Massachusetts tenants in eviction (“summary process”) cases have the option of suing the landlord who is trying to evict them, in an action known as a counterclaim. A counterclaim, simply put, is a lawsuit brought against the party who first filed the lawsuit. Counterclaims are permitted in eviction cases brought for a tenant’s failure to pay rent or a no-fault eviction. Counterclaims are not permitted for cause evictions (ex. violating the terms of a lease).
An important thing about counterclaims in summary process is that they are not mandatory. A tenant can choose to file a counterclaim, but does not lose that claim if he or she does not file it. This is unlike most other civil cases, where the party can lose that claim if they do not raise it in a prior case.
Should you raise counterclaims in summary process? Counterclaims can sometimes be good leverage for a tenant trying to negotiate a settlement, and it can save time for the tenant by having these issues determined in one single lawsuit. On the other hand, eviction cases in Massachusetts move at a fast pace, with limited discovery (the ability to learn about the other’s side position through written questions and document requests). Some claims are too complex for summary process, and are better pursued in a separate court case (a personal injury claim, for example, is probably too complex for summary process).
Tenants should also bear in mind that if they do pursue a counterclaim and are unsuccessful, they may not get a chance to try the claim again.
Consult with an attorney if you find yourself in an eviction and need help in determining whether to raise counterclaims in your case.
September 1st is one of the biggest moving days in Boston. With more than 100 colleges in the Boston region, there will be plenty of college students moving in and out of apartment in the city (along with other residents whose leases will be expiring). Many of these movers will be using moving trucks, often through rental services such as U-Haul and Penske. The City of Boston and many surrounding cities require parking permits for these trucks; something many movers do not know until it is too late. Fortunately, this year, the City of Boston has made it easier for movers to obtain these permits by allowing them to apply online, instead of in person.
Here are some other tips for moving this September:
As a landlord/tenant attorney, I have learned that sometimes the simplest advice is the best. It is common, especially with contentious landlord/tenant relationships, for allegations to surface regarding the failure of one party to properly maintain the property. When one of these situations arises, the old adage that “a picture is worth a thousand words” has much meaning. This advice comes into play when dealing with allegations by both landlords and tenants alike regarding poor conditions in rental property.
In law, it is not what you know; it is what you can prove. An allegation that a tenant has damaged the rental property, or a claim that a landlord has not properly fixed something in the unit, means little if you cannot prove it. One’s testimony on these matters is helpful, but the best proof is photographic evidence. If you find yourself in such a scenario, do yourself a favor and take good pictures of what you want the court to see. To leave no doubt that the picture was taken at a certain date, include a copy of the daily newspaper in the pictures. Everyone today has a smartphone and/or tablet, and there is really no excuse for not documenting this evidence. And you do not need to wait until a problem has arisen to do this; both landlords and tenants should take pictures of rental property before and after moving into the unit. If problems arise, these photos can make or break your case.
If you ever do need to show these photos to the court, remember that the court will generally not look at these pictures on your phone and/or tablet. You will need hard copies of these photos, so print these pictures in advance of your court date.
Moreoever, photos are often the preferred means of presenting unfavorable rental conditions in court. Believe it or not, some tenants have come to court with dead rodents and bedbugs to present as evidence; something the court will not be happy about! A picture is the much better alternative.
Are you in such a scenario? Contact me for a consultation.
I’m pleased to announce that I’ve updated my blogs and website. I hope the new format is easier to navigate and better integrates all of my content. The biggest change is for my blogs, which are now part of the website itself. Thanks for visiting!
A recent Boston.com article illustrates the perils of housing discrimination in Massachusetts. The U.S. Department of Justice filed a civil complaint against a North Attleborough apartment complex owner for discriminating against applicants with children. This owner reportedly tried to discourage renters with children from renting one of his apartments. The parties in this case reached a settlement: $135,000 in restitution (and likely a great deal for attorney fees for the apartment owner).
Housing discrimination is illegal, both under state and federal law. As this article shows, these laws are enforced. Landlords caught discriminating against potential tenants can face huge fines, even if the alleged discrimination is inadvertent.
With this in mind, landlords need to familiarize themselves with the protected classes of persons from discrimination (The Massachusetts Attorney General’s Office has a great summary of these laws). I always recommend that landlords keep a log of all the potential tenants who look at their rental properties, and the specific reasons why the landlord decides to reject an applicant. Landlords who are concerned about asking the wrong questions during the application process should consider using a script and write their questions in advance. While this may sound overkill, the risks of being accused of rental discrimination just isn’t worth it.
Massachusetts’s trial court system has a unique forum for resolving housing matters: Housing Court. Housing Court has jurisdiction over civil and criminal matters related to the health, safety, or welfare of the occupants or owners of residential housing. In addition to eviction cases (probably the most common type of case in Housing Court), Housing Court can hears civil, criminal, and small claims cases related to housing.
Housing Court has a unique feature that allows plaintiffs and defendants to transfer their case into Housing Court, if Housing Court has jurisdiction over the case. A transfer to Housing Court can be done anytime up to the day before trial and only requires the submission of a simple transfer form to the original court and Housing Court.
