Housing Discrimination in Massachusetts: A “Ruff” Lesson On This Important Area of Law

A recent case from Western Massachusetts of a landlord refusing to rent to tenants with service animals is an example of the perils of ignoring state and federal housing discrimination laws, and a reason why landlords need to be extremely careful when advertising rental units.  Discriminating against tenants with service animals will put landlords in the doghouse (pun intended!).

Housing Discrimination 101

Both state and federal law prohibits discrimination in housing.  This includes, but is not limited to: race, national origin, sex, and disability status.  The list of these protected categories is long, and it is best to check on this by reviewing the state and federal government websites on fair housing laws, which do a good job of explaining the basics about housing discrimination.  Simply put, a landlord is not allowed to deny a tenant housing based on one of these protected categories.

In this case, the landlord advertised that it would not accept pets or service animals.  While a restriction on pets is generally okay (and common) for rental units, the latter is a big no-no: a blanket restriction on service animals is discrimination on the basis of disability.

Practical Implications

Although the landlord in this story was likely fine in not allowing tenants with pets, it was not lawful to outright prohibit service animals.  If a tenant with a service animal wished to apply for a rental unit, the landlord would have to consider them for a reasonable accommodation.  If the landlord fails to properly consider this request, this is housing discrimination.

The increased use of service dogs promises that this will be an issue for years to come.  While every situation is different, I would imagine that most landlords will have difficulty making a case that a service dog is not a reasonable accommodation.  Landlords who fail to take this issue seriously set themselves up for severe damages and penalties.

In this case, the penalty against the landlord was likely not as bad as it could have been.  It is not unheard of for housing discrimination cases in Massachusetts to result in steep damages for landlords.

Conclusion 

If you need assistance with a housing discrimination matter, contact me for a consultation.

Help for Landlords With Bad Tenants in Massachusetts

Landlords with bad tenants are often in need of immediate resolutions to their problems.  While a landlord must bring an eviction case against a tenant to get a tenant out of a rental unit, a landlord has other options for dealing with a bad tenant prior to the conclusion of an eviction case.  A “bad tenant” is one I define as someone who is (a) not paying rent or (2) damaging the rental premise.

Rent Escrow

One of the most common reasons for evicting a tenant is non-payment of rent.  Although an eviction case is intended to proceed quickly, many times, the final resolution of these cases can be delayed due to the trial court’s schedule or a tenant’s request for a jury trial.

In such a scenario, where the trial date is not imminent, a landlord can (and should) request that the court order the tenant to escrow rent as the court case proceeds.  The rationale is straightforward: if the tenant is living at the rental unit, it is reasonable for them to pay something as the eviction case proceeds.

The law on rent escrow is divided, and requires a convincing argument to obtain this relief.  Simply arguing for a rent escrow, without citing the proper authority, will likely not be enough to convince a court on this point.

Injunctive Relief 

Another important tool for landlords with bad tenants is seeking injunctive relief.  Injunctive relief is a court order requiring or preventing a party from doing something.  For example, if a tenant is purposely damaging a rental unit, a landlord is permitted to ask for an injunction prohibiting the tenant from doing so.  A tenant who disregards such a court order can be subject to contempt of court and other harsh penalties.

No Self-Help

An important reminder for landlords with bad tenants.  A landlord cannot, under any circumstances, use “self-help” methods to evict or punish a tenant.  Changing an apartment’s locks or shutting off the utilities is highly illegal in Massachusetts and can result not only in large penalties from the court, but criminal punishment as well.

Don’t take this chance!  Contact an experienced landlord/tenant attorney when dealing with bad tenants.

Service of an Eviction Case

reversing-a-foreclosure

Service of an eviction case is a requirement for starting any eviction against a tenant.  The law requires that the tenants have proper notice that such a case has been brought against them.  A landlord’s failure to comply with these service requirements can be fatal to one’s case.

Service of an Eviction Case

An eviction generally requires serving two types of documents to a tenant: a notice to quit, informing the tenant that their tenancy is being terminated, and a summons,  informing the tenant that an eviction case is occurring in court against them.

Service of an eviction is needed to put a tenant on fair notice that the landlord is attempting to obtain possession of the rental unit.  Simply calling or emailing the tenant is not sufficient; the law requires (like any other lawsuit) that the tenant have formal notice of the eviction.

