Sherwin Law Firm Wins Landlord-Tenant Jury Trial

landlord-tenant disputes

Fall has been busy for me, but in a good way: I’m pleased to write that I won a landlord-tenant jury trial last week in the Housing Court!  The case has some important implications for those involved in landlord-tenant disputes.

Case Overview

I represented two tenants who had a terrible experience with their prior landlord.  This landlord–who is the owner of many large apartment complexes–routinely failed to address important safety and health complaints in my clients’ apartment.  The most egregious conduct by this landlord was it’s failure to return my clients’ security deposit after they moved out of the apartment.  My clients repeatedly contacted the landlord and requested the deposit’s return, which the landlord continuously ignored. 

My clients, importantly, were never looking to start a lawsuit on this matter–they would have been fine if the landlord simply returned their money.  By refusing to do so, however, the landlord forced this matter into court, resulting in damages that could have easily been avoided in the first place.

Lessons for Landlord-Tenant Disputes

This case has important lessons that landlords and tenants should keep in mind when addressing landlord-tenant disputes.

  1. Keep Good Records:  Keeping good records is critical for any landlord-tenant dispute.  I would guess that over 90% of the problems that landlords run into come from not having proper documentation for their tenancies, such as all efforts that the landlord took to maintain the rental unit.  This, in my opinion, was a critical reason why the jury found in favor of my clients: the landlord had nothing to support its alleged defenses to my clients’ claims. 
  2. Don’t Take a Security DepositMassachusetts’s security deposit law is a disaster waiting to happen for landlords.  Failure to comply with this law can result in steep penalties and expenses to a landlord.  For this reason, landlords are best off not taking a security deposit from a tenant.  In my case, a large portion of the landlord’s liability would have been avoided if they followed this advice.
  3. Be Reasonable About Settling a Landlord-Tenant Dispute:  No one is perfect, and landlords and tenants can easily make a mistake that subjects them to legal liability.  If this is the case, the landlord or tenant should settle sooner than later.  In this case, my clients made a settlement offer that was lower than the amount of money that the jury awarded to them!  If the landlord had taken this offer, they would have saved a lot of time and money.

Conclusion

I couldn’t be happier about the outcome of this case.  For my clients, this case wasn’t simply about money; it was about principle.  As an attorney who represents landlords and tenants, I often believe that Massachusetts law can favor tenants at the expense of landlords.  In this case, I believe that these laws served their intended purpose.

I don’t want to imply that every tenant deserves this outcome, or that every landlord is in the wrong.  I represent many landlords as well, and can attest that the overwhelming majority attempt to do the right thing.  But in this case, I’m pleased that this landlord was held accountable.

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

Breach of a Lease in Massachusetts

Breach of a Lease

This week, I obtained a successful judgment on behalf of several tenants against their landlord for a breach of a lease. This is an important topic for landlords and tenants that I want to discuss here.

What is a Lease?

A lease is a contract for the rental of property. A landlord agrees to allow a tenant to take possession of property for a specific period of time, in exchange for rent. Most residential leases in Massachusetts are for a year, but can be longer.

As stated above, a lease is a contract: a legally binding agreement. Failure to comply with one of the terms of a lease can result in a breach of this agreement, which has legal consequences.

Although a lease is a legally binding agreement, there are certain limitations that a landlord may not include. Massachusetts law prohibits the waiver of many landlord-tenant laws aimed at protecting tenants, such as the security deposit law. This is in contrast to a commercial lease, where landlords have much more flexibility in the rental terms offered to a tenant.

Breach of a Lease by Tenants

The most common type of a breach of a lease by tenants is the failure to pay rent. In such a case, a landlord can pursue an eviction, and seek possession of the rental unit and any owed rent. If the tenant is no longer in possession of the rental unit, the landlord can still seek owed rent through a civil action.

Tenants can also breach a lease by failing to comply with one of the other lease terms, such as keeping the property clean and not making excessive noise. If the breach is severe enough, this can also be grounds for eviction.

Breach of a Lease by Landlords

Landlords, importantly, can also violate a lease. In my recent case, the landlord failed to provide amenities in the apartment that it agreed to do, under a written lease. The Court agreed that the landlord’s failure to do so was a lease violation, and entitled my clients to monetary damages.

