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.

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.

Selling a Home With Tenants In It: What to Know

Selling a home with tenants in it is a topic that often arises with the listing and purchasing of real estate. While it is common to sell property that is occupied with tenants, both buyers and sellers should be aware of certain topics that often come up in such matters.

Tenancies Remain After the Sale of Rental Property

The most common question I get about selling a home with tenants is whether a tenancy remains after the new owner purchases the rental property. In other words, can a new owner of rental property immediately terminate existing tenancy agreements?

Tenancy agreements, whether they are through a lease or a tenancy at will (“month-to-month”) do not end simply because property is sold.

This needs to be kept in mind before committing to a property sale, if a property must be sold vacant.

If a purchase agreement requires a property to be sold without tenants in it, this needs to be addressed by the seller, either through an agreement with the tenants or an eviction. The mere sale of property, on its own, will not require any existing tenants to vacate the property.

Be Extremely Careful With Security Deposits

All landlords need to exercise extreme care with Massachusetts’ security deposit law. This law regulates the acceptance, holding, and return of a security deposit, and comes with severe penalties if violated.

This law also has specific, detailed requirements for handling a security deposit when property is sold. Both buyers and sellers of rental property need to be aware of these requirements and how to properly handle such a deposit in these circumstances.

Be Mindful of the Responsibilities of Being A Landlord

Landlording comes with specific duties and responsibilities, including (but not limited to) prohibitions on housing discrimination, a duty to keep rental property habitable, and a requirement to use a formal eviction process should a landlord need to evict a tenant.

Failure to comply with any of these requirements can be highly problematic for a landlord.

These responsibilities are the same regardless of whether the buyer of property with tenants intends to remain as a landlord, or no longer wishes to keep renting after the tenants leave.

Final Thoughts

As with most legal matters, the best way to avoid problems is to prevent them in the first place. If you need assistance with a landlord-tenant matter, contact me for a consultation.

Avoiding Housing Discrimination Claims: Three Tips for Landlords

Avoiding housing discrimination claims is a must for any Massachusetts landlord. Such claims come with enormous penalties and exposure, and are frequently litigated in Massachusetts.

Even landlords with the best intentions can have problems with these matters if they are not careful. Here, I’ll discuss three tips to help landlords avoid housing discrimination claims.

Know the Law

While it may sound obvious, knowing the law is the most important tip for avoiding housing discrimination claims. Both state and federal law prohibit housing discrimination. State law, however, typically provides greater protections for tenants, and is the law that landlords should pay particular attention to.

I’m sometimes asked about exceptions to fair housing laws. Some exist, but in my opinion, landlords are best to assume that they are covered by all applicable housing discrimination laws. Doing so keeps one’s potential liability to a minimum.

Emotional support animals, in particular, have become an increasingly large source of these claims. I’ve written and presented on this topic in the past.

Keep Detailed Records For All Applicants and Tenants

As with every landlord-tenant matter, landlords should keep detailed records on all matters concerning applicants and tenants. Housing discrimination claims often come up months (and sometimes years) after the alleged discrimination occurred. Having good records is the key to defending against such charges.

Be Consistent With All Applicants and Tenants

Housing discrimination often arises when an applicant or tenant believes they were treated differently than a similar, other applicant or tenant. To avoid potential discrimination claims, landlords should be consistent in their dealings with such persons.

For example, a landlord should use similar questions when reviewing all potential applicants for tenants. If it is learned that a landlord required certain information from one applicant that was not requested from another, this can be grounds for a potential discrimination claim.

Landlords sometimes believe that housing discrimination requires landlords to rent to those tenants under these protected classification. This is incorrect: housing discrimination simply means that a landlord cannot treat an applicant or tenant differently solely due to their protected classification. If the landlord has a non-discriminatory basis for their conduct, this can be a defense to a charge of discrimination.

Final Thoughts

Housing discrimination claims are a nightmare for landlords. Avoiding such matters is the easiest way of limiting a landlord’s liability from such claims. If you need assistance with such a matter, contact me for a consultation.

Eviction Mistakes: Untimely Filing of Court Documents

The Massachusetts Appeals Court issued an important decision this week on eviction mistakes arising from the untimely filing of court documents. The full decision is below.

Evictions 101

Evictions, known in Massachusetts as “summary process” cases, are done to obtain possession of a rental property from tenants. The intended goal of these cases are to be “just, speedy, and inexpensive.”

With this in mind, evictions move at a much faster pace than most other cases. Evictions can end up in trial less than a month after being filed in court.

Eviction Mistakes: Not Timely Filing Court Documents

A critical part of eviction cases are the deadlines for filing documents. Court filings for eviction cases come with strict deadlines, and the failure to meet these deadlines can be fatal to one’s case.

In this case, the defendant wished to appeal an eviction decision, and filed the notice of appeal after the ten-day deadline. Compared to other types of cases, eviction cases come with an incredibly tight deadline, with little room for error if it is missed.

As this decision notes, case law holds that a court has no jurisdiction to hear an eviction appeal if one is filed after this deadline. Although the defendant’s attorney claimed he never received a written notice of the decision, and therefore did not know that the appeal deadline had begun, the Appeals Court nonetheless still dismissed the appeal.