Contrary to popular belief, a landlord does not need to serve a notice to quit by constable or sheriff.  However, the landlord bears the burden of proving that the tenant received this notice.  If the landlord is unable to do so, the court will dismiss the eviction.  For this reason, most landlords (smartly) serve notices to quit through a constable or sheriff.  Under the law, such service creates a presumption that the tenant received the notice.  Absent a compelling argument to the contrary, proof of service by a constable or sheriff establishes that the tenant received the notice to quit.

A summons, which is a formal court notice stating that an eviction case will begin, must be served by a sheriff.  A constable, who is a private officer, is also permitted to serve most eviction cases.  This formal service is a mandatory requirement, unless the tenant elects to waiver service.  Failure to properly serve an eviction case will likely result in its immediate dismissal by the court.

Conclusion

Service of an eviction is a critical part of a Massachusetts landlord-tenant case.  Failure to comply with these requirements can add unnecessary time and expense onto one of these cases, and make the process far more difficult than it needs to be.  For this reason, consider hiring an experienced landlord-tenant attorney to assist with one of these matters.

 

Who Can File An Eviction in Massachusetts?

foreclosure appeal

The Supreme Judicial Court issued an important decision this week for landlord-tenant law: who can file an eviction in Massachusetts?  The decision, Rental Property Management Services v. Hatcher, is included below.

Overview

The facts of this case are fairly straightforward.  A property manager (a person hired to maintain rental property) filed an eviction (“summary process”) case against a tenant in Housing Court.  This property manager brought this case in the name of “Property Management Services” (his business), which was not the owner of the subject property, nor the lessor.  This property manager personally signed the eviction summons.

Who Can File An Eviction in Massachusetts?

This case presented two main questions for the Supreme Judicial Court.  First, could this property management service bring this eviction case against the tenant?  Second, could the property manager (who was not a lawyer) sign the eviction summons?

The Court held that only an owner or lessor of rental property is entitled to bring an eviction case against a tenant.  Here, while the property management company may have been responsible for maintaining the property, it was not the right party to bring this eviction.

It is not uncommon in Massachusetts for property management companies to directly enter into leases with tenants.  Here, if this property management company had a lease or written agreement with the tenant, I suspect the outcome may have been different.  However, where this company was neither the owner nor lessor, it was not entitled to proceed with this eviction.

The Court then addressed whether the property manager was permitted to sign the eviction paperwork.  Because this manager was not an attorney, the Court held that he was not permitted to do so, and had engaged in the unauthorized practice of law.

Lessons for Massachusetts Landlords

This case has an important lesson for Massachusetts landlords: proceed with caution when filing an eviction in Massachusetts.  While I highly recommend that landlords use property management services if they need assistance in maintaining their rental units, these services cannot substitute as lawyers.

The Court declined to find that doing so was an unfair and deceptive business practice against the tenant (a claim that could allow for monetary damages and attorney fees).  Hatcher is clear, however, that a Court can punish a party who knowingly disobeys these eviction requirements.

Conclusion

If you are confused about who can file an eviction in Massachusetts, take away this critical advice: hire an experienced landlord-tenant attorney for your eviction.  Aside from avoiding some of the problems stated above, an experienced attorney will help you navigate this tricky area of law and reach an effective resolution to your dispute.  If you are in need of such assistance, contact me for a consultation.

12373

Landlord Not Returning a Security Deposit in Massachusetts

reversing-a-foreclosure

A landlord not returning a security deposit is one of the most common complaints that comes up between tenants and landlords in Massachusetts.  Massachusetts law heavily regulates the handling of security deposits, and this law can be used when a landlord improperly refuses to return a security deposit.

Massachusetts’s Security Deposit Law

A quick skim of Massachusetts’s security deposit law shows the complexity of this law.  G.L. 186 Section 15B regulates every aspect of a security deposit, from the acceptance of the deposit up to its return to the tenant.  The extensive requirements of this law is one reason why I advise Massachusetts landlords to never accept a security deposit.

Penalties for not complying with this law can be steep.  Some violations entitle the tenant to the immediate return of their deposit, and others permit the tenant to obtain triple damages, costs, and attorney fees against a landlord who fails to comply with this law.

What To Do About a Landlord Not Returning a Security Deposit 

If a landlord fails to return your security deposit, contact an experienced landlord/tenant attorney for assistance.  While the security deposit law offers numerous protections for tenants, an experienced attorney is often necessary for determining whether a violation occurred, how to pursue such a claim against the landlord, and the likely damages that can be obtained from such a case.