This is a critical lesson for landlords: a lease works both ways. Just as a tenant must comply with their end of the bargain, so must a landlord. Failure to do so can result in penalties if brought before a court.

Conclusion

If you need assistance with a breach of a lease, contact me for a consultation.

3 Things To Know About Buying a Home with Existing Tenants

Buying a home with existing tenants has many traps for the unwary. While there are advantages to having existing tenants with the purchase of a home, there are also potential areas of liability. Here are three things to keep in mind when considering such a purchase.

1. Existing Tenancies Do Not End When a Home Is Sold

If a landlord-tenant relationship existed between the tenants and the prior owners of the home, that tenancy continues with the new owner. This is true regardless of whether there was a written lease or a tenancy at will (month-to-month lease agreement). The same terms of the prior tenancy agreement, in almost all cases, will carry over to the new owner of the home.

If a new home owner does not wish to have tenants (or wants new ones), an eviction will be necessary. Any attempt to remove tenants without a formal court case is a huge, huge violation of the law and comes with steep penalties.

If you are buying a home with existing tenants, and do not want to keep these tenants, it is strongly worth considering making the existing owner deliver the property without tenants in it.

2.Proceed With Caution With a Security Deposit

If the prior owner of the home accepted a security deposit from the tenants, you as the new owner are responsible for this deposit (unless the prior owner returned it to the tenants). The law requires the new owner to notify the tenants that they received this deposit and to comply with this law’s detailed provisions on holding a security deposit.

If the prior owner returned the deposit to the tenants, be sure to get this in writing.

As I have written about in the past, Massachusetts’s security deposit law is an incredibly complex law, filled with numerous regulations on the acceptance, holding, and return of a security deposit. New landlords should give careful consideration to not accepting a security deposit in the first place.

3.Landlords Must Maintain Residential Rental Property

Residential rental property comes with an implied warranty of habitability. This means that the property is fit for human habitation. The most common standard for measuring this is through compliance with the state sanitary code, a detailed list of the minimum standards for residential property. Local municipalities, as well as tenants themselves, have the right to enforce these regulations.

Residential rental property is quite different from commercial rental property, which is often rented “as is.” This is not allowed for residential rentals, and any attempt to get a tenant to waive the warranty of habitability will be void.

If you are buying a home with existing tenants, you need to be aware of these obligations. Failure to maintain rental property can lead to enormous liability, expenses, and other costs.

Conclusion

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

Collecting Rent During An Eviction

Massachusetts’s highest court will be issuing a decision in the coming months on an important (and unclear) matter of importance for landlord-tenant law: collecting rent during an eviction. Namely, the court will decide if, during an eviction proceeding, a court can order a tenant to escrow rental payments for the duration of the case.

Information on this case, Davis v. Comerford, can be found here.

Background

The factual background for Davis is common to many Massachusetts eviction cases. Many evictions begin due to a tenant’s non-payment of rent, leaving a landlord without payment as the eviction proceeds. For evictions not involving non-payment of rent, such as a no-fault eviction case, it is not uncommon for tenants to stop paying rent once a case begins.

A common request for landlords in such cases has been to ask for an order that the tenant make use-and-occupancy payments for the duration of the case. These are rental payments that are escrowed while the case goes forward: the money sits in a bank account, and is not withdrawn until the case is resolved. Landlords, of course, want use-and-occupancy payments so there is money available if they win the case.

Trial courts have been generally split on whether they can order rent escrow during an eviction case. Davis is expected to resolve this question.

Legal Arguments For/Against Collecting Rent During An Eviction

The general argument for collecting rent during an eviction is that a tenant should be paying something while the case goes on. Landlords argue that the failure of a court to require such payments will harm landlords, as they won’t have assurance that rent money is available to them at the end of an eviction case.

Opponents of this generally argue that such an order is similar to that of a preliminary injunction; a court order requiring a party to do something prior to the resolution of a case. A preliminary injunction generally requires a showing of “irreparable harm”, such as a loss of property. Loss of money, alone, is generally not enough for a preliminary injunction.

Opponents also argue that there is no Massachusetts law that explicitly requires rent withholding, unlike other states, such as Vermont, which permits this relief.