Sometimes, a party in a landlord/tenant case needs the court to do more than simply award monetary damages or possession of the property. In such cases, injunctive relief can be a good option.
An injunction is a court order that mandates or prohibits a party from doing a certain action. A landlord, for example, can obtain an injunction against a tenant to enjoin them from damaging property (if they have sufficient evidence that this harm is occurring). Tenants can also get injunctions; these are obtained frequently when a landlord refuses to fix dangerous conditions in a property.
To get an injunction, a party needs to show irreparable harm–damages that cannot be resolved through monetary damages. Fortunately, matters involving property are often sufficient for this type of relief.
If you are facing a landlord/tenant problem that requires immediate attention, consult an attorney to determine if an injunction is right for you.
An option for landlords and tenants who need to sue for low amounts of money ($7,000 and under) is small claims court. Small claims cases may be brought in District Court, Boston Municipal Court (if your case occurred in Boston) or Housing Court (if your case directly concerns a housing issue).
Compared to other courts in Massachusetts, small claims court is an informal process, intended for parties to use without the help of a lawyer (although parties may have a lawyer represent them if they chose to). The rules of evidence are relaxed and trials are informal. In most small claims sessions, parties also have the option of trying mediation to settle their disputes.
Landlords can use small claims court to seek unpaid rent against tenants, as well as damages to the rental property. While landlords can pursue unpaid rent against tenants in an eviction case (“summary process”), an eviction case requires a dispute over possession of the rental property. If the tenant is no longer living in the property, summary process is the wrong forum for disputes over unpaid rent. Moreover, a landlord cannot pursue monetary claims for damages beyond unpaid rent (such as physical damages to the premises) in summary process. Tenants can use small claims court for claims against landlords, such as violations of the security deposit law and poor conditions in the rental property.
While small claims is useful for resolving certain disputes, there are drawbacks to this process. For example, a plaintiff in small claims waives their right to an appeal; if they lose, the case is over. Discovery is also limited; parties may not be able to obtain the same information from the other side as they would in another court. Finally, small claims court is primarily for recovering monetary damages; parties are generally unable to obtain non-monetary relief (such as a restraining order or injunction).
Selecting tenants is one of the most challenging jobs for a landlord. Renting to anyonecomes with risk, and choosing the wrong tenants can be costly, both in time and money. Landlords should use extreme care in the tenant screening process. A helpful resource for landlords in finding the right tenant is 99 Signs You Shouldn’t Rent To That Tenant. This guide offers things to watch out for when meeting potential tenants.
When selecting tenants, landlords should consider keeping a log of each person who views the rental property, and any specific reasons why the landlord did not offer to rent to the prospective tenants. This will help if the landlord is ever accused of discrimination or unlawfully refusing to rent to a tenant (topics I will discuss in a future post).
The Massachusetts Appeals Court issued an important decision today on the right of parties to collect attorney fees in landlord/tenant cases. In Aviksis v. Murray, the Court held that “guarantors” of a landlord/tenant lease could not rely on laws that allow tenants to collect attorney fees for cases brought against landlords for failure to comply with any “covenant or term of the lease” or in the defense of a lawsuit brought by the landlord. A gurantor of a lease, simply enough, is someone who assumes liability if rent is not paid or damages occur to the rental property. This is often required for tenants with limited credit history or no references.
A little background on attorney fees in civil cases. Under what is called the American Rule, each side in a civil case pays their own attorney fees. Even if you win the case and a judgment against the other side, you are still on the hook for your legal costs. The exception to this rule is when a law allows one side to recover legal costs against the other or, as is common in leases, a contract provision allowing a party to obtain attorney fees if they ever need to go to Court.
In these situations where the lease allows the landlord to collect attorney fees against tenants, Massachusetts law provides an important safeguard for tenants: tenants, in such cases, can likewise obtain legal fees against landlords for a landlord’s failure to comply with any “covenant or term of the lease” or in the defense of a lawsuit brought by the landlord. . . even if the lease does not explicitly allow attorney fees for the tenant.
In Aviksis, several tenants brought suit against their landlord for damages arising from water in the apartment. A father of one of the tenants was a guarantor on the lease and accordingly, was countersued by the landlord for these damages. The father won his case and attempted to recover his legal fees under the law discussed above: G.L. c. 186, § 20. The question for the Court was whether a guarantor of a lease was entitled to attorney fees under this law.
The Court relied on the plain meaning of the statute and held that tenants, and tenants alone, are entitled to the provisions of G.L. c. 186, § 20. Even though the guarantor may have been in the tenants “shoes” for the purposes of this case, the guarantor does not have the same rights as the tenants under this law.
Under Massachusetts landlord/tenant law, guarantors of leases are not treated the same as tenants. In short, if you assume liability for a lease, do not expect to get the same protections afforded to tenants under the law.
Obtaining attorney fees continues to be the exception, rather than the rule, in civil litigation . . . something to always consider in deciding whether to pursue litigation.