The Today Show on Renting

This morning the Today Show had a segment on renting property.  You can watch the segment at this link: 
  http://video.today.msnbc.msn.com/today/46219482 .  Barbara Corcoran has a lot of good advice, however, I question whether one should pay 6 months of rent in advance. In Massachusetts, it is not even clear to me that a tenant could do such a thing, even if it was completely voluntary.  In any event, paying in advance poses risks for both the landlord and the tenant.  When the tenant, pays in advance, he or she loses her leverage to withhold rent or to even threaten to withhold rent if something serious does go wrong.  Second, a landlord is only entitled to collect rent on the due date for the month it is due.  Even if a tenant voluntarily pays, the tenant could change his or her story and say that the 6 month payment was compulsory.  For those reasons, I'd say its not worth it to consider advance payments.

Second, in Massachusetts, every landlord must provide a written statement of condition for the tenant to fill out.  The tenant absolutely needs to point out what is wrong with the apartment when they move in so it can be fixed and so he or she is not charged for it on the way out.  On the flip side, if the landlord does not obtain that signed, written statement of condition, they are going to have a very difficult time deducting the damage from any security deposit at the end of the tenancy. 

The Importance of Lead Paint Disclosure

The U.S. Environmental Protection Agency (EPA) recently fined three Massachusetts property management companies for their failure to disclosure the presence of lead paint in 11 rental units. All together, the three companies agreed to pay $16,000 to resolve claims by the EPA that they violated the federal lead paint disclosure law. It is common knowledge these days that lead-based paint is a hazard, but few landlords know their responsibilities under the law regarding how to handle rental units that still possess lead paint. Moreover, landlords are not the only ones who need to be aware of their legal responsibilities – the federal lead paint disclosure law applies to property owners, property managers, and real estate agents alike.

Under Massachusetts law, landlords also have responsibilities regarding lead paint. In short, the existence of lead paint in a residential unit is a violation of the State Sanitary Code, though the landlord may delay a full de-leading under specific circumstances laid out by statute. A Massachusetts landlord is also required to supply prospective tenants with documents notifying the tenant of the presence of lead paint. Failure to comply with the lead paint statutes and regulations can subject the landlord to damages, and landlords who willfully fail to take action after notification of the presence of lead paint are liable for treble damages.

As the recent EPA fines prove, if you are a landlord, real estate agent, or anyone else who regularly deals with property management, you must know your responsibilities under the law, or suffer costly consequences.

Speaking Event: Be A Smart Residential Landlord

For 2012, I'll be speaking about one topic or another relating to my practice areas.  The first one is scheduled for February 15, 2012 at my office and the subject is "Be a Smart Residential Landlord:  How to Make Money and Stay Out of Trouble."

I'll be speaking about the various statutes and regulations that come into play when you are a residential landlord, and what you need to do legally and practically to, as the name states, stay out of trouble and make some money. 

Please join me for this free event.  My office is small so space is limited.  Please click the link below to sign up on eventbrite.

http://tinyurl.com/7d5nt56

Spousal Communications

There is an old common law Massachusetts evidentiary rule whereby private conversations between spouses are not admissible evidence in legal proceedings, including depositions.  This “disqualification” applies even if both spouses consent to the evidence, and also survives the death of either spouse.  The original notion behind this rule was to preserve marital harmony and the confidentiality of the marital unit.  This rule applies to both criminal and civil cases.  You have probably seen some suspenseful variation of this rule on a legal show such as Law & Order.

However, under current Massachusetts rules, written communications (including electronic mail) are not considered “conversations” and are  admissible, unless otherwise prohibited by another rule of evidence.  Under the long existing, but never enacted, proposed Massachusetts Rules of Evidence, “conversations” would be replaced with “communications” to cover private written communications between spouses.  Obviously, this evidence is often raised and relevant in divorce proceedings, but can also be relevant in a variety of civil and criminal matters.  Until the day that Massachusetts adopts these Uniform Rules of Evidence, watch what you write to your spouse!      

Tenant Record Keeping

A tenant called me one day because he believed there was a problem with the furnace/heat pump in his unit. He was paying for his own heat, pursuant to a written lease which is legal. When I spoke to opposing counsel, he questioned whether the tenant had given notice in writing. Fortunately, my client had. No matter how friendly you might be with your landlord, make sure that you put your complaints in writing. It does not have to be a certified letter, served by the constable; a simple email will do. You can even call first and follow up with a confirmatory note or email. If you put a note in with your rent, keep a copy of the note. Sticky notes on the rent check will get easily lost and it is hard to prove you actually gave written notice without a copy.

Illegal Apartments

You may have read about that horrible fire in Quincy in 2009 that killed a father and his two young children and left the mother in critical condition. Yesterday, the landlord pleaded guilty and was given a six month to 2 1/2 year prison sentence.

This is a terrible story on many levels. This story is a cautionary tale to landlords. First, the family was living in an illegal apartment in the basement of the multi-family. Even in these difficult economic times, when it seems important to make every penny, do not rent out illegal apartments. State building codes mandate that basement apartments have proper egresses. This means that one access from a Bilco door is probably not sufficient. If you purchased a building, particularly a multi-family, you should not assume that the basement apartment is legal, no matter what the prior owner told you. I had a client a few years ago who purchased a multi-family and had folks living in the basement. She was gravely concerned of the very scenario that came to pass in Quincy. Unfortunately, the tenants would not cease living in the basement area (it was a 1st floor/basement unit) and we had to take numerous steps to ensure they stopped.

Further as I understand the unit in Quincy did not have smoke detectors. It is Massachusetts Law that all units must be equipped with smoke detectors and carbon monoxide detectors. If you are a tenant living in a basement unit, take the time to call your city or town building inspector and find out if your unit is a legal one. In my opinion, no matter how cheap the rent is, it is not worth your personal safety.

Security Deposits Revisited

I have written about security deposits previously, but a recent case I handled causes me to revisit the issue. The Massachusetts statute is quite clear – at the commencement of a lease, the landlord can take the following: first month's rent, last month's rent, a security deposit equal to not more than one month's rent and the purchase and installation cost for a key and lock. That's it. If you take anything more, you, as the landlord are in violation of the statute. In addition, it does not matter what you call the security deposit. I recently had a landlord's attorney try and tell me that the money given to her for a “cleaning deposit” was not a security deposit and therefore did not need to be deposited pursuant to statutory regulations. That cleaning deposit was a security deposit; so is a pet deposit. In this case the landlord took only a $150.00 security deposit; however she had mishandled it and had the matter not been resolved, then my client would have been entitled to $450.00 plus his attorneys fees if it had not been returned on demand.