The Most Common Question - Landlords

Recently, a dear friend of mine asked me what the most common substantive legal question is that I am asked as a lawyer? Since I practice in several different areas, I'd have to answer that question, by category of practice area.

In the landlord/tenant realm, the most common question I am asked by landlords is "How do I evict that tenant?  The actual process of evicting a tenant is set out in Chapter 186.  In short, you have to deliver a Notice to Quit, give the tenant a certain amount of notice -- generally either 14 or 30 days -- depending on the reason -- and then, if the tenant does not move out, you commence a summary process action.  However, in that relatively simple scheme lie many pitfalls for landlords.  A tenant may assert counterclaims against the landlord, even if the tenant is behind on the rent.  The timing of each of the steps is particular and documents must be filed with the Court on certain days.  A misstep can result in dismissal of your summary process and then you have to start all over again.

Before commencing the process to evict a tenant, I ask my landlord clients a series of questions to make an initial assessment as to how easy or difficult it will be to evict the tenant.  For example, if the landlord took a security deposit, but failed to handle it properly, the tenant can counterclaim and may receive three times the security deposit, plus attorney's fees.  If the tenant was withholding rent because of problems with conditions at the unit, that issue needs to be explored.  If the landlord was aware of bad conditions at the unit and did not correct them, the Court could find the landlord in breach of the warranty of habitability or the covenant of quiet enjoyment.  If the landlord started to evict the tenant after the landlord was aware of the tenant's complaints, then the landlord may have engaged in retaliatory behavior which also subjects the landlord to damages.

Ultimately, if you end up owing the tenant more money than what the tenant owes you, not only do you have to pay the tenant, but the tenant keeps possession of the apartment.  Before taking any steps to evict a tenant, every landlord should seek professional advice.

93A and Building Code Violations

Last week, the SJC ruled on the Klairmont v. Gainsboro Restaurant case and decided for the first time that a violation of the building code can, in some circumstances, constitute a violation of Chapter 93A.

The case involved the death of a Northeastern University college student in 2007.  He had left the defendant bar to take a call on his cell phone and ducked into the stairwell of the basement of the bar. There, with no door to the basement and no landing, he tumbled backwards down the stairs and later died from his injuries.  The decedent's parents brought suit against the bar on claims of wrongful death and violations of Chapter 93A.  The bar had never obtained a  building permit for the work it performed on the basement stairs.

Affirming the superior court decision, the SJC found that the building code violations did, in this instance constitute a violation of 940 CMR 3:16.  Had the bar obtained a building permit, the bar would have been required to install a door at the top of the stairs, rather than using the vinyl strips it had in place, a landing would have been required and handrails and lighting would also have been installed.  In short, had a permit been obtained the building code followed, it is likely the decedent would not have been been able to access the basement, let alone fall down a flight of stairs.

What makes this case important in the realm of home improvement contractor law is that to date, neither the SJC, nor the Appeals Court has found that a violation of the building code, by itself constitutes a 93A violation.  Those Courts have upheld numerous decisions under Chapter 142A, the home improvement contractor statute.  However, Chapter 142A only applies to home renovation projects and does not apply to new construction.

There is still a disconnect between Chapter 142A for renovations and new construction.  For renovations, a violation of the building code is a per se unfair or deceptive act or practice.  For new construction, even after this case, 93A liability is not automatic.

Are you violating the law with short term rentals?

In my last post, I discussed the benefits and worries of a short term rental from a private owner.  I've been following the story about a New Yorker who participated in AirBnB's program of short term rental and found himself on the wrong side of the law.  Now, AirBnB says it will fight the New York law that got Nigel Warren into hot water.  If you are a someone who does vacation rentals, you need to pay attention to the local ordinances in your town or city, as well as condominium regulations or homeowner association rules.  I recently litigated a case where the landlord was renting to guests on a short term basis until the condominium association informed him that the practice was in violation of the condominium rules.  Some cities and towns require that the owner register the property as one which will be rented out.  For example, Falmouth, Massachusetts requires homeowners to obtain a permit from the health department before renting out their dwelling.  You do not want to run afoul of a local law and find yourself fined or worse, criminally charged simply because you were trying to cover the cost of that second mortgage.