Landlords can equally benefit from having the assistance of an experienced attorney when handling a security deposit claim.  An attorney can help determine if a violation occurred and whether any possible defenses exists to such a claim.  An attorney can be helpful  in negotiating a settlement and minimizing damages.

A landlord should not wait until a security deposit claim has arisen to seek the assistance of a landlord/tenant attorney.  If you think you may be in violation of this law, or want help in making sure you comply with the law’s detailed requirements, speak to a landlord/tenant attorney right away.

Conclusion 

If you find yourself involved with a security deposit matter, contact me for a consultation.  Having an experienced attorney on your side can make all of the difference in getting you the help you need.

Responding to a 93A Demand Letter

Massachusetts has an important law that is of critical importance to Massachusetts landlords: the Consumer Protection Law.  Commonly known as “Chapter 93A” (where this law is located in the Massachusetts statutes), the Consumer Protection Law prohibits “unfair and deceptive business practices.”  This, as one can tell, is broad language that can cover an infinite number of scenarios.  Courts have construed the reach of Chapter 93A broadly, to include many potential claims that are not otherwise covered by other existing laws.

For a consumer to bring a Consumer Protection Law claim, the claimant must generally send the business a demand letter prior to filing a lawsuit.  For a landlord, responding to a 93A demand letter is incredibly important.  The failure in responding to a 93A demand letter can come with steep penalties if the matter ends up in court.

I always advise a landlord (and anyone else who receives such a letter) to hire an attorney when responding to a 93A demand letter.  Even if the demand appears to be without merit, it is worth having a legal professional ensure that you are handling the complaint properly.  Here are a few points that should be considered when responding to a 93A demand letter.

Is the Landlord Covered Under the Consumer Protection Law?

First, is the landlord covered under the Consumer Protection Law?  The general rule is that a person or business who rents residential space for a fee is engaged in business, and would be subject to Chapter 93A.  However, there is an exception if the landlord lives in the subject property, and is merely renting a unit in the building.  Courts have found that in such cases, the landlord is not a business.  An experienced landlord/tenant attorney can help determine this for you, and whether or not you might be subject to Chapter 93A.

Does the Demand Letter Satisfy the Requirements of a 93A Demand Letter? 

The second inquiry when responding to a 93A demand letter is whether the demand letter satisfies the Consumer Protection Law requirements.  Contrary to popular belief, simply calling a demand letter a Chapter 93A demand does not make it compliant with Consumer Protection Law.  Rather, the law has specific requirements on what needs to go into the letter.  The failure to send a proper demand letter can have severe consequences: in some cases, courts have thrown out a Consumer Protection Law lawsuit for not complying with the demand letter requirement.

Responding to a 93A Demand Letter

Regardless of the above, a landlord should always respond to a 93A demand letter.  Even if the claim is meritless, or the landlord is not covered by Chapter 93A, the failure to respond can be disastrous if the matter ends up in court.

In responding to a 93A demand letter, an attorney can help you determine whether to make a reasonable settlement offer.  Because Chapter 93A generally requires a demand letter before starting a lawsuit, the law (and judges who hear these cases) strongly favor resolution of these matters without litigation.  The Consumer Protection Law gives landlords strong incentives for settling these cases out-of-court, and strong penalties if the court believes that the landlord should have resolved the matter without the court’s involvement.

Conclusion 

Responding to a 93A demand letter is important.  If you find yourself in receipt of one of these demand letters, contact an experience attorney for assistance.

 

Guest Blog Post: 2017 Eviction Appeal Recap

1093742

The Massachusetts Landlord Tenant Blog is pleased to have Attorney Joseph N. Schneiderman guest blog on 2017’s major eviction appeal decisions .  Attorney  Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at connlawjoe@gmail.com.

The year 2017 was a busy time in the realm of the law of summary process. Beyond the expansion of the Housing Court, the Supreme Judicial Court and the Appeals Court have heard and issued significant eviction appeal decisions that landlord-tenant and Housing Court practitioners should be familiar with.

Summary Process and Harassment Prevention Orders

First, in C.E.R. v. P.C., 91 Mass. App. Ct. 124 (2017), the Appeals Court emphatically held that harassment prevention orders under G.L. c.258E could not become functional shortcuts or substitutes for summary process. The facts do not flatter the defendants; they were two roommates renting a room from the plaintiff, who was about to sell the home.  Suffice it to say that the roommates engaged in boorish conduct involving sex, drugs, and rock and roll. The situation eventually boiled over to the point of the plaintiff obtaining an ex parte harassment prevention order in the Ipswich District Court. The judge later extended it for one year, effectively forcing the defendants to leave the home.

