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 These are rental payments that are escrowed while the case goes forward: the money sits in a bank account, and is not withdrawn until the case is resolved.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.

Five Things That All Massachusetts Landlords Need to Know

Being a Massachusetts landlord isn’t easy.   There are many, many cases of landlords who have run afoul of the state’s numerous laws regulating landlord conduct; most of which favor the tenant.  Here are five things that  every Massachusetts landlord needs to know.

1. A Landlord is Responsible for Maintaining Rental Property

While this may be obvious to most landlords, it is worth a mention here.  A landlord is responsible for maintaining their rental property, including compliance with the state’s sanitary code.

This is in contrast to commercial real estate, where a landlord is permitted to offer a property “as is.”  Doing this is strictly prohibited for residential property; even if a landlord and tenant signed an agreement that excused a landlord from taking care of a rental property, it would be void and unenforceable at law.

2. Fair Housing Laws Exist  (And Are Enforced)

Both federal and Massachusetts law ban housing discrimination.  Housing discrimination laws are enforced, and come with steep penalties for landlords who violate these provisions.  A Massachusetts landlord needs to know these laws and be aware of the kind of conduct that violates these regulations.  

3. Security Deposits Are Heavily Regulated in Massachusetts

Massachusetts’s security deposit law is among the most complex and confusing laws in the state, filled with traps for the unwary.   Few Massachusetts landlords fully comply with its provisions, and failure to do so can result in treble damages, attorney fees, and costs against a landlord.  Massachusetts landlords should strongly consider not taking a security deposit.  If they do, it is essential that they learn and abide by this law’s detailed requirements. 

4. Good Tenants Are a Good Investment 

What’s the best way to avoid problems with tenants?  Choose good tenants.  The extra time and expense in picking good candidates for rental units are worth its expense, many, many times over. 

5. Evictions Are Costly

Massachusetts law permits a landlord to bring an eviction against a tenant for outstanding rent, and a civil action for damage to a rental unit.  However, even under the best case scenario, it is rare for a landlord to be made completely whole through an eviction proceeding or lawsuit.  The expenses of bringing such a case, and the difficulties of enforcing one of these judgments, are factors that every Massachusetts landlord needs to know.

Conclusion

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

Getting Possession of a Rental Unit

Getting possession of a rental unit is the primary goal of an eviction case.  A successful eviction case allows a landlord to legally remove the tenant and their possessions from the rental unit.  The formal court order that allows the landlord to do so is known as an execution, and the process of using this court order for getting possession of a rental unit is commonly referred to as levying the execution.

Evictions 101

Eviction (known in Massachusetts as “summary process” cases) is the required, legal proceeding for obtaining possession of property.  Massachusetts (like nearly all states) is a judicial eviction state: one must bring a formal court proceeding to remove a tenant.  Attempting to remove a tenant without a court order, commonly known as a “self help” eviction, is a serious offense.

If the landlord wins the eviction case, or reaches an agreement for the tenant to move, the court will issue an execution for possession.  This is the court order that permits a landlord to physically remove a tenant and their possessions from the rental unit.

Levying the Execution 

 The actual process of getting possession of a rental unit is commonly known as levying the execution.  The tenant must be given 48 hours notice prior to the move out, and service of this notice must be made by a constable or sheriff.  Levying an execution requires the landlord to pay for the moving and storage expenses.  Needless to say, these expenses can add up.

Stay of Execution

A tenant is permitted to request a stay of execution if they believe they need more time to find a new place to live.  The law is written to apply only for tenants involved in a “no-fault” eviction case, where the tenant is not behind on their rent or in violation of a term of their tenancy.  Courts, however, commonly consider stays of execution for all types of tenancies, on the theory that courts have inherent power to manage the eviction process.

Conclusion

Getting possession of a rental unit is not an easy process, and if done incorrectly, can result in enormous costs and expenses that could otherwise be avoided.  For this reason, speak to an experienced landlord-tenant attorney for assistance with such a matter.

Sherwin Law Firm Wins Foreclosure Appeal

foreclosure appeal

I’m pleased to announce that I, along with appellate attorney Joseph Schneiderman, won a foreclosure appeal this week in the Massachusetts Appeals Court.  The case, Nationstar v. Culhane (included below) concerns an important topic for appealing an eviction (“summary process”) case in Massachusetts: the importance of timely filing a notice of appeal.