The Dangers of Not Doing Your Homework When Hiring a Home Improvement Contractor

Kyle Buckminster of South Grafton was recently ordered to pay $111,000 in restitution, along with $35,000 in civil penalties, and $12,600 in fees based upon four consumer complaints to the Office of Consumer Affairs and Business Regulations ("OCABR") by consumers who complained that Buckminster failed to comply with home improvement contracts and failed to finish the work contracted.  Buckminster's home improvement contractor license was revoked nearly 13 years ago, according to Attorney General Martha Coakley.  Buckminster allegedly operated under numerous business names throughout the last several years.

When hiring a home improvement contractor a homeowner should be sure to do his or her homework regarding the qualifications and reputation of the contractor, including checking that the contractor holds the necessary licenses in Massachusetts.  In Massachusetts, home improvement contractors are required to register with OCABR.  A searchable database of all registered home improvement contractors is located here and gives valuable information on whether any complaints have ever been filed against the contractor.

The fate of the homeowners damaged by Buckminster may have been different if they had done a simple search on OCABR's database.  We recommend that if you are checking out a contractor, don't just search on the registration number the contractor gives you.  Unfortunately, we are aware of instances where contractors have had judgments against them and been able to obtain a new number.  Make sure you search on both the name and number.  The database can be searched by the home improvement contractor number or the name of the contractor.  When searching on a contractor, the owner's name should also be searchable with the OCABR.  If your contractor is missing from this database or has a license listed as revoked or lapsed, then proceed with caution.  Quick, easy homework can save you a long, arduous journey later.

Short Term Rentals

When going on vacation this summer, some of us will rent houses, condominiums or apartments for a short period of time -- perhaps a week or two -- instead of a hotel room.  Personally, I love renting a place with a kitchen.  It gives my family the opportunity to eat breakfast without wasting time or money on a restaurant.  At night, if we are too tired to go out or the kids are cranky, we just order a pizza or find the local supermarket and pick up a roasted chicken.

However. if something goes wrong while you are renting, you can't just call the font desk.  So here are some things to consider.  First and foremost -- do your homework.  Check a variety of home rental websites for reviews and comments, like www.homeaway.com  and www.vrbo.com  If you can get the owner's name before committing, google them.  If you are going to an unfamiliar area, learn what you can about the neighborhood.  Unfortunately, in some cities, one city block is safe and the next is not.  Next, be clear on what is being provided and what is not.  Find out if you have to bring your own towels or sheets and whether the kitchen comes stocked with any condiments.  Make sure you know the procedure to deal with any problems that might arise be it minor -- a clogged drain -- to major -- the power goes out.  If possible, pay on a credit card, so you have some possible remedy to complain about the charge if you really feel like you did not get what you bargained for.  On that front, if you arrive and the place is not as portrayed, complain immediately and follow up in writing (email is fine).  If ultimately, you end up going to court, the judge is not going to think highly of your complaints if you stayed somewhere for two weeks, without raising a single issue and then you go home and decide to complain.  Be respectful of the property at which you are staying.  Turn off lights when not in use and if you break something, let the owner know.  I think that most of the owners that rent their homes to cover their expenses and may earn a little extra cash.  They want you to be pleased because today more than ever, word of mouth if key. 

Finally, rentals of less than 100 days are not covered by the landlord tenant laws in Massachusetts, so don't expect protection of your security deposit and the like.

Building Permits, Who Needs Them?

     The answer is:  You do.  And by "you" I mean both the homeowner and the contractor.

     Sometimes, I run into the situation where someone, either the homeowner or the contractor, is suggesting that the work should be performed without obtaining the appropriate  permits from the city or town.  This is a bad idea, regardless of whether you are the homeowner or the contractor. 

