72 Hour Notice to Quit

A 72 hour notice to quit is a unique type of notice that is generally used for post-foreclosure eviction (“summary process”) cases.  Receipt of one of these notices is a sign that an eviction case following a foreclosure sale will begin soon.

A notice to quit is required prior to the start of an eviction case.  For evictions involving landlord/tenants, where the parties previously entered into a rental agreement, there are specific requirements for the notice to quit required prior to eviction.  Terminating a tenancy for non-payment of rent, for example, generally requires a 14 day notice to quit.  The sending of a notice to quit for a landlord/tenant eviction is a mandatory part of the process; a court will throw out an eviction if the proper notice is not sent, or the landlord cannot prove that the landlord received it.

The same is not true for a post-foreclosure eviction case, where the landlord (often the bank or lender who purchased the home at the foreclosure sale) is attempting to evict the former homeowner.  There is no specific requirement as to what type of notice a foreclosing entity needs to provide to a former homeowner.  Many cases on this matter suggest that no notice to quit is required for one of these cases (unlike a landlord/tenant eviction).

Despite the law suggesting that no such notice to quit is required, out of custom, a 72 hour notice to quit is generally used for post-foreclosure eviction cases.  This notice informs the former homeowner that they have 72 hours to leave the property, or an eviction will begin.  A notice to quit is generally served by a sheriff or constable.

Despite the 72 hour “deadline” in one of these notices, a former homeowner does not need to leave their home after receiving one of these notices.  A homeowner only needs to leave the home after a court enters an execution for possession, allowing the owner of the property to physically remove the former homeowner and their possessions from the property.  Before doing so, a former homeowner (like a tenant) is entitled to their “day in court” and allowed to present their reasons why they should not be evicted from the home.  The 72 notice to quit, simply put, is merely the start of the eviction process, and not the end.

A homeowner who receives a 72 hour notice to quit needs to act quickly in defending themselves against the imminent post-foreclosure eviction.  If you find yourself in such a case, contact me for a consultation.  Eviction cases move quickly, and it is important to have an experienced attorney to help you understand your rights.

Does a Landlord Need a Reason for Terminating a Tenancy?

Does a landlord need a reason for terminating a tenancy?  The answer depends on the type of tenancy that exists between the landlord and tenant.

In a tenancy at will, the rental agreement between the landlord and tenant continues until either party chooses to end it.  As an agreement “at will”, either party is free to end the tenancy simply by providing adequate notice to the other side.  Tenancies at will are generally month-to-month rental agreements, which requires the landlord to provide the tenant with thirty days notice prior to ending the tenancy.  The landlord, importantly, does not need to provide the tenant with a reason for terminating the tenancy.

In contrast, a tenancy by lease, where the rental term is fixed by the terms of an agreement, generally requires a reason for terminating the tenancy.  Here, the terms of the agreement generally defines the grounds for terminating the tenancy, and the type of notice that the landlord must provide to the tenant.  Such an eviction is known as a “for cause” eviction for that reason: the landlord must have a reason for terminating the tenancy.  This generally occurs when the tenant has broken one of the terms of the lease.  A landlord can also terminate a tenancy by lease for non-payment of rent.  Absent one of these reasons, a landlord cannot arbitrarily terminate a lease agreement (unless the agreement provides for this).  This is one of the benefits of a lease: a tenant is guaranteed a place to rent for a set period of time.

Regardless of the type of tenancy, there are limitations on the grounds that a landlord can use to terminate a tenancy.  A landlord can never discriminate against a tenant on the grounds of race, ethnicity, religion, or one of the other protected classes of discrimination under state and federal law.  Similarly, a landlord can never retaliate  (“punish”) a tenant by terminating a lease due to a tenant’s reporting of bad conditions in a rental unit.  A landlord who terminates a tenancy for one of these reasons can get into huge trouble, and be liable for large monetary damages.

If you find yourself in a situation involving the termination of a tenancy, contact me for a consultation.

Fee for a Tenant Attorney

Courtroom

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.

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

SJC

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.

99 Homes: Fact v. Fiction

99 Homes Movie Poster.jpg

When foreclosure defense comes to the big screen, you know I’m going to see it.  I took a break from work this weekend to watch 99 Homes, a movie about the 2o1o foreclosure crisis in Florida.  Overall, I thought it was a great movie that brought to life many of the issues I confront with foreclosure defense.   The movie tells the story of a father who, after losing his job, is foreclosed.  In need of work, he ends up getting hired by the same realtor who evicted him, and falls into the sleazy work of foreclosing people who were in his same situation.

