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.

 

 

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.

I’ve Been Served With An Eviction Notice! Now What?

What to Do After Receiving a Massachusetts Eviction Notice

Getting served with an eviction notice can be a stressful experience.  Tenants who receive one of these notices need to act quickly to protect their rights.

What is An Eviction Notice?

An eviction notice in Massachusetts is generally one of two things.  To start an eviction, a landlord must send a tenant a notice to quit, informing the tenant that their tenancy is being terminated.  These notices typically provide fourteen or thirty days notice to the tenant, depending on the reason for the eviction.

After a tenancy is terminated, a landlord must serve the tenant with an eviction summons.  This is the official court notice that an eviction is beginning against a tenant, and is the eviction notice that a tenant needs to be most mindful of.

Important Dates in an Eviction Notice

An eviction summons contains a number of different dates, including an entry date, hearing date, and answer deadline.  This last date, the answer deadline, is the most important date to keep in mind in responding to an eviction notice.  This is the date by which the tenant must respond to the eviction notice, and state the reasons why the tenant believes he or she should not be evicted.

Under the rules for Massachusetts evictions, the answer must be received on the answer date.  Unlike other types of court cases, mailing an answer on the answer deadline is not compliant with this deadline; the clerk’s office and the landlord must actually get the answer by this deadline.  Failing to comply with this deadline puts you at risk of a default judgment (an automatic win for the landlord).

Filing An Answer and Request for Discovery

This response to an eviction notice is known as an answer.  In an answer, the tenant is required to admit or deny each of the allegations made by the landlord against the tenant, and to list each of their defenses against the eviction.  A tenant also has the option of bringing claims against the landlord, known as counterclaims.  Common defenses and counterclaims in eviction cases include poor conditions in the rental unit, discrimination, and violation of the Massachusetts Security Deposit Law.

A tenant also has the right to request discovery from the landlord.  Discovery is the process by which a tenant can ask a landlord written questions, which the landlord must answer under oath, and to request that the landlord produce all documents relevant to the case.

Speak With A Landlord/Tenant Attorney For Help in Responding to An Eviction Notice

If this process sounds confusing to you, you aren’t alone.  Despite the availability of many landlord/tenant resources online, eviction cases can be complex and tricky.  Tenants who have received an eviction notice should give serious thought to  meeting with a landlord/tenant attorney for help with their case.  Many tenants are surprised to learn that such services can be affordable and, most importantly, effective at getting you the results you need.

Returning a Security Deposit

 

Rule number one for Massachusetts landlords: never, never take a security deposit.  As I have written before, the risks just aren’t worth it.  The Massachusetts Security Deposit Law is one of the most complex and detailed laws on the books, with numerous traps for the unwary.  Failing to follow one of the law’s requirements can result in treble damages, attorney fees, and costs against the landlord.  As such, a $1,000 security deposit can easily result in $4,000-$5,000 in damages against a landlord if the security deposit law is not strictly followed.

An important part of this law concerns returning a security deposit.  Returning a security deposit would seemingly be an easy task, with the landlord simply taking the required amount of damages from the deposit and returning the balance to the tenant.  The security deposit law, however, has detailed requirements for how this must be done.  Failing to comply with even the most minor requirements of this law can result in enormous damages to the landlord.

How should a landlord handle returning a security deposit?  Contact a landlord/tenant attorney.  An attorney can help ensure that each of these requirements are complied with and save time, money, and heartache down the road.  While it may seem “overkill” to hire an attorney for such a seemingly small matter, doing so can avoid an even bigger problem resulting for a violation of this law.

Tenants who are having problems with getting their security deposits back should also speak to a landlord/tenant attorney.  The aim of the Massachusetts Security Deposit Law is to avoid having tenants lose their security deposits without cause, and provides relief for violations of this law.

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.

Does a Landlord Need a Reason for Terminating a Tenancy?

Does a landlord need a reason for terminating a tenancy?  The answer depends on the type of tenancy that exists between the landlord and tenant.

In a tenancy at will, the rental agreement between the landlord and tenant continues until either party chooses to end it.  As an agreement “at will”, either party is free to end the tenancy simply by providing adequate notice to the other side.  Tenancies at will are generally month-to-month rental agreements, which requires the landlord to provide the tenant with thirty days notice prior to ending the tenancy.  The landlord, importantly, does not need to provide the tenant with a reason for terminating the tenancy.

In contrast, a tenancy by lease, where the rental term is fixed by the terms of an agreement, generally requires a reason for terminating the tenancy.  Here, the terms of the agreement generally defines the grounds for terminating the tenancy, and the type of notice that the landlord must provide to the tenant.  Such an eviction is known as a “for cause” eviction for that reason: the landlord must have a reason for terminating the tenancy.  This generally occurs when the tenant has broken one of the terms of the lease.  A landlord can also terminate a tenancy by lease for non-payment of rent.  Absent one of these reasons, a landlord cannot arbitrarily terminate a lease agreement (unless the agreement provides for this).  This is one of the benefits of a lease: a tenant is guaranteed a place to rent for a set period of time.

