Evictions for Lease Violations in Massachusetts

Evictions for lease violations occur when a landlord wishes to evict a tenant for violating the lease term, other than non-payment of rent.

Such cases are similar in many ways to other eviction cases but come with several differences that landlords need to be aware of.

What’s Required for Bringing an Eviction Based on a Lease Violation?

Many courts assume that a tenant’s violation of a lease needs to be a material breach of the agreement. In other words, a minor lease violation, on its own, may not be enough to justify an eviction.

This, of course, depends upon the case’s specific circumstances but is something to consider before pursuing such a matter.

Evictions for lease violations almost always require some form of notice to the tenant. Most leases generally require a seven-day notice to quit, stating the specific grounds for eviction.

Such notices must be prepared carefully; the failure to include a reason for eviction can keep the landlord from raising that matter later on.

Proving the Matter In Court

Evictions for lease violations generally follow the same procedure as most other eviction cases in Massachusetts. A notable exception is that tenants are generally not allowed to raise counterclaims against a landlord in such a case (where the tenant can sue the landlord in the same court action).

While it isn’t hard to start an eviction case for a lease violation, proving such a matter to a court can be different. The rules of procedure and evidence control how the court can decide one of these cases. Failure to know these rules can result in the exclusion of necessary witnesses and evidence and can be fatal to one’s case.

Final Thoughts

For these reasons, an eviction case for a lease violation has many traps for the unwary. Massachusetts landlords should strongly consider hiring an experienced attorney to help with one of these matters. Contact me if you need assistance with such a case.

Landlord Liability for Dogs

On the issue of landlord liability for dogs, a recent Appeals Court decision keeps landlords out of the doghouse for some of the problems that can arise from a tenant’s pets. The full decision, Creatini v. McHugh, is included below.

Background

This was a lawsuit brought by a man who was riding a bicycle with his dog running on a leash beside him, and attacked by a tenant’s dog on the street. This man sued the tenant’s landlord for his damages: someone he did not know, and who he never had any sort of relationship with.

Besides the obvious question, of why this man was riding a bicycle while walking his dog, this case raises the important issue of a landlord’s liability for a tenant’s dog. As the Court explained, does “a landowner h[ave] a legal duty to protect passers-by from a dog kept on the landowner’s property, but owned by the landowner’s tenant?”

Here, the Court ruled “no.” As explained in the decision:

Here, [the landlord and other party] had no special relationship.
Indeed, they had never met. Creatini’s injury did not occur on
McHugh’s property, but on a public street. Nothing in the
summary judgment record indicates that McHugh was aware that
Mills’s dog was aggressive or prone to attack passers-by. In
these circumstances, we agree with the judge’s conclusion that
“[a]n injury to a person running a leashed dog while riding a
bicycle on a public street from a dog fight started by an unleashed dog is not a foreseeable event that warrants the
imposition of a duty upon a landlord.”

Practical Implications

Creatini is a good decision for landlords. Imposing liability on a landlord in these circumstances would have opened the “flood gates” for all sorts of potential liability for a tenant’s conduct.

I caution, however, that there are three critical parts of this decision that lead to this outcome: (1) the injured man had no relationship to the landlord; (2) the landlord had no knowledge that the dog was dangerous; and (3) the injury occurred on the street, and not on the landlord’s property.

If any of these facts were different, this decision could have come out the other way. If, for example, the landlord knew that the dog could have caused harm to someone else, a stronger case could have been made against the landlord. For this reason, landlords cannot turn a blind eye if they have good reason to believe that a tenant’s dog is dangerous.

Conclusion

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

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Eviction Notices During COVID-19

As the COVID-19 pandemic continues, new state requirements now exist for the service of non-payment of rent notices to quit. This includes a required attestation form and the filing of the notice to quit with the Commonwealth of Massachusetts.

Eviction Notices During COVID-19: What’s Required?

For non-payment of rent notices to quit, state law now requires that landlords serve tenants with an attestation form, which provides an overview of the eviction process and resources available for tenants (a copy of the form is below).