Overview of Case

It would take much, much more than a single blog post to give the background on this case, or even the procedural history of this matter.  Here’s a quick synopsis.  The homeowner went through a foreclosure sale and faced a post-foreclosure eviction case by the foreclosing lender.  In such a case, the homeowner has a right to defend against the eviction by alleging that the foreclosure was not lawful.  Here, my client had a strong defense based on the lender’s failure to comply with paragraph 22 of her mortgage.

Case History

My client won her case at the District Court, where the foreclosing lender filed this eviction case.  Following my client’s win, the foreclosing lender appealed this case to the District Court Appellate Division.  The Appellate Division is a part of the District Court and hears appeals of most civil cases from the District Court.

The Appellate Division reversed the District Court’s decision, and ruled that the foreclosing lender should have won the eviction case.  I then appealed the case to the Massachusetts Appeals Court, which hears appeals decided by the Appellate Division.

Outcome of Foreclosure Appeal

The Appeals Court ruled in my client’s favor based on a critical argument we raised for my client: the foreclosing lender’s failure to timely file this foreclosure appeal.

Massachusetts eviction law has a short deadline for pursuing an eviction appeal: ten days.  As we argued to the court, previous decisions on this law hold that a failure to meet this deadline, for seemingly any reason, are grounds for dismissing the appeal.  Here, the foreclosing lender filed its notice of appeal after the ten-day deadline, which the Appeals Court agreed was grounds for dismissing the appeal.

Conclusion

This case has some really important lessons not just for a foreclosure appeal, but any appeal of an eviction case.  The deadline for such an appeal must be timely filed.  Often, the failure to timely appeal a civil case is not always fatal to one’s case; appeal courts have discretion to allow a untimely appeal for good cause.  Not so with eviction cases.  This case, along with many prior cases on this matter (discussed in the court’s decision below) suggest that there are few grounds for filing an eviction appeal late.

For this reason, I always recommend that lawyers and parties representing themselves in an eviction appeal err on the side of caution when preserving a right to appeal.   File the notice of appeal as soon as possible and make sure you have proof that the court and opposing party receive this notice.  Take no chances on this.  I have been known to jump in my car on the last day of the deadline to appeal and make a special trip to court if I have any reason to believe the notice of appeal was not timely received by the court.

This case also demonstrates the importance of working with an experienced appellate attorney on one of these matters.  The arguments in this case were highly technical and required a deep understanding of Massachusetts eviction law and appellate procedure.  If you find yourself involved in a similar foreclosure appeal, contact me to see if I can help.

 

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Overview of Housing Court Expansion

Housing Court Expansion

After years of stalled legislation, housing court expansion has finally occurred in Massachusetts.  The recently passed 2018 budget provides for statewide Housing Court, allowing all towns and cities access to a regional division of the Housing Court.  Previously, a large segment of Massachusetts towns and cities–including Somerville, Medford, and Chelsea–had no access to a Housing Court division.  This Housing Court expansion allows landlords and tenants from any part of the state to have their case heard in Housing Court.

Overview of Housing Court

Massachusetts’s Housing Court can hear cases for matters involving the health, safety, or welfare of the occupants or owners of residential housing.  The most common cases in Housing Court are eviction (“summary process”) matters; the Boston Housing Court reportedly hears over 150 new evictions each week.  Housing Court functions similarly as any other court in Massachusetts, but comes with the benefit of judges, clerks, and staff who are familiar with housing law.

Transfer to Housing Court 

A unique provision of Housing Court is the ability by either party to transfer a case into Housing Court from another court.  If you are a tenant in an eviction case filed in District Court (a popular venue for eviction cases), you have a right to have your case transferred to the appropriate Housing Court division.  With the Housing Court expansion, this option is now available to all of Massachusetts.  A Housing Court transfer is a simple process, requiring the filling out of a simple form with the original court and the appropriate Housing Court division.

Although Housing Court expansion became effective on July 1, 2017 (pursuant to the 2018 budget), this change is not yet reflected on the Housing Court website or in the law itself.   The 2018 budget is clear, however, that Housing Court expansion has already occurred.  Several eviction cases have already been transferred from District Courts in cities that were not previously under Housing Court jurisdiction, and I expect more to do so in the coming months.

 Is Housing Court Right For Your Case?

Housing Court expansion will inevitably lead to tenants and landlords asking whether this court is the place to bring their case.  Like with most legal matters, the answer depends.  While many argue that Housing Court favors tenants at the expense of landlords, this is too much of a stereotype to label for every Housing Court division in Massachusetts.  The decision on whether to pick Housing Court for your case is an important one, which you should make with the assistance of an experienced landlord/tenant attorney.

