Surveillance of Rental Property in Massachusetts

One of my favorite (and most challenging) parts of practicing real estate law in Massachusetts is the opportunity to address new legal questions. There is no shortage of topics in real estate law, and I enjoy the chance to learn something new every day in my work.

The legality of video surveillance for rental property is a question I’ve gotten from several landlords.

There is no doubt that video surveillance is not allowed in a tenant’s individual apartment. It is also clear that video surveillance can never record audio, as Massachusetts requires two-party consent for any audio recording. But, what about video surveillance of common areas in rental property, such as an entranceway?

Invasion of Privacy

Massachusetts, unlike many other states, explicitly guarantees a right to privacy. The law, G.L. c. 214, § 1B, provides the following:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

This is a broad protection, and allows enforcement through court action. This law is particularly relevant to any possible surveillance of rental property.

Surveillance of Rental Property: Is It Allowed?

From my reading of this law, and how courts have interpreted it, I believe that surveillance of tenants is generally not allowed by landlords, even for common areas of rental property. Even though common areas may be visible to the public, courts have generally extended privacy protections to those areas associated with one’s residence, and not simply the residence itself.

This, of course, is only my take on the law, and there may be exceptions and limited circumstances that justify such surveillance. In general, however, I would advise landlords to avoid all surveillance of rental property.

I note that this analysis is written in regards to residential rental property. Commercial rental property has fewer protections for tenants, and the surveillance of commercial property is a different topic that would require more consideration.

Final Thoughts

My opinion on this topic has changed since I first considered this issue. Initially, I felt that video surveillance of rental common areas was fine, so long as it included no audio recording or surveillance of a tenant’s individual apartment. Upon further review, however, my opinion on this matter has changed: proof that, in law, there are always differences in opinion!

I do think that surveillance may be allowed in some limited cases, and with a tenant’s express permission. For example, if there are legitimate safety concerns, and video surveillance could help protect the tenants, surveillance may be alright. However, absent such limited exceptions, I would advise Massachusetts landlords to proceed with extreme caution in such matters.

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

Eviction Mistakes: Untimely Filing of Court Documents

The Massachusetts Appeals Court issued an important decision this week on eviction mistakes arising from the untimely filing of court documents. The full decision is below.

Evictions 101

Evictions, known in Massachusetts as “summary process” cases, are done to obtain possession of a rental property from tenants. The intended goal of these cases are to be “just, speedy, and inexpensive.”

With this in mind, evictions move at a much faster pace than most other cases. Evictions can end up in trial less than a month after being filed in court.

Eviction Mistakes: Not Timely Filing Court Documents

A critical part of eviction cases are the deadlines for filing documents. Court filings for eviction cases come with strict deadlines, and the failure to meet these deadlines can be fatal to one’s case.

In this case, the defendant wished to appeal an eviction decision, and filed the notice of appeal after the ten-day deadline. Compared to other types of cases, eviction cases come with an incredibly tight deadline, with little room for error if it is missed.

As this decision notes, case law holds that a court has no jurisdiction to hear an eviction appeal if one is filed after this deadline. Although the defendant’s attorney claimed he never received a written notice of the decision, and therefore did not know that the appeal deadline had begun, the Appeals Court nonetheless still dismissed the appeal.

Practical Implications

Years ago, I won an appeal on a nearly similar issue. These decisions emphasize a critical mistake to avoid with evictions: the importance of timely filing court papers. The failure to do so can be highly problematic in such a matter.

Like the Appeals Court, I am very sympathetic to the defendant in this case. Things do get lost in the mail, especially now, which can be a real problem for those involved in an eviction case (or other legal matter).

An important way to avoid this is to keep an eye on the online court docket for an eviction case. This way, if something is lost in the mail, you can still learn of the case status and when a decision is issued.

Conclusion

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

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Sherwin Law Firm Prevails in Consumer Protection Law Cases

Although the COVID-19 pandemic has slowed the judicial process in Massachusetts, cases are still going forward. I’m pleased to write that I obtained two favorable decisions for Consumer Protection Law cases: one in state court and the other in federal court.

I didn’t win these cases . . . yet. Rather, I prevailed against the opposing sides’ attempt to dismiss each matter at the start of the case, for failure to state a claim upon which relief can be granted.

My opposition argued that our lawsuits didn’t have any merit, and should be dismissed at the onset of the case. The courts, however, agreed with me that my clients had viable lawsuits and were entitled to their day in court.

These cases, which concern issues of foreclosure defense, can and will be dismissed by courts if not properly drafted. In both cases, I faced opposition from two excellent attorneys who served their clients well.

What is the Consumer Protection Law?

