Landlord Liability for Dogs

On the issue of landlord liability for dogs, a recent Appeals Court decision keeps landlords out of the doghouse for some of the problems that can arise from a tenant’s pets. The full decision, Creatini v. McHugh, is included below.

Background

This was a lawsuit brought by a man who was riding a bicycle with his dog running on a leash beside him, and attacked by a tenant’s dog on the street. This man sued the tenant’s landlord for his damages: someone he did not know, and who he never had any sort of relationship with.

Besides the obvious question, of why this man was riding a bicycle while walking his dog, this case raises the important issue of a landlord’s liability for a tenant’s dog. As the Court explained, does “a landowner h[ave] a legal duty to protect passers-by from a dog kept on the landowner’s property, but owned by the landowner’s tenant?”

Here, the Court ruled “no.” As explained in the decision:

Here, [the landlord and other party] had no special relationship.
Indeed, they had never met. Creatini’s injury did not occur on
McHugh’s property, but on a public street. Nothing in the
summary judgment record indicates that McHugh was aware that
Mills’s dog was aggressive or prone to attack passers-by. In
these circumstances, we agree with the judge’s conclusion that
“[a]n injury to a person running a leashed dog while riding a
bicycle on a public street from a dog fight started by an unleashed dog is not a foreseeable event that warrants the
imposition of a duty upon a landlord.”

Practical Implications

Creatini is a good decision for landlords. Imposing liability on a landlord in these circumstances would have opened the “flood gates” for all sorts of potential liability for a tenant’s conduct.

I caution, however, that there are three critical parts of this decision that lead to this outcome: (1) the injured man had no relationship to the landlord; (2) the landlord had no knowledge that the dog was dangerous; and (3) the injury occurred on the street, and not on the landlord’s property.

If any of these facts were different, this decision could have come out the other way. If, for example, the landlord knew that the dog could have caused harm to someone else, a stronger case could have been made against the landlord. For this reason, landlords cannot turn a blind eye if they have good reason to believe that a tenant’s dog is dangerous.

Conclusion

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

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Eviction Notices During COVID-19

As the COVID-19 pandemic continues, new state requirements now exist for the service of non-payment of rent notices to quit. This includes a required attestation form and the filing of the notice to quit with the Commonwealth of Massachusetts.

Eviction Notices During COVID-19: What’s Required?

For non-payment of rent notices to quit, state law now requires that landlords serve tenants with an attestation form, which provides an overview of the eviction process and resources available for tenants (a copy of the form is below).

This form must be served with the notice to quit, and both documents must be filed online with the state.

Practical Implications

Landlords need to be careful with eviction notices during COVID-19. Failure to comply with any of these requirements will likely derail an eviction case.

One of the requirements under the attestation form is to state whether the rental property is a “covered dwelling” under the federal CARES Act. If it is, this federal law requires a landlord to use a thirty-day notice to quit (rather than the standard fourteen-day notice).

Because it can be difficult at times to determine whether rental property falls under this law, I am erring on the side of caution and using a thirty-day notice, in most cases.

Landlords should be mindful that the CDC eviction moratorium remains in effect through the end of the month (and will almost certainly get extended). This moratorium does not prevent the filing of an eviction case, but it does stop a landlord from obtaining possession of rental property while the moratorium remains in place.

Conclusion

If it isn’t clear already, eviction notices during COVID-19 are tricky and can be a trap for the unwary. To avoid some of the pitfalls that can arise in these matters, contact me for a consultation.

Form

MCAD Complaints Against Landlords

MCAD complaints against landlords generally occur when a prospective, prior, or current tenant accuses a landlord of housing discrimination. When faced with such a claim, landlords need to act promptly and diligently in responding to such charges.

What is MCAD?

The Massachusetts Commission Against Discrimination (“MCAD”) is a state agency that handles discrimination claims, including those concerning housing.

MCAD is not a court, but functions in a similar manner, and has the power to issue decisions and award damages for violations under the law. For this reason, MCAD complaints against landlords are just as serious as any court case.

MCAD complaints against landlords begin with a notice that a claimant has filed a claim of discrimination against the landlord, which is followed by an investigation and determination on whether the tenant has a viable claim. MCAD will then see if a settlement can be reached. If a resolution is not possible, the matter will proceed to a hearing, in a manner similar to a trial.

Housing Discrimination

Housing discrimination is prohibited under federal and state law, and is a serious offense. Housing discrimination law prohibits a landlord from treating a tenant differently based on a protected classification, such as race or gender.