My Take

I predict that Davis will be decided on a critical (but overlooked) part of this particular eviction case: the tenant’s request for a jury trial. In all Massachusetts eviction cases, a tenant has a right to a jury trial. Choosing this option, almost always, delays an eviction case, as it takes additional time to schedule, select, and seat a jury.

The argument goes that, because a tenant has chosen a jury trial, they should be paying rent for the delay in the case. Without a jury trial, an eviction case usually goes to trial several weeks after it is filed, leading to a much more immediate resolution.

One could argue that a requirement to pay rent as a condition for a jury trial infringes on this sacred right, found in Massachusetts’s constitution. Nonetheless, this appears to be a solid middle ground for this tricky legal question, and I would not be surprised if Davis goes this way.

Conclusion

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

What is a Tenant at Sufferance?

Most people familiar with Massachusetts landlord-tenant law know the two most common types of tenancy agreements: a tenancy by lease, where the parties agree to a fixed term for the length of the tenancy, and a tenancy at will, where either party can end the tenancy with proper notice to the other side. A less commonly known tenancy is a tenancy at sufferance.

What is a Tenant at Sufferance?

A tenant at sufferance is a tenant who “stays past their welcome” and remains in a property without the owner’s permission. This most commonly occurs for tenants who remain in rental property after their leases expire. If the landlord does not give the tenant permission to stay past their lease (and, importantly, does not accept rent from them), the tenant becomes a tenant at sufferance.

What’s the difference between a trespasser and a tenant at sufferance? A tenant at sufferance, importantly, once had the property owner’s permission to stay in the property, but no longer does so. A trespasser, on the other hand, never had the owner’s permission to be in the property.

Practical Implications

Although a tenant at sufferance does not have permission to remain in the rental property, a landlord must still bring a formal eviction case to obtain possession. Unlike evictions for other tenancies, a notice to quit is technically not required. Most courts, however, still prefer that the landlord provide some form of notice to the tenant. A 72 hour notice to quit is most common in these scenarios.

A landlord needs to be careful about accepting money from a tenant if they do not want them to stay in the rental property. Accepting money from a tenant can re-create a formal tenancy between the parties and delay the eviction process. A landlord, however, can accept rental money solely for the purposes of use-and-occupancy, so long as they tell the tenant this in writing before accepting it.

A landlord also needs to continue maintaining rental property for a tenant at sufferance. Even though the tenant is in the rental property past their welcome, Massachusetts law still requires compliance with the state sanitary code.

Conclusion

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

Security Deposit Violations in Massachusetts

Massachusetts heavily regulates security deposits for residential tenancies. The law covers nearly every aspect of the acceptance, holding, and return of a security deposit.

Security deposit violations can occur in many ways. The penalties for not complying with this law can result in a tenant being entitled to the immediate return of their deposit or, in severe cases, treble damages, costs, and attorney fees against the landlord. Here are some common security deposit violations.

Please note that this list is not all of the security deposit requirements; one should always consult the law (or a landlord-tenant lawyer) to ensure compliance with this detailed law.

Proper Receipt

A landlord must give the tenant a receipt indicating, among other things, the amount collected for a security deposit and the name of the person receiving it. This receipt must include the date on which the deposit is received and a description of the rented premises. The landlord (or the landlord’s agent) must sign this receipt.

Separate Bank Account

The landlord must put this security deposit into a separate bank account, located in Massachusetts. Within thirty days of depositing these funds, the landlord must provide the tenant with name and location of this bank and the bank account number.

Timely Return of the Security Deposit

Most security deposit violations occur during the process of returning the security deposit. A landlord may only keep a portion of a security deposit for 1) unpaid rent or water charges 2) unpaid increase in real estate taxes which the tenant is obligated to pay (rare for most residential tenancies) or 3) a reasonable amount necessary to repair any damage to the rental unit, reasonable wear and tear excluded.

Any portion of the security deposit that the landlord is not entitled to keep must be returned to the tenant within thirty days after the end of the tenancy. Failure to do so is one of the most severe violations of the security deposit law, and will likely subject a landlord to the maximum penalties available under the law.