The Consumer Protection Law, also known as “Chapter 93A”, protects consumers from “unfair and deceptive business practices.” There are several laws that fall under Chapter 93A, but the relevant portion for consumers is Section 9.

Chapter 93A has an incredibly broad reach, and covers nearly every area of law that can impact consumers. While my cases discussed above concern foreclosure, Chapter 93A often comes up in landlord-tenant disputes, debt collection matters, and a myriad of other consumer issues.

“Unfair and deceptive business practices” under this law is purposely broad and can cover an infinite number of violations. Moreover, the Attorney General is permitted to issue regulations that make certain practices automatic violations of Chapter 93A.

Benefits of the Consumer Protection Law

Because the Consumer Protection Law is broad, it can be used for many types of misconduct that are not otherwise violations of the law. Chapter 93A, importantly, also includes equitable powers, which allows a court to do more than just issue monetary damages.

A prevailing party under Chapter 93A, under the right circumstances, is also entitled to attorney fees.

Chapter 93A, importantly, allows courts to impose penalties on parties who refuse to settle cases that should be resolved without a lawsuit. This provides a strong incentive for parties to settle cases on their own.

Conclusion

Preparing a Chapter 93A case needs to be done properly. Even before a lawsuit is file, a claimant (in most cases) needs to serve a demand letter to the opposing party, in an attempt to resolve the dispute prior to court. Once a case is filed, a claimant must be sure to make a strong case that the other side violated this law.

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

Landlord-Tenant Screening in Massachusetts

An important tool exists for landlord-tenant screening, one that is completely free and easy to use.  All of Massachusetts’s trial court dockets are online, providing both tenants and landlords with the ability to see filed eviction cases across the state.  The website is http://www.masscourts.org.

Eviction (“summary process”) cases are almost always filed in District Court or Housing Court.  To use masscourts.org for landlord-tenant screening, you need to search individually for each court.  The site doesn’t allow a general search for all trial courts across the state.  

However, if you know where the tenant or landlord has resided or owner property (or have a reasonably good idea), you can narrow down the applicable courts.  Bear in mind that searches on the site can be sensitive, and slight variations in names may not produce the desired results (the website is not Google!).

Search results will tell you if a case has been brought by or against a particular party, and a history of the case.  Search results generally will not provide details on the case, such as the reason(s) for evictions and counterclaims.  Information such as this can generally only be obtained by visiting the court and reviewing the case file.

For this reason, masscourts.org isn’t perfect for landlord-tenant screening.  However, it is useful for determining if a particular tenant has been frequently evicted, or if a landlord has often been subject to complaints from tenants.

An important word of caution, from someone who represents landlords and tenants: don’t assume the worst because a party has been involved in an eviction case.  Tenants are sometimes named in eviction cases for no-fault reasons, such as the adult children of parents who are being evicted.  Likewise, claims can be raised against a landlord that aren’t really meritorious, and are only meant to be a “delay” tactic.  In short, while masscourts.org is helpful for landlord-tenant screening, it should never be the only deciding factor in selecting a tenant or landlord.

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

Sherwin Law Firm Wins Landlord-Tenant Jury Trial

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.

Chapter 93A for Landlords and Tenants

The Appeals Court issued an important decision this week about the Consumer Protection Law (commonly known as “Chapter 93A”, in reference to its location in the state law) and its potential application for landlords and tenants.  The decision, Exhibit Source, Inc. v. Wells Avenue Business Center, is included below.

This decision concerns a dispute involving a commercial landlord-tenant relationship.  Nonetheless, this case has important lessons in the context of Chapter 93A for landlords and tenants with residential tenancies.

Overview of Chapter 93A

Chapter 93A prohibits “unfair or deceptive” business practices.  There are two main parts of this law: Section 9, for unfair or deceptive practices between consumers and businesses, and Section 11,  for unfair or deceptive practices between businesses.  While the concept of the law is generally the same for both sections, the requirements for each are slightly different.  Here, I’ll be focusing on Section 9.

“Unfair or deceptive” business practices is purposely intended to be broad, and allows for a wide array of potential applications.  Chapter 93A allows for monetary damages for violation of this law, and possible treble damages if the conduct was willful or knowing.  The law, importantly, allows for attorney fees as well.

For a consumer to bring a Chapter 93A case, they must send the business a demand letter first and allow them thirty days to respond, before filing suit.  This letter is not required if the consumer is bringing a Chapter 93A case as a counterclaim (a lawsuit filed in response to an existing lawsuit).  A letter is also not required if the business does not have an office or assets in Massachusetts.

This demand letter is a critical requirement for a Chapter 93A case.  Failure to comply with this requirement is often grounds for dismissal.