Although the Appeals Court vacated the orders for insufficient evidence of harassment, the Appeals Court also emphasized that such orders could not be “used as a short-cut for evicted tenants without following summary process procedures.” 91 Mass. App. Ct. at 132. More particularly, the plaintiff repeatedly asserted that she wanted the orders to “induce the defendants to leave without interfering with the rental or sale of the property.”  The police who responded in turn suggested she obtain a lawyer and during the proceedings,  “the defendants had already begun to move out.” The trial judge also hinted that the plaintiff was attempting to avoid summary process-echoing a similar past case.

Practitioners and judges alike should also be aware of how landlords may attempt to employ harassment prevention orders as functional summary process substitutes. Tenant bad behavior should not be condoned. But summary process is the means to redress it-not Chapter 258E. If you have questions, check the dockets in the District Court as defendants have a right to obtain the orders, even though portions of the orders are confidential. G.L. c.258E, §10. If there’s pushback from a Clerk, move for relief from impoundment.

Moreover, evidence that there was no reasonable basis for a harassment prevention order may defeat an Anti-SLAPP (Strategic Litigation Against Public Participation, think a Donald Trump suing a little guy just for the sake of suing him) motion. Compare Van Liew v. Stansfeld, 474 Mass. 31 (2016), citing G.L. c.231, §59H. Even with changes in Anti-SLAPP this year, an unjustified harassment prevention order or Anti-SLAPP order may constitute retaliatory conduct to trigger treble damages under c.186, §14. But those questions are for another day. For now, be mindful of this possibility.

Termination of a Section 8 Lease, Right to a Jury Trial in an Eviction Case

In CMJ Management v. Wilkerson, 91 Mass. App. Ct. 276 (2017), the Appeals Court held that a tenant’s child’s criminal conduct justified termination of a Section 8 lease-but that the same tenant had been unlawfully deprived of her right to a jury trial. The tenant had custody of her fourteen year old grandson, who shot and fired a BB gun that injured two fellow juveniles.  Although no delinquency charges followed, the eviction occurred.

The Appeals Court rejected the tenant’s argument that the juvenile’s conduct did not constitute criminal activity. Admittedly, the juvenile’s conduct violated a statute that only provided for a fine.  However, the lease unambiguously forbade criminal activity by any tenant, member of a tenant’s household and threatened the well being of fellow tenants.  There was no distinction between juveniles and adults in the lease. Thus, termination was proper.

Although the Appeals Court’s analysis is literally correct, Massachusetts law has always treated juveniles charged with crime  as different in kind from adult offenders. Indeed, “as far as practicable [juveniles charged with crimes ] shall be treated, not as criminals, but as children in need of aid, encouragement and guidance.” G.L. c.119, §53.

Practically speaking, Juvenile Court judges have broad flexibility to deal with juveniles facing delinquency charges to further their best interests. The question for more than 100 years has always been: “What shall be done with this child?” not, how do we punish and deter this child?   Indeed, not only was there was no guarantee that a complaint would issue against a juvenile, but if a complaint had issued, the judge could have dismissed the complaint before arraignment-which would mean that no CARI record would exist Compare Commonwealth v. Humberto H.,  a juvenile, 466 Mass. 562 (2013).

To be certain, summary process and delinquency are different proceedings in kind. However, to deprive a juvenile of his housing, housing he very likely has no control over and must rely on an adult to obtain, is a sufficiently adverse collateral consequence that the consequence effectively defies the command not to treat him as a criminal. This is curiously absent from the Appeals Court’s analysis. This issue also underpinned an ultimately unsuccessful application for further appellate review by the Supreme Judicial Court. See Docket No. FAR-25267.

Practitioners who have clients with family members facing delinquency complaints should keep abreast of this issue. This collateral consequence is substantial and potentially irrationally  treats the juvenile as a criminal. Whether or not Section 8 pre-empts G.L. c.119, §53 (or conversely, that applying Section 8 to a child within the ambit of G.L. c.119, §53 violates the 10th Amendment as unconstitutional strongarming) is a thorny and novel issue-for another day. Compare Boston Housing Authority v. Garcia, 449 Mass. 727 (2007).