Conclusion

If you need assistance with a security deposit matter, contact me for a consultation.

3 Things Massachusetts Landlords Can Do To Stay Out of Trouble

Being a Massachusetts landlord isn’t easy. Our state has extensive regulations on the landlord-tenant relationship, and many laws in favor of tenants. Here, I want to share three tips for Massachusetts landlords that can help avoid legal problems down the road.

1.Choose Good Tenants

The selection of tenants is one of, if not the most, important part of the landlord-tenant process. Good tenants pay their rent, respect rental property, and are a pleasure to deal with. Bad tenants are just the opposite.

The important reason for choosing good tenants is to avoid the eviction process, at all costs. Evictions in Massachusetts are expensive and often favor the tenant. Rarely do Massachusetts landlords ever come out completely whole at the end of the process. Picking good tenants is the best way to avoid an eviction from happening in the first place.

2.Keep Great Records

As a landlord, you are running a business. You should treat it like that by keeping extensive, detailed records on everything about your rental properties. This includes the lease and other paperwork signed at the start of the tenancy, a ledger of all rent received from your tenants, and any repairs or maintenance you perform on the property.

Massachusetts landlords who keep good records save themselves enormous time, money, and liability if a dispute ever arises with a tenant. For example, if a tenant complains that a landlord never maintained their property, detailed records on a landlord’s maintenance and repairs can quickly refute such a claim.

3.Don’t Take a Security Deposit!

As I’ve written before, Massachusetts’s security deposit law is long, detailed, and nearly impossible to fully comply with. Rarely have I seen Massachusetts landlords follow each provision of this law, and the failure to do so can result in huge penalties.

What’s the best way to avoid this? Don’t take a security deposit in the first place.

Conclusion

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

Massachusetts Security Deposits 101

This Wednesday, I will be moderating a panel at the Boston Bar Association on Massachusetts’s security deposit law. Most people, especially landlords, are often surprised at how something as mundane as a security deposit law can be so complex and confusing.

Those who ignore this law, however, do so at their peril. The law is incredibly detailed and complex, and a trap for the unwary.

Overview of Security Deposits

The Massachusetts security deposit law regulates the receipt, holding, and return of these funds from a tenant. A central theme of this law is that these funds are the tenant’s money. By holding this money from the tenant, a landlord is required to exercise extreme care with all aspects of these funds.

For these reasons, security deposits are risky, given the many requirements of this law and, as discussed below, the penalties for noncompliance.

Security Deposit Violations

Security deposit violations can be severe. Failure to comply with the law can result in treble damages, court costs, and attorney fees. This means that even a small security deposit can result in an enormous judgment against a landlord if the landlord violates this law.

It is a common misconception that every violation of the security deposit law results in triple damages against a landlord. A recent court decision clarified that not all violations result in treble damages. Rather, some violations simply entitle the tenant to the immediate return of the deposit, while others will be grounds for full damages against a landlord.

Conclusion

If you need assistance with a security deposit matter, contact me for a consultation.

A Landlord’s Guide to the Massachusetts State Sanitary Code

A recent, horrific story from Everett is a good reminder of the importance of knowing (and following) the Massachusetts state sanitary code.

This article discusses how two Everett landlords had fifty-nine code violations in their residential apartments, with over nineteen people living in the home. Two firefighters were tragically burned in a fire last summer resulting from these housing conditions. These landlords, most appropriately, are facing criminal charges for their neglect of this building.

What is the Massachusetts State Sanitary Code?

The Massachusetts state sanitary code sets the minimum standards for housing in the Commonwealth of Massachusetts.  The code covers nearly any matter related to residential housing, including cooking and bathroom facilities, required utilities for residential housing, and safety requirements.

Depending on the town or city, there may be additional, local housing requirements as well. The Massachusetts state sanitary code, however, covers all of the state and is the baseline for a landlord’s responsibility for rental housing.

How is the Massachusetts State Sanitary Code Enforced?

Local jurisdictions generally enforce the state sanitary code through a board of health or inspectional services department. The City of Boston’s Inspectional Services Department (“ISD”) is the most well known of these agencies, and is often called upon when a question arises about a Boston landlord’s non-compliance with the code.