     If you are the homeowner, a contractor must pull a permit, otherwise, you will be ineligible for the guaranty fund available through the Office of Consumer Affairs.  Having a building permit, also ensures that someone will come and look at the work performed, at least in a cursory fashion.  Now, a word of warning here.  Homeowners must understand that the inspectors who come to your house from the town are not guarantors of the work the contractor performed.  They are not going to spend three hours at your house looking at every nook and cranny to make sure that the work was done in a good and workmanlike manner.  By the same token, contractors must understand that just because an inspector signs the building permit, the inspector is not signing off on your work that it was performed correctly.

     So, aside from the guaranty fund, why else do you need one?  It is the law and if you do not get one and the town or city in which you reside finds out, they can make you get one retroactively, charge you a penalty or in some circumstances make you undo that which you did.  The building inspector looks at the project while the homeowner’s walls are open and can check the framing  to make sure that the building is not going to fall down.  If you are a contractor, you want to insist on the permit for similar reasons.  It is the law and if the project goes bad down the road and you do not have a permit, you can bet that the homeowner (or their counsel) will make a big deal out of the fact that there is no permit.

More on Lead Paint

Last year, we wrote about  the landlords’ obligations to disclose the presence of lead paint in rental units and the penalties for failing to disclose.  Click here to see our earlier post.  In March, the Attorney General Martha Coakley’s office announced a $75,000.00 settlement with a landlord based on discrimination and retaliatory practices by the landlord in renting units with lead paint.  The settlement is reportedly the largest fair housing settlement to date while Martha Coakley has held the Attorney General position.

The landlord, who is an attorney, allegedly attempted to evict tenants with young children because he did not want to de-lead the unit.  Additionally, the Attorney General’s office alleged that the landlord failed to properly disclose the presence of lead paint in the rental units, rented units with lead paint to tenants with young children, refused to repair unsafe and unsanitary conditions, and retaliated against tenants when they reported violations to the local boards of health. 

As this recent settlement demonstrates, anyone, even an attorney,  can run afoul of the lead paint laws.  In this case, the landlord had not only civil claims against him, but claims by the the Attorney General’s office, as well.  In our prior blog post regarding lead paint, by the U.S. Environmental Protection Agency fined several management companies for its practices.  There is no shortage of ways landlords can find themselves in a bind when they fail to heed their obligations under the lead paint statutes.

Housing Court Funding

I recently had the opportunity to attend a Judicial Forum of the Housing Court where the panel consisted of five Housing Court judges.  As its name implies, the Forum was geared specifically toward the Housing Court and the challenges and trends facing the Housing Court over the last year.  The judges discussed some interesting issues about hoarding and certain court rules which need to be updated.  However, Chief Justice Steven D. Pierce's discussion regarding  the funding of the Court was eye-opening and alarming.    In 2008, the Legislature approved a substantial budget cut for the Housing Court.  Each year since 2008 the budget has increased; however, the 2013 budget is still smaller than 2007 and earlier – and the number of cases filed has increased over that time period.  Moreover, the Housing Court has lost a considerable number of employees due to retirement, death, or otherwise, but has only been able to replace employees deemed essential such as clerk-magistrates.  Unfortunately, the budget cuts and staffing challenges are not unique to the Housing Court, but instead are merely representative of across the board spending cuts within the judicial branch of government. 

Even under the best of circumstances, litigation can be long and expensive.  This past year, we have started to explain to clients that the cases will be even longer.  We now regularly explain the effect that fewer personnel has on their case. We see the effects of these budget cuts every day.  Cases are moving more slowly, decisions are taking longer, and clerks are overburdened.  The courts are doing the best under the circumstances, but the wheels of justice seem to be moving  more slowly than we would like.