Chapter 93A for Landlords and Tenants

Exhibit Source, Inc. has several important lessons on how Chapter 93A applies to landlords and tenants.

First, Exhibit Source, Inc. is a good example of  Chapter 93A’s breadth.  Many acts, which might not otherwise be unlawful, can fall within the context of Chapter 93A, making it a powerful tool in pursuing a landlord-tenant dispute.

Second, Exhibit Source, Inc. discusses a central goal of this law: encouraging parties to settle their disputes without going to court.  If a party fails to offer a reasonable settlement offer in response to a Chapter 93A claim, the court can (and most likely will) punish them for this.

For this reason, a landlord who receives a Chapter 93A demand letter needs to properly address it.  Failure to do so can lead to much greater problems later on if the matter winds up in court.

Conclusion

If you need assistance with a Chapter 93A matter, contact me for a consultation.

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Getting Back a Security Deposit in Massachusetts

It is not uncommon for Massachusetts landlords to accept  security deposits from tenants.  In doing so, many make mistakes in complying with Massachusetts’s security deposit law; arguably one of the most complex and detailed laws in the state.

This law provides numerous protections that can help tenants with getting a security deposit back if a landlord unreasonably refuses to return it.

Overview of the Massachusetts Security Deposit Law

Massachusetts’s security deposit law regulates how a landlord is allowed to collect and hold a tenant’s security deposit.  Skim through this law and you’ll see that almost everything concerning a security deposit is subject to one of this law’s provisions.  The amount of the security deposit, bank account where it can be held, and the return of the deposit are all covered by this law.

Failure to comply with Massachusetts’s security deposit law has dire consequences for landlords.  Penalties can include treble damages, court costs, and attorney fees.  This means that even a small security deposit violation can lead to a large judgement for non-compliance with this law.

Penalties for Not Complying with the Security Deposit Law

Penalties for not complying with this law generally fall into two categories: forfeiture of the deposit or treble damages.

The first type of penalty, forfeiture, allows a tenant to get their deposit back right away if the landlord fails to comply with certain portions of the law, and the tenant demands the deposit’s return.  If a landlord does not immediately return the deposit, they risk subjecting themselves to the more severe penalties under this law.

The second category of damages are treble damages, which are reserved for the most egregious violations of the security deposit law.  Most common is a landlord’s failure to return the deposit (or account for its use) within thirty days after the tenancy ends.

Options for Getting Back a Security Deposit 

A common way for raising a security deposit claim is through a Consumer Protection Law demand letter.  Such a demand letter can be an effective means of getting a prompt resolution to one of these disputes.  Moreover, a landlord’s failure to respond to such a letter with a reasonable settlement offer can be further grounds for liability.

Security deposit claims can be pursued in small claims court or in a civil action.  To do so, a tenant should strongly consider speaking with an experienced landlord-tenant attorney about one of these matters.

Conclusion 

If you need help with getting back a security deposit in Massachusetts, contact me for a consultation.

Massachusetts’s Security Deposit Law

A recent article from the Boston Globe, “Apartment management won’t return security deposit? That’s just one problem at this Revere complex,” highlights the importance of understanding Massachusetts’ security deposit law: an important consumer protection law for tenants.

Overview of Massachusetts’s Security Deposit Law

This article discusses a common scenario for tenants who have provided a landlord with a security deposit: a landlord’s outright refusal to return the deposit at the end of the tenancy.  Prior to the security deposit law, tenants had few options for pursuing such claims; often, the expense in attorney fees for suing  for one of these deposits made such claims far more expensive than the actual deposit itself.

For this reason, Massachusetts passed the security deposit law, which, I imagine, is one of the most pro-tenant laws in the entire country.  This law imposes numerous regulations on the acceptance, holding, and return of a security deposit, and provides stiff penalties for a landlord’s failure to comply with this law, namely, treble damages of the deposit. This is 0ne reason, among many, why a landlord should consider not accepting a security deposit in the first place.

Violation of the Security Deposit Law 

It is a common misconception that every violation of the security deposit law allows a tenant to recover treble damages, attorney fees, and costs against a landlord.  Rather, the Supreme Judicial Court has clarified that some violations of the law simply require the immediate return of the deposit, while others mandate treble damages.  Generally, a landlord’s failure to return a security deposit within thirty days after the end of the tenancy (or otherwise account for its use towards any damage in the apartment) will impose the treble damage penalty.

Conclusion

If you find yourself having difficulty with a security deposit, contact me for a consultation.  I have helped many Massachusetts tenants obtain the return of their deposits and take full advantage of the protections of this law.

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.