This form must be served with the notice to quit, and both documents must be filed online with the state.

Practical Implications

Landlords need to be careful with eviction notices during COVID-19. Failure to comply with any of these requirements will likely derail an eviction case.

One of the requirements under the attestation form is to state whether the rental property is a “covered dwelling” under the federal CARES Act. If it is, this federal law requires a landlord to use a thirty-day notice to quit (rather than the standard fourteen-day notice).

Because it can be difficult at times to determine whether rental property falls under this law, I am erring on the side of caution and using a thirty-day notice, in most cases.

Landlords should be mindful that the CDC eviction moratorium remains in effect through the end of the month (and will almost certainly get extended). This moratorium does not prevent the filing of an eviction case, but it does stop a landlord from obtaining possession of rental property while the moratorium remains in place.

Conclusion

If it isn’t clear already, eviction notices during COVID-19 are tricky and can be a trap for the unwary. To avoid some of the pitfalls that can arise in these matters, contact me for a consultation.

Form

How to Divide Property Between Family

The topic of how to divide property between family often comes up when family members own property together, and one member wants out. This most commonly occurs, in my experience, through the inheritance of property among siblings, after a parent dies.

The rule of thumb is that, in nearly every case, if an owner of property wants out, they are entitled to force a sale of the property. For this reason, when such a scenario comes up, it is best for those involved to try and resolve it on their own.

How to Divide Property Between Family: Working Out a Buy Out Or Sale Agreement

When the topic of dividing property comes up, the first thing to be done is try and see if the matter can be worked out amicably, by joint agreement.

When one co-owner of property wants out, there are generally two options available. First, the parties can negotiate a buy out of the owner’s share, where the other owners pay them for their share of the property. This is generally required when one of the co-owners wishes to keep the property, and the others do not.

If a buy out cannot be worked out, the other option is to simply agree to sell the property.

How to Divide Property Between Family: Partition

If an agreement among the property owners cannot be reach, any owner may file a partition case, where the court orders a sale of the property.

A partition case may be filed in either Land Court or Probate and Family Court. The process can be expensive, as the parties will generally need to pay attorney fees and court expenses. The filing of one of these cases, however, can be effective in moving one of these matters towards a final resolution.

Final Thoughts

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

MCAD Complaints Against Landlords

MCAD complaints against landlords generally occur when a prospective, prior, or current tenant accuses a landlord of housing discrimination. When faced with such a claim, landlords need to act promptly and diligently in responding to such charges.

What is MCAD?

The Massachusetts Commission Against Discrimination (“MCAD”) is a state agency that handles discrimination claims, including those concerning housing.

MCAD is not a court, but functions in a similar manner, and has the power to issue decisions and award damages for violations under the law. For this reason, MCAD complaints against landlords are just as serious as any court case.

MCAD complaints against landlords begin with a notice that a claimant has filed a claim of discrimination against the landlord, which is followed by an investigation and determination on whether the tenant has a viable claim. MCAD will then see if a settlement can be reached. If a resolution is not possible, the matter will proceed to a hearing, in a manner similar to a trial.

Housing Discrimination

Housing discrimination is prohibited under federal and state law, and is a serious offense. Housing discrimination law prohibits a landlord from treating a tenant differently based on a protected classification, such as race or gender.

How to Handle a Housing Discrimination Claim in MCAD

When faced with a housing discrimination claim from MCAD, landlords must act promptly. Such a claim generally requires a landlord to respond by submitting a position statement, where the landlord gives their side of the story. Do not ignore a MCAD notice!

Compared to a court, MCAD is intended to be more “user” friendly, and it is not uncommon for tenants and landlords to represent themselves. However, given that MCAD functions nearly the same as a court, landlords should strongly consider hiring an attorney to represent them in such a proceeding. This is especially true given the many complexities of most housing discrimination cases.

Conclusion

As with any other legal proceeding, an MCAD complaint needs to be addressed timely and properly. If you need assistance with such a matter, contact me for a consultation.