Practical Implications

Years ago, I won an appeal on a nearly similar issue. These decisions emphasize a critical mistake to avoid with evictions: the importance of timely filing court papers. The failure to do so can be highly problematic in such a matter.

Like the Appeals Court, I am very sympathetic to the defendant in this case. Things do get lost in the mail, especially now, which can be a real problem for those involved in an eviction case (or other legal matter).

An important way to avoid this is to keep an eye on the online court docket for an eviction case. This way, if something is lost in the mail, you can still learn of the case status and when a decision is issued.

Conclusion

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

Mondi

Landlord-Tenant Screening in Massachusetts

An important tool exists for landlord-tenant screening, one that is completely free and easy to use.  All of Massachusetts’s trial court dockets are online, providing both tenants and landlords with the ability to see filed eviction cases across the state.  The website is http://www.masscourts.org.

Eviction (“summary process”) cases are almost always filed in District Court or Housing Court.  To use masscourts.org for landlord-tenant screening, you need to search individually for each court.  The site doesn’t allow a general search for all trial courts across the state.  

However, if you know where the tenant or landlord has resided or owner property (or have a reasonably good idea), you can narrow down the applicable courts.  Bear in mind that searches on the site can be sensitive, and slight variations in names may not produce the desired results (the website is not Google!).

Search results will tell you if a case has been brought by or against a particular party, and a history of the case.  Search results generally will not provide details on the case, such as the reason(s) for evictions and counterclaims.  Information such as this can generally only be obtained by visiting the court and reviewing the case file.

For this reason, masscourts.org isn’t perfect for landlord-tenant screening.  However, it is useful for determining if a particular tenant has been frequently evicted, or if a landlord has often been subject to complaints from tenants.

An important word of caution, from someone who represents landlords and tenants: don’t assume the worst because a party has been involved in an eviction case.  Tenants are sometimes named in eviction cases for no-fault reasons, such as the adult children of parents who are being evicted.  Likewise, claims can be raised against a landlord that aren’t really meritorious, and are only meant to be a “delay” tactic.  In short, while masscourts.org is helpful for landlord-tenant screening, it should never be the only deciding factor in selecting a tenant or landlord.

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

Evicting a Tenant: What To Do

Evicting a tenant is the process required for obtaining possession of rental property. Evictions, known in Massachusetts as summary process, are done through an expedited court process; most often brought in Housing Court or District Court.

A recent news article reveals a disturbing trend about many landlords, due to the ongoing coronavirus pandemic, attempting to evict tenants on their own; a process commonly referred to as “self-help evictions.” Self-help evictions are highly illegal in Massachusetts, and can get landlords in an enormous amount of trouble.

Evicting a Tenant: When Is It Required?

An eviction case is required for obtaining possession against any tenant, regardless of the reason why the eviction is necessary. Although there is a limited exception for tenants engaging in illegal behavior, an eviction is generally required in every other circumstance.

No Self-Help Evictions

A “self-help eviction” is a case where a landlord attempts to remove a tenant from the rental property without a formal court case. Changing the locks, cutting off utilities, and threatening a tenant can all be considered a self-help eviction, and are expressly forbidden under Massachusetts law.

An eviction case requires a landlord, in most cases, to provide the tenant with a notice to quit, serve the tenant with a formal eviction summons, and appear in court. The process takes time and, understandably, can be frustrating, especially when it is against a non-paying tenant.

Presently, there is an eviction moratorium in Massachusetts, which is preventing the filing of almost all eviction cases for the foreseeable future. As such, it is understandable why some landlords may be tempted to bypass a formal eviction case against a tenant. Doing so, however, is a terrible idea, and will be far more trouble than it is worth.

Conclusion

Instead of considering a self-help eviction, contact me for a consultation. While evictions are not going forward now, I can explain the process to you, what can be done in the meantime, and how to prepare for such an action when the courts reopen.

Evictions After Coronavirus

Next week, I’ll be a panelist on a webinar for the Massachusetts Bar Association concerning evictions after coronarvirus. This is a topic that promises to be extremely relevant once the pandemic ends.

What do landlords need to know about evictions after coronavirus?

New Requirements for Notices to Quit

As I have written before, the federal CARES Act has new requirements for notices to quit for non-payment of rent. This applies to only certain categories of landlords, but the reach of this law is large. Landlords need to check whether this law applies to them, and err on the side of caution if there is any question that it does.

Inevitable Delays With Court Proceedings

No doubt, evictions after coronarvius will take much longer to resolve than before. An eviction case in Massachusetts (referred to as a “summary process” action) is intended to be “just, speedy, and inexpensive.” The growing backlog of cases, unfortunately, will put a strain on the court’s resources. Landlords will need to keep this in mind when deciding to pursue an eviction.

Flexibility With Stays of Execution

When evictions after coronavirus resume, it is inevitable that many tenants will request stays of execution. A stay of execution is a request for a court to delay the time by which the landlord can assume possession of the rental property.

Although the law is written only for no-fault evictions, most judges take the position that a stay is permitted in any eviction, under the right circumstances.

Given the multitude of problems arising from the pandemic, I am inclined to think that most judges will be sympathetic to tenants facing eviction after coronavirus. Landlords need to keep this in mind when negotiating with tenants.

Final Thoughts

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