Emotional Support Animals: What Landlords Need to Know

Emotional Support Animals: What Landlords Need to Know

This Friday, I’ll be doing a webinar on emotional support animals for MassLandlords. This webinar will cover what landlords need to know about emotional support animals, including how to address request from tenants for these animals and ways to avoid liability.

Emotional support animals (“ESAs”) are increasingly becoming common; one report states that registered emotional support animals have increased 1,000% between 2002 and 2012.

This webinar will discuss:

  • The difference between service animals and emotional support animals
  • Common circumstances when issues with ESAs may arise
  • What a landlord should be do when considering a tenant’s request for such an animal
  • What landlords can and can’t do with ESAs
  • Best practices for avoiding liability

The dog above is not a ESA; he’s my dog, Barley. However, the harness we use to walk him sometimes gets him confused as a support animal. This is a great example of why landlords need to be diligent about properly considering ESA requests from tenants.

In my practice as a landlord-tenant attorney, I’m increasingly seeing more cases involving ESAs. The U.S. Department of Housing and Urban Development recently issued a guidance on this topic and noted the rise of discrimination claims on these matters:

As of the date of the issuance of this guidance, [Federal Housing Administration] complaints concerning denial of reasonable accommodations and disability access comprise almost 60% of all [Federal Housing Administration] complaints and those involving requests for reasonable accommodations for assistance animals are significantly increasing. In fact, such complaints are one of the most common types of fair housing complaints that [Housing and Urban Development] receives. In addition, most [Housing and Urban Development] charges of discrimination against a housing provider following a full investigation involve the denial of a reasonable accommodation to a person who has a physical or mental disability that the housing provider cannot readily observe.

For these reasons, this is an important topic for landlord-tenant law, and I hope you can join the webinar.

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

Landlords and Coronavirus

Coronavirus has become a worldwide pandemic, and its effects are being felt here in Massachusetts. If you are like me, your work and personal life have been heavily interrupted by this crisis, which unfortunately, will likely stay this way for a while longer.

Here, I want to share some advice for Massachusetts landlords dealing with coronavirus. Since this outbreak is new, and we are dealing with uncharted territory, this post is subject to change.

Evictions During the Coronavirus Epidemic

Last weekend, Housing Court announced that all evictions are to be postponed until April 21, 2020 or later. While the court is allowing cases to be heard earlier upon a showing of good cause, my bet is that most landlords will unlikely be able to meet this high bar.

This means, in effect, that no evictions will go forward for the next month. For small landlords with non-paying tenants, this will especially be a burden.

This also means that Housing Court will be swamped with cases in Spring/Summer 2020. On a normal week, each Housing Court gets dozens (if not hundreds) of new eviction cases. This one-month postponement will result in a huge backlog of eviction cases for months to come.

Care and Maintenance of Residential Apartments

It is a good idea for Massachusetts landlords to remind their tenants of the importance of preventing coronavirus, namely, through cleaning and disinfection. While it is a safe bet that nearly everyone knows about this pandemic, Massachusetts landlords can avoid potential liability by being on record about notifying their tenants with these precautions.

Housing Discrimination Laws

One potential area of liability that I see arising during coronavirus is housing discrimination. State law (and federal) strictly prohibit housing discrimination on the basis of race and national origin. The ongoing epidemic is perpetrating some horrendous racial stereotypes.

Statements like these are not only untrue, but also potential grounds for discrimination. Even an innocent question such as, “Where are you from?”, can subject a landlord to liability. For these reasons, now more than ever, landlords need to be careful about complying with housing discrimination laws when dealing with existing and potential tenants.

Conclusion

I want to express my deep gratitude for the many health care and public service employees who are working to help combat this epidemic. For information on the latest about coronavirus, visit Massachusetts’s official website.

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

Choosing a Landlord Attorney

Choosing a landlord attorney can be a critical decision for your landlord-tenant dispute. Among the many things to keep in mind is how your attorney will attempt to resolve your case as affordably as possible.

You may be wondering why this blog post includes a picture of a table above. It is not simply because I built it myself (although I am proud of it!). Rather, it demonstrates an important part of my approach when representing all clients, especially landlords.

When I’m not lawyering, I enjoy woodworking. I’ve built a great workshop and have constructed some good pieces of furniture, including the table above. This table is made from a piece of California redwood that my wife and I purchased during our last vacation. With some power tools and a lot of elbow grease, I turned it into a great addition for our home.

Not everything I make is of this quality. Below is a table that I made as a stand for my scroll saw:


It doesn’t have the bells and whistles as my other project for a good reason: it stays in my workshop, and not in my living room. I could have designed it to look like the redwood table above, but I’d rather spend my time and money on other projects.

So, what does this have to do with choosing a landlord attorney?

Not every part of the legal process requires the construction of a perfect piece of furniture. Sometimes, a basic table will do. In other words, although one can spend enormous time and money in a legal proceeding, it isn’t always necessary.

Landlord-tenant disputes can get expensive . . . very quickly. My goal in these cases (and for my other practice areas) is to make sure that I’m spending my client’s money wisely. I’ve seen some attorneys spend an enormous amount of time on matters that could otherwise be avoided. I have also seen attorneys attempt to litigate cases where the end goal just isn’t worth it for their client.

Of course, some expenses can’t be avoided. My workshop table above didn’t need a polyurethane finish, but it certainly required the right fasteners to ensure that it doesn’t fall apart. Having a solid background in landlord-tenant law is the key to knowing what is needed (and what isn’t) in a landlord-tenant dispute.

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

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.