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.

Rent Escrow in Massachusetts

Rent escrow refers to the holding of rent money while a legal matter is ongoing. The questions most commonly asked about rent escrow in Massachusetts are when, and how, it is allowed.

Rent Escrow Before An Eviction Case

Without a court order, there is no requirement for tenants to escrow rent. This is most relevant when tenants are withholding rent from a landlord due to allegations that a landlord is not properly maintaining a rental unit. While a tenant is allowed to withhold rent in such cases, a tenant does not have to hold this rent money in a separate bank account.

In practice, however, any tenant who withholds rent should escrow this money. If the matter ends up in court, a tenant will inevitably be asked where the owed money went. A tenant who cannot account for such funds can (and likely will) lose credibility with the court.

Rent Escrow During An Eviction Case

If an eviction case has started, a court has the authority to require rent escrow from a tenant. This, however, will not happen automatically. When making such a request, landlords need to articulate why a tenant should be escrowing rent. Without providing a supporting basis, such requests will often not be successful in most courts.

Per the seminal case on this matter, Davis v. Comerford, a court must consider the following factors for such a request:

  • A landlord’s entitlement to use-and-occupancy funds from a tenant
  • The amount of rent due
  • The landlord’s monthly obligations
  • Whether the landlord is facing foreclosure
  • Whether the tenant has any viable defenses and counterclaims against the landlord

Escrowing of rent is most common in a case where a tenant has requested a jury trial; a matter which will inevitably delay the resolution of such a case.

The benefit of requiring the escrowing of rent, of course, is that the money is available at the resolution of the case. Moreover, as a practical matter, such orders often prompt both landlords and tenants to resolve these cases sooner than later.

Final Thoughts

If you need assistance with a landlord-tenant 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.

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

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.

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.

Landlord Advice: Five Tips for Renting in Massachusetts

Landlord advice is a topic I am often asked about for those renting in Massachusetts. Here, I want to share several tips on this important topic.

Use a Written Agreement for All Tenancies

There are generally two options for renting to tenants: a lease (with a specified duration for the tenancy) or a tenancy-at-will (where either party can end the tenancy with proper notice). While leases are generally in writing, tenancies-at-will (often known as “month-to-month” rentals) can be done verbally.

Verbal tenancy agreements should always be avoided. A written agreement should be used for any tenancy relationship and include, at a minimum, the amount of rent, terms of the tenancy, and responsibility for payment of the utilities.

Keep Extensive Records

Records are critical for landlords. If a dispute ever arises with a tenant, having such records are vital for a proper defense.

Records should always be kept of all rent billed and received from a tenant, all work done on the rental property, and all communications between the landlord and tenant.

Don’t Take A Security Deposit

Massachusetts’ security deposit law is long, complex, and impossible to fully understand. Few landlords are in perfect compliance with this law, and any violation can be expensive and time consuming.

Know the Housing Discrimination Laws

State and federal law prohibits housing discrimination. A landlord needs to know these laws and ensure that they are following them. It is a good idea for landlords to review these laws every year, as they do change, and a refresher is always a good idea.

Be Compliant With the State Sanitary Code and Local Zoning Ordinances

All residential housing in Massachusetts comes with an implied warranty of habitability. This means that the property must be fit for a tenant to live in. This responsibility cannot be waived or avoided, under any circumstances.

The guiding star for complying with this warranty is the state sanitary code. A landlord in compliance with this code will generally avoid most potential claims arising from the condition of the rental property.

A landlord should similarly be mindful of local zoning ordinances, and ensure that a property is allowed for renting under the applicable rules and regulations.

Final Thoughts

Renting in Massachusetts isn’t easy, but having a solid background of the applicable laws is critical for avoiding problems in this area of law. If you need assistance with a landlord-tenant matter, contact me for a consultation.