How to Handle a Housing Discrimination Claim in MCAD

When faced with a housing discrimination claim from MCAD, landlords must act promptly. Such a claim generally requires a landlord to respond by submitting a position statement, where the landlord gives their side of the story. Do not ignore a MCAD notice!

Compared to a court, MCAD is intended to be more “user” friendly, and it is not uncommon for tenants and landlords to represent themselves. However, given that MCAD functions nearly the same as a court, landlords should strongly consider hiring an attorney to represent them in such a proceeding. This is especially true given the many complexities of most housing discrimination cases.

Conclusion

As with any other legal proceeding, an MCAD complaint needs to be addressed timely and properly. If you need assistance with such a matter, contact me for a consultation.

CDC Eviction Moratorium: Three Things to Know

The CDC eviction moratorium, which came out in September 2020, remains in place through the end of January 2021, and will almost certainty get extended.

Here, I’ll discuss three things to know about the moratorium.

The Moratorium Only Applies to Non-Payment of Rent Eviction Cases

The CDC eviction moratorium, importantly, only applies to non-payment of rent cases. If a landlord is evicting for no-fault or evicting because the tenant broke a term of their lease, the moratorium does not apply.

Massachusetts, however, allows a landlord to assert a claim for unpaid rent in every type of eviction case . . . not just those for unpaid rent. For example, if a landlord is evicting because the tenant violated a lease term, the landlord can still make a claim for unpaid rent in that case, even if the unpaid rent is not the main reason for the eviction. It remains an unresolved question as to whether the CDC eviction moratorium applies in those circumstances.

Tenants Must Invoke the CDC Moratorium On Their Own

Importantly, the CDC eviction moratorium requires tenants to take the initiative for invoking these protections. A tenant must do so by providing their landlord with a signed declaration (available online).

The CDC declaration includes some specific requirements for tenants, including an income restriction and a representation that the tenant is using “best efforts to obtain all available government assistance for rent or housing.”

When filing an eviction case, a landlord must file an affidavit with the court stating whether or not the tenant has invoked this declaration (a copy of this affidavit is included below). Landlords need to be especially careful with this requirement. A landlord’s failure to timely notify the court about a CDC declaration could lead to severe penalties and delay in eviction.

A Landlord Can Still Initiate An Eviction Under the Moratorium, But Will Be Delayed in Obtaining Possession

Compared to the prior state eviction moratorium in Massachusetts, the CDC moratorium still allows a landlord to file and proceed with an eviction case against a tenant. The main restriction under the CDC moratorium is that a landlord cannot obtain a court order for possession (“execution”) while the moratorium remains in place.

While there is still some inevitable delay to landlords in obtaining possession of a rental unit, the CDC moratorium is not a complete bar on evictions. For this reasons, landlords can and should move forward with an eviction case for non-payment of rent.

Final Thoughts

Although the CDC moratorium does delay the eviction process, it isn’t the end of the world for Massachusetts landlords, as eviction cases can still be filed. This, in my opinion, is critically important: the sooner that one of these cases begins, the sooner a resolution can be reached. Often, the mere filing of an eviction case is enough to move one of these matters along.

If you need assistance with a Massachusetts eviction, contact me for a consultation.

Affidavit

Evicting Tenants During COVID-19

Evicting tenants is a process that always requires prior planning and preparation. As the COVID-19 pandemic continues, the eviction process is slightly different and requires an even greater level of expertise.

Here, I’ll discuss what to know about evicting tenants during COVID-19 in Massachusetts.

Is an Eviction Necessary?

When deciding whether to evict a tenant, it is always worth considering whether an eviction is necessary. This usually comes up for non-payment of rent cases, where the landlord is seeking to evict solely because of unpaid rent (and not because of any problems with the tenant).

In such a case, it is worth seeing if the landlord or tenant can apply for assistance that can help with unpaid rent. Massachusetts’s Residential Assistance for Families in Transition (“RAFT”) is a state program designed for helping tenants in need. Some towns and cities, such as Malden, have local programs for helping avoid eviction.

New Eviction Requirements

Eviction requirements continue to change almost monthly as the pandemic continues. The existing federal CDC moratorium is in place until December 31, 2020 (any may get extended).

Massachusetts recently passed new requirements for eviction notices to quit. This adds new disclaimers for non-payment of rent cases.

New Eviction Procedures

For the eviction process itself, the biggest change is how eviction cases begin. Pre-COVID, eviction hearings occurred on a weekly basis, with all sides required to attend court on a designated date, and go to trial if a resolution to the matter could not be reached.