How Long Does an Eviction Take?

How long does an eviction take in Massachusetts?  Answering that question is like a weatherman stating what the weather is going to be the next day: an expert can give a good prediction, but many unknown factors can make a big difference in the ultimate outcome.

Beginning a Massachusetts Eviction Case

The beginning of a Massachusetts eviction case is an important consideration in determining how long one of these cases will ultimately take.  To start an eviction, a landlord is required to send a notice to quit, which informs the tenant that their tenancy is over.  The timeframe under one of these notices depends on the reason for eviction, and are usually anywhere from seven to thirty days.

Filing An Eviction Case

Following the service of a notice to quit, the landlord must file the eviction case.  Unlike a typical lawsuit, where the lawsuit is filed with the court and then served on the party, in an eviction case, the opposite happens: the eviction case paperwork is served on the tenant first, and then filed with the court.  This notice must be served on the tenant at a minimum, seven days before it is filed with the court (and not more than thirty days).

Discovery, Trial

The next factor in determining how long an eviction takes is whether the tenant(s) request discovery and a jury trial.

Discovery is the right of a party to learn information from the opposing side, through interrogatories (written questions) and request for documents.  A request for discovery automatically postpones an eviction trial by two weeks.  Depending on the amount of information requested, discovery may take even longer.

A defendant in an eviction case has a right to a jury trial.  Unlike bench trials, which are held before a single judge, a jury trial requires the calling of potential jurors by a court, and usually happens on select days at a court.  As such, a request for a jury trial typically also pushes back an eviction case, depending upon the court’s trial schedule.

Conclusion 

The above are some of the many factors that help answer how long  an eviction in Massachusetts take.  Generally, an uncontested eviction will take between one to two months.  A contested eviction, with requests for discovery and a jury trial, can take anywhere from three to six months.

Having an experienced attorney on your side can make a huge difference in moving one of these cases along, and getting you the results you need.  Contact me for a consultation.

What Happens After a Foreclosure Sale?

Homeowners who have gone through a foreclosure often ask me what happens after a foreclosure sale.  More specifically, these homeowners often ask if they need to leave their home right away after a foreclosure auction sale.  The answer is no.  Even after a foreclosure sale, the new owner is required to perform an eviction of the occupants remaining in the foreclosed property.

Overview of a Massachusetts Foreclosure

Massachusetts is a non-judicial foreclosure state.  This means that a bank does not need to go to court to get permission to foreclose (unlike states like New York and Florida).  A Massachusetts foreclosure requires sending a number of required notices, publishing a foreclosure sale notice, and holding a foreclosure auction.  If done correctly, the bank (or third-party buyer) becomes the record owner of the property.  While ownership of the home changes after a foreclosure sale, possession does not.  The new record owner is required to bring an eviction case against the former homeowner(s) residing in the foreclosed home.

Post-Foreclosure Eviction

What happens after a foreclosure sale?  The bank (or third-party buyer) must file an eviction against any persons who remain in the property.  This eviction, known as a summary process action, is generally filed in a District Court or Housing Court.  In these cases, the homeowner has the opportunity to defend against the new owner’s claim to possession by alleging that the foreclosure was not performed correctly.

An important point to note for homeowners in such a case: you do not need to leave the home until the court orders you to do so.  The new owner must obtain a judgment from the court allowing them possession of the home.  Until this is done, the new owner cannot forced you out of the property under any circumstances.

What Should You Do After a Foreclosure Sale?

If you have gone through a foreclosure of your home, contact a foreclosure defense attorney for a consultation, regardless of your intentions for the home.  In other words, even if you plan to leave the home, it is still worth speaking to an attorney.  An attorney can help determine if you have a defense against the foreclosure.  Even if you plan to leave the home, a foreclosure defense attorney can assist you with resolving any liability you may have against the new owner and possibly get you relocation assistance.

Levying An Execution

Levying an execution in a Massachusetts eviction case is the process by which a landlord, if they are successful in the eviction, is permitted to remove the tenant’s belongings from the rental property.

An execution for possession is a legal document that a court issues if it determines that a landlord is entitled to possession of the rental property.  This occurs if the tenant defaults in the case (does not show up to court) or if the landlord prevails at trial.  Following the court’s judgment, the tenant has ten days to appeal the decision.  If the tenant appeals, the execution will not issue, pending the appeal’s resolution.  If the tenant does not appeal, the clerk’s office will issue the execution.

