No-Fault Evictions: Three Things to Know

No-fault evictions are the process used to evict tenants at will, where the landlord or tenant has the option of ending the tenancy at any time, with proper notice. Here, I’ll discuss three things to know about no-fault evictions.

No-Fault Evictions Are Often Required for Evicting Tenants Who Continue To Pay Rent Past Their Original Lease Term

No-fault evictions typically arise in one of two scenarios.

The first is for cases when the landlord and tenant orginally entered into a tenancy at will. In such an arrangement, either the landlord or the tenant has the option of ending the tenancy with proper notice to the other party. In Massachusetts, nearly all tenancies at will are month-to-month. This, however, is not required: landlords and tenants can agree to a tenancy at will for a different term, such as every two months.

The other common scenario for no-fault evictions is tenants who continue to rent past their original lease term. For example, Terry Tenant has a one-year lease with Larry Landlord from July 1, 2020, through June 30, 2021, with rent due on the first of the month. What happens if Terry pays, and Larry accepts, rent for July 2021? Terry and Larry now have a tenancy at will.

If Larry wishes to evict Terry, he will need to file a no-fault eviction (assuming Terry is current on his rent and has not violated any prior lease terms).

A Landlord Does Not Need A Reason to Pursue a No-Fault Eviction, but May Not Discriminate or Retaliate Against a Tenant

As the name suggests, these eviction cases do not require a landlord to have a reason for evicting a tenant. Instead, a landlord needs to simply provide adequate notice to a tenant through a valid notice to quit.

It is, however, a mistake to believe that a landlord has unfettered discretion in filing an eviction case. Massachusetts law expressly prohibits discrimination and retaliation against tenants. Both are valid defenses in eviction cases.

Notices to Quit for No-Fault Evictions Must Be Properly Drafted

Arguably the biggest mistake made with no-fault evictions is the preparation of the notice to quit. While such notices are commonly referred to as “thirty-day notices”, thirty days is the minimum amount of time required. The required notice is the greater of thirty days or one full rental period.

In addition, there are other nuances and requirements for these notices that a landlord must pay special attention to. For this reason, extra care should be taken in this first critical part of the eviction process.

Final Thoughts

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

Early Eviction Cases in Massachusetts

Most are familiar with the general idea that a landlord can evict a tenant for staying past a lease term, not paying rent, or violating a lease requirement. Massachusetts, however, has a lesser known law available for early eviction cases, where a tenant has stated their unwillingess to leave at the end of a lease.

When Can a Landlord Do an Early Eviction Case?

The law on early evictions, found in G.L. c. 239, § 1A, states, in part, the following:

A lessor of land or tenements used for residential purposes may bring an action under this chapter to recover possession thereof before the determination of the lease by its own limitation, subject to the following conditions and restrictions. The tenancy of the premises at issue shall have been created for at least six months duration by a written lease in which a specific termination date is designated, a copy of which, signed by all parties, shall be annexed to the summons. No such action may be initiated before the latest date permitted by the lease for either party to notify the other of his intention to renew or extend the rental agreement, or in any case before thirty days before the designated termination date of the tenancy. The person bringing the action shall notify all defendants by registered mail that he has done so, which notification shall be mailed not later than twenty-four hours after the action is initiated. The person bringing the action shall demonstrate substantial grounds upon which the court could reasonably conclude that the defendant is likely to continue in possession of the premises at issue without right after the designated termination date, which grounds shall be set forth in the writ.

Importantly, this type of eviction is available only for a tenant with a written lease of at least six months. This eviction option cannot be used against a month-to-month tenant (“tenancy at will”).

A landlord must have “substantial grounds” to believe that the tenant will not leave before the end of their lease. I am not aware of any direct cases that define what this is, but I imagine most courts will want to see that a landlord has spoken (or attempted to speak) with a tenant before starting an eviction.

As I read the law, no notice to quit is required for such an eviction. It is, however, good practice for a landlord to provide a tenant with as much advance notice of their intention to not renew a lease, to avoid any surprises to the tenants. Landlords should also check the terms of the lease itself, for any particular requirements on this matter.

This law does, however, require a landlord to notify the tenants by registered mail after filing such a case.

Practical Implications

Early eviction cases are a good option for tenants who have expressed no interest in leaving at the end of a lease. Rather than force a landlord to wait until the end of the lease term, a landlord can start a case sooner and expedite the process.

Landlords should be mindful, however, that the eviction process is not quick . . . even in one of these early eviction cases. Although such a case allows a landlord to file an eviction before a lease ends, such a case will still take time (especially during COVID-19).

Conclusion

For assistance with an eviction matter, contact me for a consultation.

Cash for Keys: What Landlords Need to Know

Cash for keys is a popular alternative to the formal eviction process in Massachusetts. As an incentive for tenants to voluntarily leave a rental property, landlords can offer tenants money to move. Often, such deals can save landlords significant time and expense.

Here, I’ll discuss some important things that Massachusetts landlords should know about cash for keys.

