Overview of Housing Court Expansion

Housing Court Expansion

After years of stalled legislation, housing court expansion has finally occurred in Massachusetts.  The recently passed 2018 budget provides for statewide Housing Court, allowing all towns and cities access to a regional division of the Housing Court.  Previously, a large segment of Massachusetts towns and cities–including Somerville, Medford, and Chelsea–had no access to a Housing Court division.  This Housing Court expansion allows landlords and tenants from any part of the state to have their case heard in Housing Court.

Overview of Housing Court

Massachusetts’s Housing Court can hear cases for matters involving the health, safety, or welfare of the occupants or owners of residential housing.  The most common cases in Housing Court are eviction (“summary process”) matters; the Boston Housing Court reportedly hears over 150 new evictions each week.  Housing Court functions similarly as any other court in Massachusetts, but comes with the benefit of judges, clerks, and staff who are familiar with housing law.

Transfer to Housing Court 

A unique provision of Housing Court is the ability by either party to transfer a case into Housing Court from another court.  If you are a tenant in an eviction case filed in District Court (a popular venue for eviction cases), you have a right to have your case transferred to the appropriate Housing Court division.  With the Housing Court expansion, this option is now available to all of Massachusetts.  A Housing Court transfer is a simple process, requiring the filling out of a simple form with the original court and the appropriate Housing Court division.

Although Housing Court expansion became effective on July 1, 2017 (pursuant to the 2018 budget), this change is not yet reflected on the Housing Court website or in the law itself.   The 2018 budget is clear, however, that Housing Court expansion has already occurred.  Several eviction cases have already been transferred from District Courts in cities that were not previously under Housing Court jurisdiction, and I expect more to do so in the coming months.

 Is Housing Court Right For Your Case?

Housing Court expansion will inevitably lead to tenants and landlords asking whether this court is the place to bring their case.  Like with most legal matters, the answer depends.  While many argue that Housing Court favors tenants at the expense of landlords, this is too much of a stereotype to label for every Housing Court division in Massachusetts.  The decision on whether to pick Housing Court for your case is an important one, which you should make with the assistance of an experienced landlord/tenant attorney.

Fannie Mae v. Rego: Supreme Judicial Court Permits a Chapter 93A Defense to Foreclosure

 

SJC

The Massachusetts Supreme Judicial Court issued Fannie Mae v. Rego today, an important foreclosure law decision that permits a Chapter 93A defense to foreclosure (full copy of the decision is below).  Chapter 93A, the common name for Massachusetts’s Consumer Protection Law, is a broad consumer statute that prohibits “unfair and deceptive practices” by businesses.  Chapter 93A claims are commonly used for monetary damages, and can provide an an award of treble damages against a party who violates this law (along with attorney fees).  The question for the Court was whether a Chapter 93A defense could be raised to void a foreclosure (as opposed to simply awarding a party money).

Rego  was an appeal of a post-foreclosure eviction (“summary process”) case, where the homeowner was defending against the eviction of his home on the grounds that the foreclosure was void.  The homeowner brought a counterclaim (a lawsuit brought in the same case against the original party who filed the suit) for violation of the Consumer Protection Law.  Here, the trial court dismissed this counterclaim, without offering a real reason for doing so.  The Supreme Judicial Court held in Rego that a homeowner is permitted to raise a Chapter 93A defense in a eviction foreclosure case that goes to the issue of possession of the property; in other words, whether the foreclosure was done correctly.  If this is the relief sought by a Chapter 93A claim, Rego suggests that it can be raised in a post-foreclosure eviction case.  If the Chapter 93A merely seeks monetary damages, such a claim is not allowed in one of these cases (and would have to brought separately).

Rego, in my interpretation, is an important decision because it clarifies that a Chapter 93A claim may be used to void a foreclosure sale.  Many lawyers (and some judges) are not aware that Chapter 93A provides a court with equitable relief.  Equitable relief  is a remedy that goes beyond money damages, and requires a party to act or refrain from performing a particular act.  This type of relief is especially important in foreclosure defense, where the homeowner isn’t looking for money as a defense to foreclosure; the homeowner instead wants the foreclosure reversed.  Rego, in my interpretation, holds that there is a Chapter 93A defense to foreclosure; something that was less clear before today’s decision, where some trial courts took the position that money was the only award from a foreclosure that violated Chapter 93A.

 Rego also decided another issue of foreclosure law: whether an attorney could perform a foreclosure on behalf of a mortgagee without written authorization.  The relevant foreclosure law, G.L. c. 244, Section 14, seemed to suggest that such a writing was required for attorneys who performed foreclosures.  The Supreme Judicial Court held that no such writing is required, and that legal counsel may perform the steps of the foreclosure process without written authorization.  Although the bulk of  Rego was spent on this narrow issue of law, the Court’s decision is unsurprising:  I am aware of only one trial court decision that came out in the homeowner’s favor on this argument (with the overwhelming majority following the reasoning of  Rego).

 Rego

Counterclaims in Massachusetts Eviction Cases

Courtroom

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.

Transfers to Housing Court

Image result for court clipart

Massachusetts’s trial court system has a unique forum for resolving housing matters: Housing Court.  Housing Court has jurisdiction over civil and criminal matters related to the  health, safety, or welfare of the occupants or owners of residential housing.  In addition to eviction cases (probably the most common type of case in Housing Court), Housing Court can hears civil, criminal, and small claims cases related to housing.

Housing Court’s jurisdiction does not cover every town and city in Massachusetts.  Claimants need to check if they live in a part of Massachusetts that Housing Court covers (presently, there is a growing movement to expand Housing Court statewide to every Massachusetts town and city).

Housing Court has a unique feature that allows plaintiffs and defendants to transfer their case into Housing Court, if Housing Court has jurisdiction over the case.  A transfer to Housing Court can be done anytime up to the day before trial and only requires the submission of a simple transfer form to the original court and Housing Court.