For this post, I want to discuss the facts v. fiction of the depiction of the foreclosure/eviction process as shown in the movie.  Bear in mind that I am a Massachusetts attorney, which has a different foreclosure process than Florida.  However, many of the issues remain the same regardless of the state where a foreclosure occurs.

FACT

  • Difficulty in Contacting a Loan Servicer/Bank is a Major Reason Why Foreclosures Occur 

99 Homes does a great job of showing how a homeowner’s inability to successfully work with a loan servicer/bank is often the reason for foreclosure.  Too often, I have seen banks willfully ignore loan modification applications for qualifying homeowners and create excuse after excuse for refusing to properly consider homeowners for loss mitigation assistance.  99 Homes shows how the banks’ refusal to properly offer this assistance has forced many homeowners into foreclosure.

  • The Court Process is Not “User Friendly”

99 Homes shows many of the homeowners attempting to represent themselves in court, with disastrous results.  The movie takes place in 2010, when courts were flooded with foreclosure cases, and many judges simply pushed these matters through.  While things are better now, the court process can still be very difficult to understand, especially for a lay person.  For foreclosure defense, a homeowner should strongly consider seeking the assistance of an experienced lawyer with these matters.

  • The Federal Government is a Major Owner of Foreclosed Properties 

The realtor in 99 Homes often discussed how “Fannie/Freddie” were two of his largest clients.  Fannie Mae and Freddie Mac are government-sponsored entities who are the owners of many mortgage loans across the country.  When a foreclosure occurs, these entities often become the owner of these homes.

  • “Cash for Keys” Is a Popular Means of Shortening the Foreclosure/Eviction Process

The movie depicts the use of “cash for keys” for settling post-foreclosure eviction cases: the bank offers the homeowner a cash settlement (usually $3,000-$5,000) to immediately leave the home.  “Cash for keys” isn’t a terrible option for homeowners who wish to leave their homes and need financial assistance in doing so.  A homeowner interested in this deal should still consult an attorney to discuss this option.

FICTION

  • A Homeowner Facing Foreclosure Can Be Out in a Matter of Days

99 Homes seems to suggest that a homeowner can be out of a foreclosed home in a matter of days.  In Massachusetts, the entire foreclosure process can take 2-3 years, which leaves homeowners with the time necessary to try and save their homes.  Sooner is always better than later in fighting a foreclosure, but rarely does a homeowner only have a matter of days to deal with a foreclosure.

  • Homeowners Have Limited Means of Fighting Foreclosure

Many of the homeowners in the movie are depicted as having few, if any, defenses to foreclosure.  In reality, homeowners have many more defenses available, such as a loan servicer’s refusal to properly consider a loan modification and failure to send the required notices required by the mortgage and law.  Not all of these defenses will work for each homeowner, but homeowners often do have means of defending themselves in these cases.

In need of assistance with foreclosure defense?  Contact me for a consultation.

Summary Process 101

Evictions in Massachusetts are known as “summary process.”  The goal of summary process is found in Rule 1 of the Uniform Rules of Summary Process: “the just, speedy, and inexpensive determination of every summary process action.”  In other words, summary process cases are intended to move at a much faster pace than a typical civil action.  While it can often take years for a civil lawsuit to go to trial, summary process cases are intended to be tried only weeks after the filing date.

To begin a summary process case, the landlord must serve the tenant(s) with a notice to quit, which explains the reason why the tenant is being evicted (more on this later).  This notice of quit must provide a date by which the tenancy is terminated.  After this date, if the tenant has not left the premises, the landlord can begin the case.

The start of a summary process case is opposite that of a typical civil lawsuit.  In a typical lawsuit, the plaintiff first files the lawsuit and then serves it on the defendants.  In summary process, the plaintiff/landlord begins the case by serving the defendant/tenant with a summary process summons, which must be obtained from the court.  On this summons, the plaintiff/landlord selects the date that he will file the lawsuit; called the entry date.  After the summons is served on the defendant/tenant, the landlord can file the lawsuit, which must be done at least seven days (but no more than thirty) from the date the summons was served (click here for a useful timeline of a summary process case).  From there, the case begins.

Confused?  You aren’t the only one; summary process can be a complicated.  Given the stress and heartache these cases can cause, I recommend seeking legal assistance if you are involved in one of these cases.  Contact me for a consultation.