On the jury trial issue, the Appeals Court held that the judge’s action striking the tenant’s jury claim amounted to disproportionate sanction. The tenant answered by asserting a jury claim but did not file a pre-trial memorandum to press her claim although the Landlord had-and indeed, the Landlord proposed instructions. The tenant  admitted that she did not understand the pre-trial memorandum. The judge replied, “I can’t let you go forward …without a pre-trial memorandum.” 91 Mass. App. Ct. at 281-282.

The Appeals Court held that the tenant’s answer sufficed to timely demand and assert her jury claim. Two factors mitigated against implying that the tenant waived the jury trial. First, Housing Court Standing Order No. 1-04 specifically imbued judges with power to allow tardy motions and other pleadings since many parties were self-represented. Second, Art. 15 of the Massachusetts Declaration of Rights specifically guaranteed a right to a jury trial in eviction trials. 91 Mass. App. Ct. at 284-285, citing New Bedford Housing Authority v. Olan, 435 Mass. 364, 370 (2001).

A judge should therefore approach striking a jury demand cautiously. Although the tenant had notice of the possibility of striking the demand as a  sanction, the judge abused her discretion by striking the demand. Indeed, the tenant attempted to understand the memorandum and striking the demand would not serve as a deterrent sanction.

What’s the take-away? If you represent someone who was self-represented, avail yourself not only of Standing Order 1-04-and Mass. R. Civ. Pro. 15 (to amend or conform pleadings.) Indeed, Rule 15 favors granting amendments-there needs to be prejudice to overcome that presumption. Dockets and court files can be messy-indeed, self-represented litigants may try to litigate by paper deluge. These rules are a powerful solvent for counsel to clean them up. If there’s a question about a jury trial, make sure it’s in the answer-and emphasize that striking a jury demand should be a last resort because of the constitutional and statutory implications. And, cite this case!

Waiver of a Jury Trial in an Eviction Case

Cort v. Majors, 92 Mass. App. Ct. 151 (2017) followed Wilkerson.  The case was a typical summary process case; tenant and landlord were self-represented, tenant stopped paying rent, landlord sought eviction, tenant counterclaimed.  After the landlord’s testimony and during his own testimony, the tenant said, “I’d like a jury.” The judge responded that the tenant waived that right, to the tenant’s surprise. “You didn’t tell me that.” 92 Mass. App. Ct. at 152. The trial concluded in the landlord’s favor.  The question on appeal was whether the tenant had indeed waived his jury trial.

The Appeals Court held that he had not. The Appeals Court recalled that generally, Housing Court trials were bench trials unless constitutionally required. Article 15 of the Massachusetts Declaration of Rights guaranteed a jury trial, Mass. R. Civ. Pro. 38(a) incorporated and implemented that right, and Uniform Summary Process Rule 8 implemented that right in summary process trials. Mass. R. Civ. Pro. 39 in turn only provided for a waiver of a jury trial if there was a written or oral stipulation. Because the tenant demanded a jury trial in his answer, the issue was whether the tenant executed a valid oral stipulation.

The Appeals Court held he had not. Although the tenant answered ready for trial, this response to the judge was not a waiver of his right to a jury trial.  Nor was there any suggestion that the tenant authorized the judge “to decide or knowingly relinquished his right to a jury trial.” Rather, under Rules 38 and 39, if there is a valid jury demand, a judge had a duty to “affirmatively inquire of the parties, before any witness is sworn, whether the case will proceed with or without a jury [this was not…] satisfied by commencing a bench trial and awaiting an objection by a party.”  The Appeals Court recognized that many self-represented litigants appeared in the Housing Court. However, Rules 38 and 39 meant what they said-and a judge could still explain the differences to a party.

The two cases above represent robust reinforcement of the rights to a jury trial. The Appeals Court recognize the competing demands on Housing Court judges to, on the one hand, maintain efficient proceedings but also respect the rights of tenants-who are often self-represented and ill-suited to understand assert them. Only the clearest and most unequivocal conduct will amount to a waiver of the jury trial right. Like in the criminal context, judges must engage with tenants to ensure that they are knowingly and clearly and unambiguously waiving their jury trial rights. The Appeals Court also recognizes that Housing Court judges can carry out this duty easily by discussing and informing tenants of this right.

Damages in an Eviction Case

South Boston Elderly Residences v. Moynahan, 91 Mass. App. Ct. 455 (2017) further elucidates damages in the landlord-tenant context. Moynahan lived in a small (450 square feet) unit that suffered from perpetual moisture and mold problems. Conditions eventually deteriorated to the point of mushrooms growing in the carpeting-the landlord refused to address in light of clutter.

