When selecting tenants, landlords should consider keeping a log of each person who views the rental property, and any specific reasons why the landlord did not offer to rent to the prospective tenants. This will help if the landlord is ever accused of discrimination or unlawfully refusing to rent to a tenant (topics I will discuss in a future post).
In Aviksis, several tenants brought suit against their landlord for damages arising from water in the apartment. A father of one of the tenants was a guarantor on the lease and accordingly, was countersued by the landlord for these damages. The father won his case and attempted to recover his legal fees under the law discussed above: G.L. c. 186, § 20. The question for the Court was whether a guarantor of a lease was entitled to attorney fees under this law.
The Court relied on the plain meaning of the statute and held that tenants, and tenants alone, are entitled to the provisions of G.L. c. 186, § 20. Even though the guarantor may have been in the tenants “shoes” for the purposes of this case, the guarantor does not have the same rights as the tenants under this law.
What are the take home points of Aviksis v. Murray?
- Under Massachusetts landlord/tenant law, guarantors of leases are not treated the same as tenants. In short, if you assume liability for a lease, do not expect to get the same protections afforded to tenants under the law.
- Obtaining attorney fees continues to be the exception, rather than the rule, in civil litigation . . . something to always consider in deciding whether to pursue litigation.
What’s a lease? A lease, simply enough, is a contract for the rental of property. As such, a lease is enforceable at law. If a tenant signs a lease (which is usually for a one-year term), the tenant is liable for rental payments during that period of time.
I recently published a guide on Avvo.com on “How to Evict a Tenant in Massachusetts.” As I state in the guide, evicting a tenant generally requires a lawyer’s help, but this guide has advice on what can be done to prepare such a case in advance of hiring a lawyer. I hope this guide is a help to those who need it.
- Jury v. Bench Trial: Parties have a right to a jury trial in an eviction case. However, just because parties have this right does not mean they should always use it. A jury trial requires parties to strictly follow the rules of civil procedure and evidence, which can be a real challenge for a non-lawyer. If a party wants a jury trial, they should give serious consideration to hiring a landlord/tenant lawyer for their case.
- Timelines in an Eviction Case: Eviction cases (“summary process”) move at a faster pace than typical civil cases. Even if a party decides to represent themselves pro se, they need to be prepared to handle court and filing deadlines.
- Settlement: As said by the judge, “litigation is like getting naked in front of a room of strangers.” A court case is never easy for any party, and requires an enormous amount of time and costs for all parties. As explained best by this judge, a court case requires you to go before six unknown people, who have to hear your story and make a judgment. As said best by the judge: a settlement will almost always make everyone happier than a decision by the court—a sentiment I fully agree with.
continues to pay monthly rent. Is the lease still in effect?
Answer: Yes, to an extent. If a tenant continues to pay rent after the expiration of the lease (and the landlord accepts it) the tenant becomes a tenant-at-will (aka “month-to-month” tenant). The prior terms of the lease remain in effect. The major change is that the landlord may end the landlord/tenant relationship with the tenant by giving proper notice. The landlord must give the tenant a minimum of thirty days’ notice prior to bringing an eviction (if the tenant pays rent on a longer interval than a month, such as every two months, than the notice period must be for this length of time).
Mortgage loans insured by the Federal Housing Authority (“FHA”) include specific requirements for foreclosure that homeowners need to be aware of when facing a possible foreclosure.
FHA mortgage loans are insured by the federal government and are aimed at helping low-income Americans buy a home. Because the federal government backs these loans, lenders have a greater incentive to lend to those who might not otherwise qualify for a mortgage loan.
FHA mortgages are different than a standard residential mortgage, and include specific requirements for foreclosure. One of the most important requirements is the “face to face” meeting prior to foreclosure. This requirement, which comes from federal government regulations, requires lenders to have a face-to-face meeting after the borrower defaults on the mortgage loan, prior to the lender foreclosing the property. Not surprisingly, few lenders comply with these requirement.
Here in Massachusetts, a foreclosing entity needs to strictly comply with the terms of a mortgage prior to foreclosure. Several courts have found that these FHA mortgage requirements—specifically the “face to face” meeting—is a term of the mortgage and as such, must be strictly complied by the lender in order for a foreclosure to be valid. As such, a borrower with a FHA mortgage loan has a strong defense against foreclosure if their lender has not complied with this requirement.
If you have a FHA loan and are facing foreclosure, seek the help of an experienced foreclosure defense attorney right away.
Here is a question I am often asked from my landlord clients: Can I recover the rent that I am owed from a tenant?
The answer: it depends. In deciding whether to pursue a claim for damages, a landlord needs to ask themselves two questions: (1) is the tenant working and/or have any assets and (2) can the tenant be located.
The picture above is a spoof of the old adage: you can’t get blood from a stone. In other words, if the tenant does not have documented income and has no assets, the landlord has no way to collect their judgment. Even if the landlord wins a claim for monetary damages, it needs a source of income or asserts to obtain the money owed.
The second major consideration is whether the landlord is able to locate the tenant, after he or she has left the rental unit. In order to bring any type of lawsuit, a party needs to be properly served.
Locating where a person is living is difficult if they do not own real property. It is impossible to garnish the wages if the party has a job, but again, the the landlord needs to know where the tenant is working.
With this in mind, landlords should gave careful consideration to whether it is worth pursuing a claim for monetary damages against a tenant. In many cases, the costs of pursuing this—in both the landlord’s time and legal expenses—will far exceed anything that can be recovered from the tenant. Often, landlords are best off “cutting their losses” by getting the tenant as quickly as possible, even if that means forgoing any claims for money.
Landlord/tenant issues are often affected by the particular type of business organization involved in these matters.
A landlord is either a sole proprietor or a business organization, most often a limited liability company (“LLC”) or corporation. A sole proprietor does business in his or her name. This is common for many residential landlords, who often are renting a unit in their home. As a sole proprietor, the landlord personally enters into leases with the tenants and reports any rental income on their individual taxes.
One of the main drawbacks about being a sole proprietor is that the landlord is personally liable for anything that occurs as part of the landlord/tenant business. For example, if a tenant were injured and the landlord was at fault, the landlord would be personally liable for these damages. For this reason, landlords should consider putting their landlord/tenant business into an LLC or corporation. Not only does this protect the landlord, it also may offer several tax advantages as well. Landlords should consult both a business attorney and tax adviser to determine if this is the right fit for them.
Tenants need to know what type of landlord they have when dealing with a landlord/tenant matter. This is particularly important when determining who to bring to court for a landlord/tenant case. If the landlord is an LLC or corporation, the tenant needs to serve the businesses’s registered agent (which can be found on the Secretary of State’s website). A registered agent is a business or individual designated to receive notice of a lawsuit, and the tenant should include the registered agent in any demand letter or legal papers sent to the landlord.
The type of business organization for a landlord is also important for court proceedings. With the exception of small claims court, an LLC or corporation must be represented by an attorney in court. For this reason, landlords organized as LLCs or corporations need to obtain legal counsel before bringing an eviction or other lawsuit against tenants. Tenants, in turn, should make certain that their landlord is represented by a licensed attorney in court.