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.