Boston Inspectional Services eventually cited the landlord-who in turn served a notice to quit in October 2011 and refused to cash rent checks. Moynahan returned to the apartment but discovered inadequate ventilation-and a second and third summary process action followed. A three day trial ensued-and the trial judge refused to award any rent abatement damages for moisture or mold before August 2011 or for fall of that year because Moynahan prevented repairs. The judge also found that Moynahan rebutted the presumption of in retaliation due to clutter and sustained non-payment of rent.

Although the Appeals Court sympathized with Moynahan’s plight, ultimately, the code violation relative to moisture and mold were minor and did not cause problems until May 2012. Thus, the findings of fact were not clearly erroneous to warrant damages. 91 Mass. App. Ct. at 462-464.  Moreover, since Moynahan prevented access for repairs and had access to another nearby apartment, he only established lack of access to an adequate unit for three months of five –and the judge did not err in only awarding him one month.

Regarding ventilation damages, the judge erred in so far as he based an abatement award to Moynahan as a proverbial eggshell plaintiff, or easily subject to injury due to the lack of ventilation and lack of access to windows. Rather, since a breach of warranty of habitability supported contract and tort damages, the landlord had to take Moynahan as he found him. Since the judge applied an incorrect legal standard while partially crediting Moynahan’s testimony about breathing conditions, the Appeals Court remanded. 91 Mass. App. Ct. at 465-467.

The Appeals Court however found that the judge’s finding that the landlord overcame the presumption of retaliation by clear and convincing was clearly erroneous. Although the landlord complained about the issue in March 2010, there was no evidence that Moynahan was hoarding or making it worse before the notice to quite in October 2011. Nor did the landlord act to correct it until after Moynahan called in inspectional services. Thus, Moynahan deserved statutory damages of up to three months rent or actual damages.

However, Moynahan had not established damages for c.93A. To be certain, the code violation, in and of itself, violated c.93A. But the landlord had acted to cure the violation and since Moynahan had not presented any evidence of a violation before August 2011, Moynahan had no right to 93A damages. Finally, with regards to quiet enjoyment, although unauthorized entry could amount to a breach of quiet enjoyment, the record simply did not bear it out as unreasonable-there was only incident where Moynahan did not desire the landlord’s entry but sought it for another day-which was to address repairs.

There are many possible takeaways from this case. First, a breach of the warranty of habitability should not simply be based on market or contractual damages-it should stem from actual damages a tenant suffers. Moreover, controverting retaliation cannot occur in a vacuum. The landlord must put forth real and specific evidence that the eviction was completely independent of the complaints about conditions. This dovetails with the heightened burden of proof.

This case though stands in marked contrast to the Leisure Woods case holding that c.93A damages are available for per se violations of the regulations governing manufactured housing. Although regulatory violations do constitute c.93A violations, the tenant still has to prove that the violation is continuing-which the landlord can mitigate. Like Leisure Woods however, this case creates the potential for mischief: viz. a lack of incentive for landlords to cure damages by undervaluing damages. Hopefully, the Supreme Judicial Court or the Legislature will cure or clarify this confusion.

Lurking in the background of this case are questions of hoarding.  This case does not squarely present or involve the question of how a landlord’s response to hoarding may or may not mitigate tenant damages. The factual record of this case is also unclear at best as to whether or not the tenant was indeed a hoarder due to the cramped conditions in the apartment. But, that discreet legal question will have to wait for another day.

Trespass in an Eviction Case

Finally, in Federal National Mortgage v. Gordon, 91 Mass. App. Ct. 527 (2017), the Appeals Court recognized on the one hand that the Housing Court could hear a common law trespass claim. However, the Appeals Court reaffirmed that a post-foreclosure could not bring a trespass action, especially if the holdover tenants claimed leasehold rights after foreclosure.  The defendant tenants had a mortgage that they fell behind on. Following a foreclosure and during a summary process action, the tenants apparently executed a lease and one tenant moved out. The trespass action followed.

The Appeals Court recalled that the scope of the subject matter jurisdiction of the Housing Court was a classically thorny issue. On the one hand, the Housing Court was a court of limited jurisdiction but could also hear matters, including tort or contract actions, related directly or indirectly to the health, safety and welfare of any occupant or place used for human habitation. 91 Mass. App. Ct. at 531-532, citing G.L. c.185C, §3.  The presence of trespassers “will, in many cases, affect the health, safety and welfare of an owner or occupant” and thus was a tort action relating to health, safety and welfare. The Housing Court thus had subject matter jurisdiction.