Now, most evictions start with a status conference with the court staff, aimed at determining how both sides wish to handle the case. Importantly, an opportunity generally exists for a mediation to occur prior to getting deep into the eviction case.

This, in my opinion, is a welcome change in the Massachusetts eviction process, and one that I hope continues post-COVID. It makes much more sense to get landlords and tenants to start discussing a resolution of an eviction case as soon as possible, rather than spend time and money in court.

Final Thoughts

If you assistance with a Massachusetts eviction, contact me for a consultation.

Section 8 Evictions

foreclosure appeal

Section 8 evictions, compared to other residential evictions in Massachusetts, follow a slightly different set of rules and restrictions. This week, the Appeals Court issued a decision clarifying the required notice to quit for Section 8 evictions.

Ironically, I had been working on this exact issue the day before the Appeals Court issued this decision. I wish the courts would consult me before issuing their decisions!

What is Section 8?

Section 8 is a federal program that provides housing vouchers to those with low income. Section 8 caps the amount that participants must pay in housing (usually 30% of gross income) and subsidizes the rest.

Section 8, importantly, pays this voucher directly to the landlord and does not provide rental housing directly. Section 8 requires landlords and tenants to enter into a specific type of lease and rental paperwork.

Notices to Quit for Section 8 Evictions

Notices to quit are required for nearly every eviction in Massachusetts. For Section 8 evictions, however, the required paperwork for these tenancies have detailed requirements about what must be included in these notices, and include limitations on the potential grounds for eviction.

One of the central issues in this case was whether a Section 8 tenant, who had become a tenant at will (a “month-to-month” tenant) could be evicted for no-fault. Such a scenario occurs when a tenant has stayed pass the lease term, but continues to stay in the rental apartment and pay rent.

Typically, a tenancy at will can be ended by either the landlord or tenant, with no reason needed from either side. However, because the Section 8 paperwork seemed to suggest that a reason is needed for a Section 8 eviction, it remained unclear whether a no-fault eviction was ever allowed for Section 8 tenancies.

The court concluded that a no-fault eviction could be brought against a Section 8 tenant. However, unlike other no-fault evictions, the notice to quit for a Section 8 tenant is required to include an explanation for eviction. Even though no reason was required for the eviction, the landlord needed to expressly state that to the tenant in the notice.

Practical Implications

A paragraph at the end of this decision summarizes these points about evicting a Section 8 tenant:

This case demonstrates that landlords of Section 8 tenants
must be careful to comply with the notice provisions contained
in paragraph 8(g) of the HAP contract tenancy addendum even where the tenancy is at will. Those notice provisions do not
displace the landlord’s ability to terminate an at-will Section
8 tenancy, but they do require that the tenant receive notice of
the reason for the termination. That reason must be contained
either in the notice to quit or the summary process complaint.
Where there is cause for the termination, either the notice to
quit or the summary process complaint must so state; and the
same is true where there is no cause for the termination.

I would add that, in addition to specific requirements on notices to quit, Section 8 often requires that the housing administrator be notified of any eviction proceeding. For this reason, landlords need to review Section 8 paperwork carefully before starting the eviction process (or get the assistance of a qualified landlord-tenant attorney).

Conclusion

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

Massachusetts State Eviction Moratorium Ends: Three Things to Know

The Massachusetts state eviction moratorium officially ends today, with Governor Baker declining to extend this protection for tenants. Here, I’ll discuss three things for landlords to know about the status of evictions in Massachusetts going forward.

A Federal Eviction Moratorium, Under the Centers for Disease Control and Prevention (“CDC”), Remains in Effect

Although the state eviction moratorium has ended, a federal regulation remains in place through the end of 2020. Compared to the state eviction moratorium, the CDC regulation is far less burdensome for landlords.

The CDC regulation only applies to evictions for non-payment of rent, and requires tenants to take the affirmative step of invoking the protections of this regulation, through an affidavit to the landlord. Under this regulation, a tenant (who meets specific criteria) prohibits a landlord from evicting a tenant through December 31, 2020.

Importantly, this regulation does not prohibit the filing of an eviction case; it only prevents the actual eviction of a tenant. In other words, a eviction case may go forward, but the actual process of removing a tenant from rental property must wait until next year.

The prior state eviction moratorium, in contrast, stopped all stages of the eviction process, and applied to nearly every type of eviction.

New Requirements for Non-Payment of Rent Notices

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, which passed earlier this year, requires certain landlords to use a thirty-day notice to quit for non-payment of rent eviction cases (as opposed to a standard fourteen-day notice to quit).