Pros and Cons of Cash For Keys

For many landlords, the thought of offering money to a tenant (especially a non-paying tenant) is perplexing. However, basic economics can often make such agreements very viable for landlords. An eviction case can easily cost thousands of dollars in attorney fees and court costs. Offering a portion of that money to the tenant can sometimes avoid the entire process and lead to a much quicker outcome.

Cash for keys, however, isn’t always a good deal for landlords. If a tenant insists on an unreasonable amount of money, eviction may be the better option.

Cash for Keys Agreements Should Always Be in Writing

These agreements should always be in writing. Importantly, they need to include all of the deal’s relevant terms, including a specific date by which the tenant must vacate and a requirement that the tenant remove all of their possessions from the apartment.

Landlords should also require a tenant to waive all claims they might have against the landlord, arising out of the landlord-tenant relationship.

Cash for Keys Is Not A Substitute For A Formal Eviction

These kinds of agreements, importantly, are not a substitute for the formal eviction process in Massachusetts.

If a tenant does not leave the apartment, a landlord will still need to evict. If one of these agreements is reached as part of a settlement in an on-going eviction case, a landlord will still need to obtain the required execution for possession to have the tenants removed.

Final Thoughts

It can be beneficial to have an experienced attorney assist with one of these matters. If you need help in such a case, contact me for a consultation.

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.

Section 8 Evictions

foreclosure appeal

Section 8 evictions, compared to other residential evictions in Massachusetts, follow a slightly different set of rules and restrictions. This week, the Appeals Court issued a decision clarifying the required notice to quit for Section 8 evictions.

Ironically, I had been working on this exact issue the day before the Appeals Court issued this decision. I wish the courts would consult me before issuing their decisions!

What is Section 8?

Section 8 is a federal program that provides housing vouchers to those with low income. Section 8 caps the amount that participants must pay in housing (usually 30% of gross income) and subsidizes the rest.

Section 8, importantly, pays this voucher directly to the landlord and does not provide rental housing directly. Section 8 requires landlords and tenants to enter into a specific type of lease and rental paperwork.

Notices to Quit for Section 8 Evictions

Notices to quit are required for nearly every eviction in Massachusetts. For Section 8 evictions, however, the required paperwork for these tenancies have detailed requirements about what must be included in these notices, and include limitations on the potential grounds for eviction.

One of the central issues in this case was whether a Section 8 tenant, who had become a tenant at will (a “month-to-month” tenant) could be evicted for no-fault. Such a scenario occurs when a tenant has stayed pass the lease term, but continues to stay in the rental apartment and pay rent.

Typically, a tenancy at will can be ended by either the landlord or tenant, with no reason needed from either side. However, because the Section 8 paperwork seemed to suggest that a reason is needed for a Section 8 eviction, it remained unclear whether a no-fault eviction was ever allowed for Section 8 tenancies.

The court concluded that a no-fault eviction could be brought against a Section 8 tenant. However, unlike other no-fault evictions, the notice to quit for a Section 8 tenant is required to include an explanation for eviction. Even though no reason was required for the eviction, the landlord needed to expressly state that to the tenant in the notice.

Practical Implications

A paragraph at the end of this decision summarizes these points about evicting a Section 8 tenant:

This case demonstrates that landlords of Section 8 tenants
must be careful to comply with the notice provisions contained
in paragraph 8(g) of the HAP contract tenancy addendum even where the tenancy is at will. Those notice provisions do not
displace the landlord’s ability to terminate an at-will Section
8 tenancy, but they do require that the tenant receive notice of
the reason for the termination. That reason must be contained
either in the notice to quit or the summary process complaint.
Where there is cause for the termination, either the notice to
quit or the summary process complaint must so state; and the
same is true where there is no cause for the termination.

I would add that, in addition to specific requirements on notices to quit, Section 8 often requires that the housing administrator be notified of any eviction proceeding. For this reason, landlords need to review Section 8 paperwork carefully before starting the eviction process (or get the assistance of a qualified landlord-tenant attorney).

Conclusion

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

Buying a Foreclosed Home in Massachusetts

Buying a foreclosed property must be done with care. Compared to the purchase of other real property, foreclosed properties come with their own specific challenges.

Purchasing a foreclosed property usually occurs (1) at the public foreclosure auction sale or (2) from the bank or lender who foreclosed the property, commonly known as a real estate owned (“REO”) property.

Here, I’ll discuss some important topics for buying a foreclosed property.

Foreclosed Properties Are Often Sold “As Is”

Compared to the process of purchasing most other properties, buyers of foreclosed properties generally have few opportunities to inspect the property in advance. Moreover, in most sales of foreclosed properties, a buyer takes the property “as is”, and has limited recourse for any problems later arising in the property.

Title Problems With a Foreclosure Can Become the Buyer’s Problem

Massachusetts is known as a non-judicial foreclosure state, which means that a foreclosure can occur without a court case. Foreclosures, however, must be done with strict compliance under the law. An error in this process can invalidate the foreclosure sale, and can impede a subsequent buyer’s ownership of the property.