However,  the action for was trespass was impermissible. The Appeals Court recalled that G.L. c.184, §18 proscribed any attempt to recover land except pursuant to summary process or any other proceeding authorized by law. For twenty-five years, the Supreme Judicial Court held that a foreclosure sale was not a “proceeding authorized by law” as the purchasers entered lawfully and were holdover tenants. Indeed, the tenants had no duty to inquire about the landlord’s status-and had not forcibly entered. Finally, there was no evidence in the record that the bank had constructive possession-any lapse between one tenant and the other tenant was too brief to indicate a possessory surrender-the record indicated otherwise.

This case reaffirms that summary process essentially occupies the field in post-foreclosure matters. To proceed on a trespass action, the bank has to overcome the command of Section 18 and show a forcible entry. A person’s mere presence is not enough-nor can they be imputed with knowledge that a bank does or does not own property. Only a true squatter or someone else who otherwise has no interest qualifies.

The case also represents another case in the long line delineating the subject matter jurisdiction of the Housing Court. Trespass certainly does, as the Appeals Court held, implicate the health, safety, and welfare of human occupants. The trickier issue will be how that plays out in a particular case in the Housing Court-and whether or not Housing Court dockets will see more actions.

Conclusion 

These eviction appeal decisions show that this area of law continues to be changing, and practitioners need to be aware of these recent decisions.  The benefits of having an experienced appellate attorney for an eviction appeal cannot be overstated.

Advice for Moving in Boston

Advice for Moving

As hard as it is to believe, summer is about to end, meaning that Boston’s unofficial “moving day” is about to begin.  With dozens of college and graduate students, young professionals, and other renters in the Boston area, the beginning of September is the busiest time of the year for moving.  If you are one of the many who will be moving this week, here is some advice for moving.  While this is aimed for those in Boston, this advice generally pertains to any landlord or tenant in Massachusetts.

Get Everything in Writing and Save Copies For Yourself

Arguably the most important advice for moving is to get everything in writing, and keep copies for yourself.  If you’re signing a lease, giving or accepting first and last month’s rent, or otherwise agreeing to an particular term of your tenancy, you want this in writing.  Just as important, be sure you keep copies for yourself.

Take Photos of An Apartment When Moving In and Out

If you are moving in or out of an apartment, take advantage of your smartphone’s camera and take pictures of your unit.  Disputes over the condition of a rental unit can easily be resolved if the tenant or landlord has photographic evidence of the apartment.  Even if you are certain that no problems will arise, take five minutes and do this simple step.  Even better, ask a friend or family member to come with you to the apartment, so you have a witness if such a problem does come up.  This is a simple piece of advice for moving that can make all the difference later on.

Know What to Do About Poor Conditions in a Rental Unit 

Another important piece of advice for moving is to know what to do if your apartment is not in the condition it is suppose to be.  In such a case, you should immediately contact the landlord, report the problem (in writing), and give the landlord an opportunity to correct the defects.  If the landlord fails to take care of it, you can file a complaint with the City of Boston Inspectional Services (if you are renting outside of Boston, contact your town or city government for the appropriate agency to file a complaint).

It is important to know that a landlord cannot retaliate against a tenant for filing such a complaint.  In other words, the landlord cannot “punish” a tenant by evicting them or changing the terms of their tenancy.

For landlords, be certain to address complaints in an apartment promptly.  Failure to do so can lead to larger problems down the road.

Be Aware of Massachusetts’s Security Deposit Law

Massachusetts has one of the strictest security deposit laws in the country.  This law is so long and detailed that most do not understand all of its provisions, and many landlords fail to comply with it.  For this reason, I advise that landlords do not accept a security deposit.  If you are a landlord and have accepted a security deposit, consider speaking to a landlord-tenant attorney to ensure you are in compliance with this law.

For tenants, problems with security deposits often arise when tenants attempt to get their deposits back.  If you are having such a problem, an attorney may be able to help.  Massachusetts’s security deposit law provides for attorney fees and treble damages against landlords who do not follow this law.

Don’t Get “Storrowed”

In addition to always having traffic, Storrow Drive is known for being a “trap for the unwary” on moving day.  Trucks are not allowed on this parkway, and each year, at least one renter makes the news for getting stuck under one of Storrow Drive’s many bridges.  Don’t let this be you.