Regardless of the type of tenancy, there are limitations on the grounds that a landlord can use to terminate a tenancy.  A landlord can never discriminate against a tenant on the grounds of race, ethnicity, religion, or one of the other protected classes of discrimination under state and federal law.  Similarly, a landlord can never retaliate  (“punish”) a tenant by terminating a lease due to a tenant’s reporting of bad conditions in a rental unit.  A landlord who terminates a tenancy for one of these reasons can get into huge trouble, and be liable for large monetary damages.

If you find yourself in a situation involving the termination of a tenancy, contact me for a consultation.

What To Do About Unsafe Conditions In An Apartment

Unsafe conditions in an apartment is an unfortunate reality for many tenants and landlords owning rental property.  Buildings by nature get old and need repair, and despite the efforts of even the best landlords, unsafe conditions in an apartment can arise.  How should this be handled?

Step one: tell the landlord in writing.  Despite the “slumlord” stereotype of many landlords, most owners of rental property care deeply about their property and those who live in it.  Tenants with unsafe conditions in an apartment should promptly notify their landlord of the problem, and take pictures /video of the poor conditions.  Give the landlord adequate time to address the matter, and be as cooperative as possible in helping to get the problems fixed.

If the landlord refuses to address the problem, the next step is to file a complaint with your town or city’s inspectional services department (“ISD”) or department of health.  These agencies have trained staff who are responsible for inspecting apartments, documenting poor conditions in units, and filing a complaint with the landlord.  If the landlord continues to address the problem, the town or city can bring civil and criminal charges against the landlord.

The law allows a tenant with unsafe conditions in an apartment to withhold rent and seek damages against the landlord.  An important requirement of this, however, is that the landlord has notice of these  unsafe conditions.  This makes sense: a landlord can’t repair a problem that it doesn’t know about.  This is why it important to provide this notice in writing, and keep a copy for yourself.

Massachusetts law prohibits a landlord from retaliating against a tenant who complains about unsafe conditions in an apartment.  A landlord cannot raise rent, begin an eviction, or do anything to “punish” a tenant from making a complaint.  A landlord can be liable for monetary damages if they do such retaliation.

Landlords should always take complaints about an apartment seriously, and document all repairs made to the unit.  Landlords should also be careful about requesting a raise in rent or beginning an eviction after such a complaint is made, so as to avoid a claim of retaliation.

While tenants should absolutely report unsafe conditions in an apartment, this should be done in good faith.  Repeated, bad faith complaints done solely to annoy the landlord, or avoid paying rent, can possibly subject a tenant to problems done the line.  Moreover, this can become a “boy who cried wolf” scenario that will hurts tenants who actually need their apartments repaired.

If you find yourself in a case involving unsafe conditions in an apartment, contact me for a consultation.

 

Fee for a Tenant Attorney

Courtroom

Many tenants in need of legal assistance, as well as landlords involved in legal cases with tenants, often ask about the fee for a tenant attorney.  Most people are familiar with the general model for hiring an attorney: the attorney takes an upfront amount of money and bills the client for their time.  The other common type of billing is a contingency fee, where the attorney takes a fixed percentage of the amount recovered from the case.  In Massachusetts, another type of payment for legal services is also available to tenants: fee shifting.

Fee shifting is a provision in a law that requires the losing party to pay the other side’s legal fees.  Generally, under the American Rule for legal fees, each side bears their own legals fees in a legal matter.  If you spend $10,000 in legal fees to recover a judgment of $5,000, you only get $5,000 in the end (and will have lost the remaining amount spent on the case).  A fee shifting requirement in a law allows the prevailing party to recover these attorney fees if their case is successful.  Many landlord/tenant laws contain such a provision, where the tenant is awarded reasonable legal fees if the claim is successful.  Importantly, many of these laws do not require the tenant to have accrued the legal fee.  In other words, there is no requirement that the tenant had actually spent money towards paying the attorney: the fee for a tenant attorney is still permitted if the underlining claim is successful.

Fee shifting provides a powerful incentive for tenants to pursue claims against landlords.  Without fee shifting, tenants and lawyers have little incentive to consider taking on claims against landlords.  The damages that could be recovered from one of these claims may be too small to make it worth the trouble.  With fee shifting, however, the fee for a tenant attorney becomes part of the case, and can be recovered through settlement or a judgment from the court.

With this in mind, both tenants and landlords should keep in mind the potential fee for a tenant attorney in evaluating a potential landlord/tenant claim.  The potential for damages in one of these cases is an important factor for both sides in attempting to resolve one of these matters.