If a tenant files a complaint with one of these agencies, the agency will generally send an inspector to the apartment and cite the landlord for any violations of the code. The landlord is then given a deadline for correcting these violations. Failure to do so can result in penalties and, in a case like this article discusses, possible criminal charges.

Tenants, in certain circumstances, can also enforce the state sanitary code on their own. Massachusetts law allows a tenant to file a petition to enforce the code, if the local agency refuses to take action.

Legal Ramifications for Non-Compliance With the State Sanitary Code

In addition to facing penalties from the the town or city, non-compliance with the state sanitary code also comes with legal ramifications. A landlord who fails to comply with the code may be subject to violation of the implied warranty of habitability, covenant of quiet enjoyment, or the Consumer Protection Law. An official citation from one of these agencies can be compelling proof that the landlord has not complied with these laws.

It is a common misconception that any violation of the state sanitary code is grounds for legal action by a tenant. Minor violations of the code are often not enough to constitute a viable cause of action against a landlord. Nonetheless, landlords need to take care in ensuring that they comply with these detailed regulations.

Practical Implications

It is rare for any landlord to be 100% compliant with the code at any given time, given its many, many regulations. A landlord who learns that they are non-compliant with the state sanitary code needs to act quickly in addressing the problem. Doing so avoids a larger problem developing in the future.

Landlords also need to be aware of Massachusetts’s law on retaliation. A landlord cannot “punish” a tenant who makes a code complaint, through raising the rent, starting an eviction, or doing anything else negative against the tenant.

In many towns and cities, landlords can request their own inspection of a rental unit, to determine what is necessary for complying with the code. This is worth considering prior to renting a unit, or when a landlord has a vacancy. Landlords should also always keep good records on all work done on their rental units.

Conclusion

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

Notice to Quit for Massachusetts Evictions

The Supreme Judicial Court issued an important decision this week clarifying the notice to quit requirement for Massachusetts evictions. The decision, Cambridge Street Realty v. Stewart, is included below.

Cambridge Street Realty concerns several legal issues that are of importance to Massachusetts eviction law. Here, I’ll focus on the decision’s discussion of the notice to quit, which is a requirement for nearly all evictions in Massachusetts.

What is a Notice to Quit?

A notice to quit is a legal document informing a tenant that the landlord is terminating their tenancy. This is required for nearly all evictions in Massachusetts and requires the landlord to prove that it served one of these notices to the tenant, prior to starting an eviction. Failure to provide an adequate notice to quit is often grounds for dismissing an eviction case.

The time required in the notice to quit generally depends upon the type of tenancy and the reason for eviction. In Cambridge Street Realty, the tenant was in Section 8 housing, which is federally subsidized and generally has additional, specific requirements for such a notice. Here, the tenant alleged that the notice to quit was defective, but only raised this argument after the eviction case was over.

What Does a Defective Notice Mean For An Eviction Case?

The Court in Cambridge Street Realty needed to determine what impact a defective notice to quit has on an eviction. Here, the tenant argued that a notice to quit is a jurisdictional requirement, meaning that the failure to provide an adequate notice to quit could be raised at any time . . . even after the eviction is over.

The Court rejected this argument. While a notice to quit is a requirement for most evictions, a tenant must adequately raise a defective notice as part of their eviction defense. Failure to do so means that the tenant waived the right to challenge the eviction on these grounds. As such, a tenant is unable to come back to court later and attempt to reverse an eviction, by arguing that the original notice to quit was in error.

Practical Implications

Cambridge Street Realty is an important win for Massachusetts landlords. Making a notice to quit a jurisdictional requirement for evictions would have had precarious implications for landlords. Such an outcome could have conceivably allowed a tenant to void an eviction well after it occurred, leaving possession of a rental apartment in flux.

It would, however, be shortsighted to interpret Cambridge Street Realty as diminishing the notice to quit requirement for Massachusetts evictions. A tenant who does raise the adequacy of a notice to quit in court will be heard on this issue, and will be successful if the landlord provided the tenant with an improper notice. This is one reason, among many, that Massachusetts landlords should consider speaking with a landlord-tenant attorney for assistance with an eviction.

Cambridge-Street-Realty-LLC-v.-Stewart