Fixing a Real Estate Mistake in Massachusetts

Mistakes happen . . . especially in real estate. The legal options for fixing a real estate mistake vary based on the circumstances and the dispute that must be resolved.

Fortunately, Massachusetts law provides a number of causes of action for resolving these issues.

Getting Someone Off a Deed

When property is owned jointly by several owners, it is not uncommon for one owner to want own. If the parties cannot work it out on there are, there are several options available for such cases.

If someone is on a deed through a mutual mistake (where both parties erred in the drafting of the deed), fraud, accident, illegality, or unjust enrichment, a deed reformation may be a possibility. This is a court action asking for the removal of a party from the deed. Such a case, however, will only be available in these limited circumstances, and will generally not be viable if the other person was freely and willingly deeded the property.

In most other cases, the process of removing someone from a deed must be done through a partition case, which is a legal action to force a sale of property.

Discharging a Mortgage

When a mortgage is paid in full, a notice must be filed (“recorded”) in the land records stating that no further debt is owed on the property. Known as a mortgage discharge, this document is incredibly important for a later sale of the property.

Without a discharge, few (if any) prospective buyers will purchase a property, with the concern that a mortgage may still exist.

Massachusetts has a detailed procedure for fixing a real estate mistake such as this, including a court action ordering such a discharge.

Getting Rid of An Adverse Claim To One’s Property

An adverse claim to property occurs when a property owner’s neighbor or abutter claims they own a portion of someone else’s real estate. When this occurs, the goal is to get rid of such an adverse claim as quickly as possible.

One means of fixing a real estate mistake such as this is through try title. Try title requires that the other party, who is asserting a adverse claim, to either pursue the claim, or lose it forever.

Final Thoughts

Fixing real estate mistakes is not always easy, but can be done through the assistance of an experienced attorney. If you need help in such a matter, contact me for a consultation.

CDC Eviction Moratorium: Three Things to Know

The CDC eviction moratorium, which came out in September 2020, remains in place through the end of January 2021, and will almost certainty get extended.

Here, I’ll discuss three things to know about the moratorium.

The Moratorium Only Applies to Non-Payment of Rent Eviction Cases

The CDC eviction moratorium, importantly, only applies to non-payment of rent cases. If a landlord is evicting for no-fault or evicting because the tenant broke a term of their lease, the moratorium does not apply.

Massachusetts, however, allows a landlord to assert a claim for unpaid rent in every type of eviction case . . . not just those for unpaid rent. For example, if a landlord is evicting because the tenant violated a lease term, the landlord can still make a claim for unpaid rent in that case, even if the unpaid rent is not the main reason for the eviction. It remains an unresolved question as to whether the CDC eviction moratorium applies in those circumstances.

Tenants Must Invoke the CDC Moratorium On Their Own

Importantly, the CDC eviction moratorium requires tenants to take the initiative for invoking these protections. A tenant must do so by providing their landlord with a signed declaration (available online).

The CDC declaration includes some specific requirements for tenants, including an income restriction and a representation that the tenant is using “best efforts to obtain all available government assistance for rent or housing.”

When filing an eviction case, a landlord must file an affidavit with the court stating whether or not the tenant has invoked this declaration (a copy of this affidavit is included below). Landlords need to be especially careful with this requirement. A landlord’s failure to timely notify the court about a CDC declaration could lead to severe penalties and delay in eviction.

A Landlord Can Still Initiate An Eviction Under the Moratorium, But Will Be Delayed in Obtaining Possession

Compared to the prior state eviction moratorium in Massachusetts, the CDC moratorium still allows a landlord to file and proceed with an eviction case against a tenant. The main restriction under the CDC moratorium is that a landlord cannot obtain a court order for possession (“execution”) while the moratorium remains in place.

While there is still some inevitable delay to landlords in obtaining possession of a rental unit, the CDC moratorium is not a complete bar on evictions. For this reasons, landlords can and should move forward with an eviction case for non-payment of rent.