This requirement only applies to landlords with a federally backed mortgage, or a participant in a federal grant or voucher. The language of this law is broad, and covers a wide array of different federal programs. For this reason, landlords should err on the side of caution when deciding whether to send a fourteen or thirty day notice for non-payment of rent.

It remains unclear how long this requirement remains. For now, I recommend following this requirement for the imminent future.

New Eviction Procedures in Housing Court

The procedure for evictions in Housing Court has changed, and will likely never be the same again. Before, eviction trials were automatically set by the court’s schedule, on a weekly basis. Now, trials will be scheduled following an initial conference with the court’s staff.

Hearings and trial, importantly, will likely done through Zoom, with few in-person hearings at courthouses.

Although the formal protections of the state eviction moratorium are over, Housing Court still has the inherent ability to offer tenants more time to stay in a rental apartment, under appropriate circumstances. I suspect, strongly, that Housing Court will continue to entertain such requests from tenants in the months to come.

As a practical matter, there is an enormous backlog of eviction cases in the courts now, with many more to come. Landlords need to be practical and realistic about what to expect from the eviction process going forward.

Final Thoughts

If you need assistance with a Massachusetts eviction, contact me for a consultation.

Landlord Advice: Five Tips for Renting in Massachusetts

Landlord advice is a topic I am often asked about for those renting in Massachusetts. Here, I want to share several tips on this important topic.

Use a Written Agreement for All Tenancies

There are generally two options for renting to tenants: a lease (with a specified duration for the tenancy) or a tenancy-at-will (where either party can end the tenancy with proper notice). While leases are generally in writing, tenancies-at-will (often known as “month-to-month” rentals) can be done verbally.

Verbal tenancy agreements should always be avoided. A written agreement should be used for any tenancy relationship and include, at a minimum, the amount of rent, terms of the tenancy, and responsibility for payment of the utilities.

Keep Extensive Records

Records are critical for landlords. If a dispute ever arises with a tenant, having such records are vital for a proper defense.

Records should always be kept of all rent billed and received from a tenant, all work done on the rental property, and all communications between the landlord and tenant.

Don’t Take A Security Deposit

Massachusetts’ security deposit law is long, complex, and impossible to fully understand. Few landlords are in perfect compliance with this law, and any violation can be expensive and time consuming.

Know the Housing Discrimination Laws

State and federal law prohibits housing discrimination. A landlord needs to know these laws and ensure that they are following them. It is a good idea for landlords to review these laws every year, as they do change, and a refresher is always a good idea.

Be Compliant With the State Sanitary Code and Local Zoning Ordinances

All residential housing in Massachusetts comes with an implied warranty of habitability. This means that the property must be fit for a tenant to live in. This responsibility cannot be waived or avoided, under any circumstances.

The guiding star for complying with this warranty is the state sanitary code. A landlord in compliance with this code will generally avoid most potential claims arising from the condition of the rental property.

A landlord should similarly be mindful of local zoning ordinances, and ensure that a property is allowed for renting under the applicable rules and regulations.

Final Thoughts

Renting in Massachusetts isn’t easy, but having a solid background of the applicable laws is critical for avoiding problems in this area of law. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Evicting Commercial Tenants in Massachusetts

Evicting commercial tenants is a different process than a residential eviction, which are more common in Massachusetts. Although commercial evictions often occur through the same court procedure, the underlining law is different.

With the existing eviction moratorium expected to expire in several weeks, commercial evictions will likely resume soon and, given the economic repercussions of COVID-19, be heavily litigated in the months ahead.

Filing a Commercial Eviction Case

Commercial eviction cases are generally through the same eviction process as residential cases, known as summary process. Summary process cases move at a much quicker pace than other civil cases.

Such cases are generally filed in District Court, but may be filed in Superior Court if the owed rent is at least $25,000.

Importantly, commercial evictions may not be brought in Housing Court.

Under Massachusetts law, business entities (ex. corporations, limited liability companies) and trusts must be represented by an attorney in court (except for small claims cases).

As most commercial landlords exist as a business entity or trust, it is important to have an attorney handling the case. Courts can and will dismiss an eviction if a non-attorney attempts to handle it on their own.

Fewer Defenses for Commercial Tenants

Compared to residential evictions, there are far fewer defenses available for tenants in commercial evictions . The law allows landlords to make commercial tenants largely responsible for the care and maintenance of the rented premises. Many laws protecting residential tenants, such as the onerous security deposit law, do not apply to commercial tenancies.

Final Thoughts

Evicting a commercial tenant must be done with care and with knowledge of the applicable laws and summary process rules. If you need assistance with such a matter, contact me for a consultation.