Curing a Defective Notice to Quit

     I was in Court this morning, representing a tenant on a motion to dismiss.  Our claim was that the landlord's Notice to Quit was defective in several ways, thereby necessitating dismissal of the summary process.  One error was that the tenant's name was incorrect.  Landlord's counsel conceded that the name was incorrect, but asked to cure the defect, rather than a dismissal.  Fortunately for my client, but unfortunately for landlords is the only way to cure a defective Notice to Quit is to start all over again.  The summary process was dismissed.

     What is to be learned from this?  First, if you are the landlord, make sure you have your i's dotted and t's crossed when you serve a notice to quit.  In this case, at least in my opinion, there were numerous problems with the Notice to Quit and the summary process.  But really, you only need the judge to agree with the tenant on one of the defects and the case will be dismissed.  Second, if a legitimate defect is brought to your attention by the tenant, then dismiss the case.  We waited in Court for more than two hours to be heard today because of the Court's schedule.  During that time, clients missed work and attorneys accrued time.  Third, if you are a tenant and are served with a Notice to Quit, take a good look at it.  Is it procedurally correct?  Was it served properly?  Some types of leases, particularly Section 8 leases require that the landlord give additional notices.  If those prerequisites were not followed, it the Notice may be invalid.

Our Landlord Seminar is Back!

Please join us on April 10, 2013 at 7:00 pm to hear us speak about how to be a smart residential landlord.  Space is very limited so sign up here:  http://tanowitzlaw.eventbrite.com  We look forward to seeing you.

Snow Removal, Who is Responsible?

   Winter finally found us her in New England after its complete absence last year and a late start this year.  This weekend, the meteorologists are predicting our third snowstorm in as many weekends.  The question is, who is responsible for the shoveling?  The tenant or the landlord.  The answer is, it depends.

     In most instances, the landlord is responsible for keeping the "exterior stairways, fire escapes, egress balconies and bridges free of snow and ice."   However, if a unit has an independent entrance/exit which is not shared with other occupants, then the Landlord can require the tenant to shovel that particular egress, so long as it is in a written lease. In effect, if you are a Landlord renting a whole house or perhaps if you have a multifamily where each unit has its own separate entrance/exit, then you can require your tenants to shovel their own walks.  Otherwise, you, as the landlord have that responsibility.

    This obligation, however, does not appear to extend to any parking area.  However, as a practical matter, you may want to hire a plow service (and make sure you factor that into the rent when you figure out how much to charge) to avoid disputes between tenants, make sure the snow is not dumped into the street and generally to keep tenants happy.

Landlords, Tenants and Carbon Monoxide Detectors

    There have been a number of news reports about carbon monoxide poisoning due to generators running during the storm, blocked heating exhaust pipes and blocked car exhaust pipes.  There is no question that carbon monoxide is an odorless gas that can quickly overwhelm a person.

    Landlords are obliged to provide both carbon monoxide detectors and smoke detectors under the State Sanitary Code.  In order to determine the requirement(s) for your building, you should be in touch with your local fire chief.  Aside from the fact that violations of the Sanitary Code can lead to monetary sanctions, the failure to have properly installed detectors could lead to deadly consequences -- a burden no landlord should want on his or her conscience.  Landlords should check to make sure that the furnace exhaust and the dryer exhaust is not blocked by snow.  This is a simple and easy fix that everyone should undertake anytime there is a significant snowfall.

   If you are a tenant make certain that you have carbon monoxide detectors and check your exhaust vents.  Don't wait for the landlord to make his or her way over to you.  If you don't have carbon monoxide detectors, be in touch with your landlord immediately.  If your landlord can't attend to it quickly, then notify him or her in writing that you will be purchasing the detectors and deducting the cost from your rent. Alternatively, call your local inspectional services department or health department.  Check your exhaust vents as well.  If they are blocked and you can do so, clear them and let your landlord know.  If they can't be easily accessed due to brush or excessive snow, let the landlord know.  I'm not usually this dramatic, but your life may depend on it.