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.

g19P1342

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.

Ending a Lease Early: What to Know

Ending a lease early is a matter that often arises when either the landlord and/or the tenant wishes to terminate the rental term before the designated date in the lease agreement. Several factors must be considered when such a matter arises.

Ending a Lease Early by Mutual Agreement

The easiest scenario for ending a lease early is when both the landlord and tenant want the lease to end. Just as with nearly every contract, parties are free to reach a mutual agreement for termination.

In such a case, the landlord and tenant should always put this in writing, and clearly state the date by which the tenancy is over. Landlords who are holding a tenant’s security deposit or a last month rent need to mindful that certain obligations arise when a tenancy is over, and ensure they comply with these applicable laws.

Ending a Lease Early by the Landlord and Tenant’s Conduct

It is a common misconception that only a written agreement can end a lease agreement. Rather, an agreement to reach a lease can occur “from the attendant circumstances and conduct of the parties.”

This means that, although no agreement was put in writing, the actions taken by the landlord and tenant can lead to a determination that the lease ended. For example, if the landlord accepts the apartment keys from the tenant, immediately assumes possession of the unit, and otherwise acts as if the lease had ended, there is a good argument to be made that it has . . . even without a written agreement.

This is important in a circumstance where a tenant wishes to end a lease, but the landlord does not. Here, the landlords needs to be extra careful about accepting the apartment keys or behaving in any way that could be considered as a finding that the lease ended.

One way a landlord can avoid this is by explicitly telling the tenant that he or she is not intending to end the lease.

When Only One Party Wants Out of the Lease

Under most leases, a landlord or tenant is not permitted to unilaterally end a lease. A few, limited exceptions exist, such as for tenants serving in the military or who are victims of domestic abuse. Otherwise, ending a lease early cannot be done alone by a landlord or tenant.

If a tenant does break a lease, a landlord (in the right circumstances) can pursue a claim for damages against the tenant. Before doing so, however, a landlord should consider speaking to an attorney.

Final Thoughts

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

3 Mistakes to Avoid When Preparing a Notice to Quit

Preparing a notice to quit is a requirement for nearly every Massachusetts eviction. This notice informs the tenant of the reason for the eviction and provides them a time period in which their tenancy is terminated.

A mistake in one of these notices, however, can be fatal to an eviction case, and lead to unnecessary delay.

Here, I’ll discuss three common mistakes made when preparing a notice to quit.

#1: Using the Improper Notice to Quit for The Tenancy

The proper notice to quit depends on the type of tenancy. Generally, a fourteen-day notice to quit is required for evictions based upon non-payment of rent, and a thirty-day notice is required for a no-fault eviction for a tenancy at will (commonly known as a month-to-month tenancy).

Landlords need to be careful that they are using the correct notice to quit for their eviction, as the wrong notice will likely lead to the eviction’s dismissal.

Landlords also need to be careful when using templates for these notices. Often, there are many free notices to quit on the Internet that are not intended for a Massachusetts eviction.

#2: Stating Inconsistent Reasons for the Eviction

A notice to quit must be consistent. Including inconsistent reasons for the eviction can also be grounds for dismissing the eviction case.

#3: Not Using a Sheriff or Constable to Serve the Notice

In an eviction, the landlord bears the burden of proving that the tenant received the notice to quit. Simply taping the notice to quit to the tenant’s apartment or mailing it to the tenant can be problematic, if the tenant denies receipt.

A much better option is to use a constable or sheriff to serve the notice. By law, such service creates a presumption that the tenant received the notice to quit. The tenant can try and argue otherwise, but will have a much harder argument to make if there is proof of service from a constable or sheriff.

Final Thoughts

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

Non-Payment of Rent During Coronavirus

Non-payment of rent is an important issue for landlords, especially during the coronavirus pandemic and eviction moratorium. Here, I’ll discuss what landlords should do regarding tenants who owe them rent.

Non-Payment of Rent: What Landlords Cannot Do During the Eviction Moratorium

With the exception of evictions for emergency matters, landlords cannot evict tenants. This includes the sending of notices to quit and the filing of eviction cases. Doing so can get landlords into trouble.

Non-payment of rent is not considered emergency grounds for evicting. If a landlord is not receiving rent from their tenant, unfortunately, not much can be done now to remedy the situation.

Non-Payment of Rent: What Landlords Can (And Should) Do During the Eviction Moratorium

While landlords cannot evict now for unpaid rent, landlords can (and should) notify their tenants about unpaid rent. Massachusetts has recently issued a regulation on this matter, and explains the reason for doing so:

In order to minimize the risk that a tenant will face eviction for an accumulated non-payment of rent once the Act expires, and to promote the prompt resolution of such situations without resorting to the court system, landlords should provide tenants of residential dwelling units a written notice of each missed rent payment.

This regulation, notably, states that landlords should do this. As such, it is a good practice for landlords to send these notices. This regulation includes language that should be included in these notices, including a disclaimer that the notice is not requiring the tenant to leave the apartment (very important).

Final Thoughts

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