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

Help With A Security Deposit

Help With A Security Deposit

Both tenants and landlords can benefit from help with a security deposit.  Massachusetts’s security deposit law is not light reading, and often requires even the most experienced landlord-tenant attorney to review the law more than once to understand its many, many provisions.  An experienced attorney can often provide invaluable help with a security deposit matter.

Landlords Who Have Accepted A Security Deposit From a Tenant

I, along with many other attorneys (as well as a former Housing Court judge) recommend that landlords do not take a security deposit from a tenant.  The law has too many requirements for a landlord to comply with, and the risks of violating the law are steep, which can include treble damages, attorney fees, and costs.

For landlords, help with a security deposit often involves determining whether a landlord complied with the law’s detailed requirements.  If a landlord has erred in holding one of these deposits, an attorney can often help assist a landlord in avoiding or minimizing the damages that can arise from violating this law.

If you’re a landlord, don’t make the assumption that you need to wait until a problem arises to get help with a security deposit.  A consultation with a landlord-tenant attorney can often help determine if you have violated any part of the law, and determine the best way to avoid a larger problem down the road.

Tenants Who Cannot Get Their Security Deposits Back

For tenants, help with a security deposit often involves legal action against a landlord for failing to properly return a deposit.  Massachusetts’s security deposit law explicitly provides for attorney fees in such cases: the purpose being to give tenants incentives for pursuing these claims.  A landlord-tenant attorney can help you determine if you have grounds for pursuing a security deposit claim and the best court for pursuing such a matter.

Conclusion 

I provide assistance to both landlords and tenants with security deposit matters.  My experience in representing both types of clients provides me a unique perspective on this area of law.  If you find yourself in need of help with a security deposit matter, contact me for a consultation.

 

 

Top Five Landlord Mistakes

Landlord Mistakes

In this blog post, I want to discuss the top five landlord mistakes made by those renting residential property in Massachusetts.   Massachusetts has numerous laws protecting tenants, and a landlord’s failure to comply with these regulations can cause major problems down the road.  Fortunately, these landlord mistakes are easily avoidable.

 1.  Accepting a Security Deposit From a Tenant

Few things get a landlord into more trouble than Massachusetts’s security deposit law.  Take a minute (or several!), attempt to figure out all of this law’s requirements, and you’ll learn quickly why the law is a disaster waiting to happen.  Few landlords comply with all of the law’s detailed requirements, and the failure to do so can result in treble damages, attorney fees, and costs.  The risks for landlords just aren’t worth it.

As I have suggested before, a landlord who wants a security deposit should make this part of their monthly rent.  For example, if a landlord wants a $1,200 security deposit, they should add (or set aside) $100 each month, rather than requesting it upfront from the tenant.  This keeps a landlord from having to comply with the security deposit requirements.  Moreover, unlike a security deposit, this money belongs to the landlord if no repairs need to be done at the end of the tenancy.

2.  Not Choosing Tenants Carefully 

Another common landlord mistake is not choosing tenants carefully.  A bad tenant can cause enormous problems to landlords.  Evictions can be long and expensive, and collecting a judgment against a tenant can be difficult.  Try to avoid these problems in the first place by selecting  reputable tenants.

3.  Not Using a Written Rental Agreement 

Landlords should always use a written rental agreement with tenants, regardless of whether it is a a month-to-month agreement or lease.  A written agreement lays out all of the expectations of the landlord and tenant, and can avoid problems from coming up later on.  Moreover, if a landlord expects a tenant to pay for any of the apartment’s utilities, a written agreement is a requirement under the state sanitary code.

4.  Failing to Maintain Rental Property

If you own rental property, the law requires you to maintain it.  Massachusetts’s state sanitary code contains detailed regulations for rental property, and many towns and cities have their own requirements for rental property as well.  A tenant must generally provide notice, and a reasonable opportunity to the landlord to address the problem, before the landlord can become liable for not maintaining the property, but a landlord should avoid these problems in the first place by keeping on top of a rental property’s maintenance and care.

5.  Attempting an Eviction Without An Attorney 

If a landlord needs to get rid of a tenant, an eviction is required.  A landlord should never try and do an eviction on their own.  While it may be tempting to try and avoid the costs of an eviction, the consequences of making a mistake in one of these cases can be far more expensive down the line.  Moreover, an experienced landlord attorney can often help finds ways to make the eviction process go as quickly as possible.

If you find yourself in need of legal assistance, contact me for a consultation.