Final Thoughts

Although the CDC moratorium does delay the eviction process, it isn’t the end of the world for Massachusetts landlords, as eviction cases can still be filed. This, in my opinion, is critically important: the sooner that one of these cases begins, the sooner a resolution can be reached. Often, the mere filing of an eviction case is enough to move one of these matters along.

If you need assistance with a Massachusetts eviction, contact me for a consultation.

Affidavit

Evicting Tenants During COVID-19

Evicting tenants is a process that always requires prior planning and preparation. As the COVID-19 pandemic continues, the eviction process is slightly different and requires an even greater level of expertise.

Here, I’ll discuss what to know about evicting tenants during COVID-19 in Massachusetts.

Is an Eviction Necessary?

When deciding whether to evict a tenant, it is always worth considering whether an eviction is necessary. This usually comes up for non-payment of rent cases, where the landlord is seeking to evict solely because of unpaid rent (and not because of any problems with the tenant).

In such a case, it is worth seeing if the landlord or tenant can apply for assistance that can help with unpaid rent. Massachusetts’s Residential Assistance for Families in Transition (“RAFT”) is a state program designed for helping tenants in need. Some towns and cities, such as Malden, have local programs for helping avoid eviction.

New Eviction Requirements

Eviction requirements continue to change almost monthly as the pandemic continues. The existing federal CDC moratorium is in place until December 31, 2020 (any may get extended).

Massachusetts recently passed new requirements for eviction notices to quit. This adds new disclaimers for non-payment of rent cases.

New Eviction Procedures

For the eviction process itself, the biggest change is how eviction cases begin. Pre-COVID, eviction hearings occurred on a weekly basis, with all sides required to attend court on a designated date, and go to trial if a resolution to the matter could not be reached.

Now, most evictions start with a status conference with the court staff, aimed at determining how both sides wish to handle the case. Importantly, an opportunity generally exists for a mediation to occur prior to getting deep into the eviction case.

This, in my opinion, is a welcome change in the Massachusetts eviction process, and one that I hope continues post-COVID. It makes much more sense to get landlords and tenants to start discussing a resolution of an eviction case as soon as possible, rather than spend time and money in court.

Final Thoughts

If you assistance with a Massachusetts eviction, contact me for a consultation.

Proving Adverse Possession

Proving adverse possession isn’t easy. A recent decision from the Appeals Court (enclosed below) explains some of the many nuances when pursuing such a claim.

Adverse Possession 101

Adverse possession is best described as a property rule requiring land owners to “use it or lose it.” Adverse possession is a legal claim by which a party can acquire someone else’s record property if they continuously use it for twenty years (along with some other requirements).

The person bringing an adverse possession claim has the burden of proving each these elements. A court will look closely at whether such a claimant has made a case for each of these detailed requirements. Since adverse possession will often result in the loss of record property to someone else, few courts will entertain such relief unless a viable case has been established.

Proving Adverse Possession

As the case below shows, proving adverse possession generally comes down to who the judge or jury finds is most believable. Often in these cases, there is “two sides to the story,” and a judge or jury must hear all of the evidence and make a finding of fact.

In the case below, a claimant who lost their adverse possession case appealed this decision and claimed that the judge’s decision was clearly erroneous. This required the claimant to convince the Appeals Court that the judge’s decision lacked a solid basis in fact or law.

Such a showing is hard to make. It is not enough to show that the decision could have “gone the other way.” Rather, proving that a decision is clearly erroneous requires a showing that the decision was not “soundly based in the record and the law.”

In every civil case, someone wins, and someone loses. An appellate court won’t change a decision simply because the claimant thinks the judge or jury should have reached a different decision.

Here, because the judge in this adverse possession case had a basis for his or her decision, the appeal of this decision was not successful.

Practical Implications

This case demonstrates the importance of preparing a strong case for proving adverse possession. Because the outcome of one of these decisions is entirely in the hands of a judge or jury, who has the sole decision in determining which side is credible, it is critical to properly prepare such a case through the assistance of an experienced attorney.

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

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