Not every error in the foreclosure process will affect the property’s title. However, a buyer of a foreclosed home needs to be mindful of the potential errors that can arise in the foreclosure process, and ensure that such issues have not occurred for the property they wish to purchase.

An Eviction Is Required for Occupants in the Home

If any occupants remain in a property after foreclosure, they must be evicted, through a formal court case. Any attempt to remove occupants without an eviction case is highly illegal and will lead to many problems down the road.

Compared to standard evictions, evictions for foreclosed homes are a slightly different process, and requires knowledge of Massachusetts foreclosure law. This is especially true if the occupant is the former homeowner, and wishes to challenge the foreclosure sale.

Final Thoughts

If you need assistance with buying a foreclosed home, contact me for a consultation.

Evicting Commercial Tenants in Massachusetts

Evicting commercial tenants is a different process than a residential eviction, which are more common in Massachusetts. Although commercial evictions often occur through the same court procedure, the underlining law is different.

With the existing eviction moratorium expected to expire in several weeks, commercial evictions will likely resume soon and, given the economic repercussions of COVID-19, be heavily litigated in the months ahead.

Filing a Commercial Eviction Case

Commercial eviction cases are generally through the same eviction process as residential cases, known as summary process. Summary process cases move at a much quicker pace than other civil cases.

Such cases are generally filed in District Court, but may be filed in Superior Court if the owed rent is at least $25,000.

Importantly, commercial evictions may not be brought in Housing Court.

Under Massachusetts law, business entities (ex. corporations, limited liability companies) and trusts must be represented by an attorney in court (except for small claims cases).

As most commercial landlords exist as a business entity or trust, it is important to have an attorney handling the case. Courts can and will dismiss an eviction if a non-attorney attempts to handle it on their own.

Fewer Defenses for Commercial Tenants

Compared to residential evictions, there are far fewer defenses available for tenants in commercial evictions . The law allows landlords to make commercial tenants largely responsible for the care and maintenance of the rented premises. Many laws protecting residential tenants, such as the onerous security deposit law, do not apply to commercial tenancies.

Final Thoughts

Evicting a commercial tenant must be done with care and with knowledge of the applicable laws and summary process rules. If you need assistance with such a 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.

Mondi

Massachusetts Eviction Moratorium Goes to Court

The Massachusetts eviction moratorium, which has been in place since March, is off to court. A group of Massachusetts landlords have brought a lawsuit challenging the legality of this order, and have asked for a preliminary injunction, requesting that the court immediately stop the eviction ban while the case proceeds.

It would take much longer than a blog post to discuss all of the legal arguments for and against the Massachusetts eviction moratorium, but here’s a quick summary of some of the major points:

  • Landlords argue that the moratorium interferes with the right to access the courts, and the separation of powers between the legislative and judicial branches
  • Landlords argue that the ban is a constitutional “taking” of property, where landlords are deprived of property without compensation
  • Landlords argue that the eviction moratorium interferes with private contracts (leases)

This court case, which was filed in Suffolk Superior Court, is being followed by another legal action in federal court, concerning federal constitutional issues.

Attorney Richard Vetstein and Attorney Jordana Greenman represent the landlords, and did an superb job representing their clients. I’m not familiar with the attorneys who represented the Commonwealth, but they did an excellent job as well.

Judge Paul Wilson is hearing this case, and will be issuing a decision soon. I’ve had the opportunity to argue before Judge Wilson, and can attest that he is a good judge who will issue a well-reasoned decision on these important issues of law. Stay tuned.

If you need assistance with a landlord-tenant matter, or have a question about the eviction moratorium, contact me for a consultation.

Evictions in Massachusetts on Hold Through October 2020

Evictions in Massachusetts are now on hold through October 2020, per Governor Baker’s extension of the eviction and foreclosure moratorium. The moratorium was set to expire on August 18th, and is now extended through October 17, 2020.

As I have written before, the eviction moratorium has put the brakes on nearly every eviction in Massachusetts. With the exception of emergency matters, no eviction cases may be filed until the end of the moratorium. Tenants still remain liable for rent, but without evictions, there is no immediate option for dealing with a non-paying tenant.

Without evictions in Massachusetts, what should landlords do?

  • For non-paying tenants, landlords should send monthly notices of owed rent. It is critical that such notices make it clear that no such eviction will occur during the moratorium.
  • Landlords can and should speak with tenants about problems that arise during the eviction moratorium, including unpaid rent. It may be possible to work the matter out with out court involvement, such as through a repayment plan.
  • Landlords should always keep good records of all landlord-tenant matters . . . especially now. If an eviction becomes necessary, such records are vital for a successful case.

I’ve heard from many landlords who are struggling during the eviction moratorium, and who are understandably concerned about the future. While the moratorium remains in place, it will pass . . . just like the COVID-19 pandemic.

In the meantime, if a landlord has a situation that they believe is a true emergency, they should speak to an experienced attorney. Even with the moratorium in place, I’ve been able to help landlords with some difficult tenant cases, and would be happy to speak with you about your matter. Contact me for a consultation.