get an injunction, a party needs to show irreparable harm–damages that cannot be resolved through monetary damages. Fortunately, matters involving property are often sufficient for this type of relief.
If you are facing a landlord/tenant problem that requires immediate attention, consult an attorney
to determine if an injunction is right for you.
An option for landlords and tenants who need to sue for low amounts of money ($7,000 and under) is small claims court. Small claims cases may be brought in District Court, Boston Municipal Court (if your case occurred in Boston) or Housing Court (if your case directly concerns a housing issue).
Compared to other courts in Massachusetts, small claims court is an informal process, intended for parties to use without the help of a lawyer (although parties may have a lawyer represent them if they chose to). The rules of evidence are relaxed and trials are informal. In most small claims sessions, parties also have the option of trying mediation to settle their disputes.
Landlords can use small claims court to seek unpaid rent against tenants, as well as damages to the rental property. While landlords can pursue unpaid rent against tenants in an eviction case (“summary process”)
, an eviction case requires a dispute over possession
of the rental property. If the tenant is no longer living in the property, summary process is the wrong forum for disputes over unpaid rent. Moreover, a landlord cannot pursue monetary claims for damages beyond unpaid rent (such as physical damages to the premises) in summary process. Tenants can use small claims court for claims against landlords, such as violations of the security deposit law and poor conditions in the rental property.
While small claims is useful for resolving certain disputes, there are drawbacks to this process. For example, a plaintiff in small claims waives their right to an appeal; if they lose, the case is over. Discovery is also limited; parties may not be able to obtain the same information from the other side as they would in another court. Finally, small claims court is primarily for recovering monetary damages; parties are generally unable to obtain non-monetary relief (such as a restraining order or injunction).