After the execution is issued, the landlord must levy it.  Levying an execution must be done by a Massachusetts sheriff or constable; a landlord cannot remove a tenant’s possessions on their own (doing so will get the landlord into serious trouble).  A sheriff or constable is required to provide the tenant with 48 hours notice prior to levying the execution.  Moreover, the landlord is responsible for making arrangements to store the tenant’s property after the execution has been levied.  Needless to say, the costs of levying an execution can be significant: it is not unusual for this process to cost thousands of dollars.

A tenant facing the levying of an execution has the option of requesting that the court stay the execution.  Under certain circumstances, the court will permit a tenant to stay beyond the time otherwise allowed.

Landlords should always be cognizant of the reality that levying an execution is time consuming and expensive.  Whenever possible, landlords should attempt to work out resolutions with tenants that avoid this burdensome process.

Does An Eviction Show On a Credit Report?

A common question for tenants facing eviction is whether an eviction will show on a credit report.  Tenants, understandably, are concerned about whether such cases will become a public record and be accessible by others.

According to the credit bureaus, the mere filing of an eviction case by a landlord will not, on its own, show on a tenant’s credit report.  This makes sense: the mere filing of an eviction case does not mean that the tenant deserves to be evicted.  If a tenant has a viable defense to an eviction case, the eviction will be unsuccessful.

However, if the landlord does succeed in an eviction case and the tenant owes the landlord money, the landlord can obtain a judgment for this owed amount.  Such a judgment can be reported to the credit bureaus (the same as any owed debt).  A landlord can also obtain a judgment if the tenant fails to show up to the scheduled court hearing; a landlord is permitted to obtain a default judgment, automatically giving the landlord possession of the property and the owed rent.

Although an eviction, on its own, may not show up in a credit report, evictions in Massachusetts are public record.  Court records are available on masscourt.org and eviction cases can be searched a party’s full name.  When an eviction is filed, it automatically becomes a public record and is accessible through this website.  Several tenant screening services are said to search this website and create lists of filed eviction cases, to help landlords learn the rental history of a prospective tenant.

With this in mind, tenants need to be careful in resolving an eviction case with a landlord.  If one of these cases is settled, the tenant should insist that an agreement for judgment or some similar paperwork be filed in the case to note that the matter was resolved amicably.

If you find yourself facing a landlord/tenant problem, contact me for a consultation.

Somerville Eviction Cases

Courtroom

While I take cases all over Massachusetts, I have many landlord and tenant clients in Somerville . . . not surprising because my office is located in Assembly Square and I proudly call Somerville my “business” home.  Somerville is a fantastic city and I’m proud to be a lawyer in this great community.  In this post, I’ll provide an overview of Somerville eviction cases.

Evictions in Somerville, with a few exceptions, must be brought in Somerville District Court.  Somerville, like many cities outside of Boston, are not within the jurisdiction of a housing court, making District Court the main venue for these cases.  Somerville District Court has jurisdiction over eviction cases not just in Somerville, but Medford as well.  Somerville District Court is located in Assembly Square and is within walking distance of the T.  Parking is generally available near the court as well, but plan ahead to give yourself enough time to find a spot.

Somerville eviction cases, like most eviction cases across Massachusetts, are held on Thursdays in Somerville District Court.  Court begins at 9:00AM, with a “first calling” of the cases before the court.  During this initial reading of the cases, the clerk asks if both parties are in court, and what the parties are in court for.  If the parties are in court for a bench trial (where the judge decides the matter, and not a jury), a trial can be held that day.  If the tenant has requested a jury trial, the court usually holds a pre-trial conference to select a trial date.

For both types of cases, mediation is usually an option for both parties.  Mediation allows parties to meet with a trained facilitator to discuss the issues in the cases and see if the matter can be worked out.  Parties should always try mediation (even if they have an attorney): there is nothing to lose, and much to gain if the parties can work out a resolution on their own.

Compared to other courts (especially housing court), Somerville District Court usually doesn’t have a huge caseload of eviction cases.  You should expect a bit of a waiting time in court, but cases are usually heard in the morning.  If your case needs to go to trial, the court may schedule it on a non-Thursday.

If you find yourself involved in a Somerville eviction case, contact me for a consultation.  Landlord/tenant law can be tricky, and it is helpful to have an experienced attorney on your side.