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

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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.

Somerville Eviction Cases

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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.

 

Who Pays for Legal Fees in an Eviction Case?

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A central question that anyone in a landlord/tenant case needs to consider is, who pays legal fees in an eviction case?  The answer to this question makes a huge difference in determining whether to pursue a potential claim against a landlord or tenant.

Massachusetts, like most of the country, follows the American Rule in awarding attorney fees in a lawsuit.  Unless there is a law explicitly allowing attorney fees, a prevailing party doesn’t get attorney fees in a lawsuit . . . even if the court determines they were on the “right” side of the law.

The American Rule most directly impacts landlords in eviction cases against tenants.  Landlords generally cannot recover attorney fees in an eviction case against a tenant.  A landlord who prevails in an eviction case is entitled to the “costs” of the case, but this is generally limited to the filing fee of the lawsuit, and not any attorney fees incurred in one of these cases.  Some leases provide for attorney fees if a landlord brings an eviction case in court, but this alone does not guarantee that a landlord will obtain these fees from the tenant: a landlord (like any party in a lawsuit) can only obtain a judgment from a party with assets.   If the tenant does not a steady income, property, or anything else of value, the landlord will have a judgment that they cannot recover.

The same isn’t true for tenants bringing claims against landlords.  Massachusetts has some of the most tenant friendly laws in the country, allowing for legal fees in an eviction case.  Violation of one of Massachusetts’s many landlord/tenant laws, such as the security deposit law, will not only subject a landlord to monetary damages, but require them to pay a “reasonable” attorney fee if the tenant prevails.  For a lengthy eviction case, these attorney fees can be huge.

With this in mind, both landlords and tenants should keep in mind who pays attorney fees in eviction cases when evaluating their options.  For landlords attempting to evict a tenant, strong consideration should be given to working out settlement agreements in lieu of litigating these cases.  The potential risks of fighting one of these cases can be costly (as unfair as this can  be).  For tenants who are dealing with an unfair landlord, Massachusetts’s landlord/attorney laws, which provide for attorney fees for a prevailing tenant, are a strong reason why tenants should speak with an experienced landlord/tenant attorney if they are dealing with a bad landlord.

If you find yourself in either scenario, contact me for a consultation.