Housing Court Expansion - Quick Note

After many years of only some cities and towns having access to Housing Court, every Massachusetts resident now has access to a Housing Court.  As explained in this chart, there will now be six divisions of Housing Court.  This development has been a long time coming and as a firm who handles many landlord/tenant cases, we are delighted with this development.

Eviction Basics - Tenant Perspective

     Most of the questions we get from residential tenants fall into 2 categories -- either they have received an eviction notice and are not sure what to do or, they are having a problem with their unit and feel the landlord is not being responsive. We'll address eviction now and conditions in our next blog post.

     There are different types of notices to quit that one can receive -- you can receive a 14 day notice to quit, a 30 day notice to quit or a three month notice to quit.

     A 14 day notice to quit is solely for if you, the tenant, did not pay your rent.  If you have a lease, you have a chance to cure.   So long as you pay all rent due, interest and costs of the suit before the day the answer is due, then your lease is not terminated.

     If you do not have a lease, the rules are bit different.  First, you only have the right to cure if you have not received a notice to quit for non-payment of rent in the past 12 months.  Second, if your notice to quit has some required language requiring you to pay within 10 days, then you must do so to preserve your tenancy.  If your notice to quit does not contain the statutorily required language, then you have until the day the answer is due to get caught up on your rent.

     If you do not have a lease, then a landlord can terminate your tenancy for a good reason (you are violating the rules of the building), no reason (this is a no fault eviction) or for a bad reason (you carry a purple handbag or you like heavy metal music).  A landlord, however, cannot evict you for an illegal reason such as your gender, sexual orientation, ethnicity, national origin, race, religion, disability as well as a few others.  If you pay rent monthly, then the landlord must give you either one full month's notice or 30 days, whichever is longer.  If you pay rent quarterly or you do not pay rent at all, then the landlord must give you three full months' notice in the notice to quit.

     A tenant without a lease, even a long time tenant, can be evicted and there is often little that can be done, unless there are condition issues or other defenses or counterclaims available.

Eviction Basics - Landlord Perspective

     We get a fair amount of calls from landlords who want to evict their tenant.  Here are some basic things to keep in mind.

1.  If you have a lease with your tenant, then the tenant has to have violated the lease in order for you to be able to evict them.  If a tenant with a lease has not paid rent, then you send a 14 day notice to quit.  Any other reason requires a full calendar month's notice or 30 days whatever is longer.  If you serve a 30 day notice to quit today, May 4, 2017 - the tenant has until June 30, 2017 at midnight to vacate.  There are some very narrow exceptions to these rules if there is drug use or if it is at the very end of the lease.  If you have either of those situations, call us to discuss.

2.  If your tenant has no lease, the same rules apply for non-payment of rent.  And, the same rules apply for the timing of a 30 day notice to quit.  The only difference is that if the tenant does not have a written lease, you may evict them without cause.  In other words, you can evict a tenant for: 1.) a good reason -- they are smoking or loud; 2.) a bad reason -- you don't like them anymore.  They have green hair; or .3) no reason at all.  HOWEVER, you cannot evict a tenant for an illegal reason.  You can not evict someone because of their race, gender, religion or nationality.  You can not evict someone because they have a child or a disability or secure a government voucher for housing.  

3.  If your tenant is withholding rent because of conditions at the unit, proceed carefully.  If the tenant followed the requirements under the statute to withhold rent and you stake steps to evict him or her, you must show, by clear and convincing evidence, that you are not evicting the tenant in retaliation for his or her complaints.

4.  Do not undertake self help and change locks or move your tenant's property out of the unit.  The law imposes treble damages, plus an award of attorney's fees to landlords to do not follow the prescribed process.

5.  Hiring a lawyer to undertake the Notice to Quit is a wise investment.  We know the timing requirements and services rules.  If the Notice to Quit is not done right, your case can be dismissed and you have to start all over again, losing considerable time in getting your tenant out of the unit.

Tips for Moving Out of Your Apartment

As late spring comes upon us, so does the time of year when leases turnover.  People move for all sorts of reasons -- perhaps you are finishing school and leaving the area, you've gotten a new job or changed your family size.  Whatever the reason, you are packing up and changing addresses.

Here are some tips to avoid legal troubles after you move out of an apartment.

• You are generally required to leave the apartment in broom clean condition.  What that means is that you should leave the apartment in clean condition with no serious damage.  If there is damage, repair what you can.  If you cannot repair it, secure estimates for the cost of the work from a professional.  Make sure the apartment is empty.  Take out the trash, vacuum or wash the floors, clean the bathroom and defrost the refrigerator, empty it and leave it open.
• If you have an arrangement with the landlord or the new tenant to leave something, make sure you have it in writing, 
• Prepare a letter to the landlord that states the date and that the keys are enclosed,  If you have paid a security deposit, notify the landlord of an address where it should be sent. 
• Notify the landlord of your moving plans in writing and be clear.  You don't want the landlord to think you have left and clear out those last remaining items you had planned to come back for.
• Once you have moved everything out,  make a good record of the condition of the apartment. Have a friend who could testify in court come to your unit.  Bring a camera and take a complete set of photographs of the apartment.  Show the walls, the floors and the windows.  Take photos of the interior of the appliances.  Take photos of each room.  You can also take videos.  At least one colleague suggests having a newspaper with the date in each photo as confirmation that the photos could not have been taken earlier than the date of the newspaper.  
• Once you have finished with the photos, turn off all lights and leave the apartment. Immediately return the keys.  If your friend can accompany you, all the better.  Make sure you have that letter you prepared and deliver it to the office.  If you can, get a receipt for return of the keys from someone in the management office.  If you have to mail the keys, mail them in some sort of fashion that you can track the package.  If the landlord has instructed you to leave the keys, then take a photo of the keys.
• Keep a copy of all your correspondence with the landlord.

The return of a security deposit has specific rules.  If you do not get your security deposit back at all or feel that some of it was wrongfully withheld, give us a call and we can evaluate whether you have a claim against your landlord.

Security Deposits and Eviction

Yesterday, the Supreme Judicial Court handed down a ruling in the landlord tenant realm that every landlord and tenant needs to understand.  It ruled that a violation of the security deposit law not only can be a basis for counterclaim as to damages, but is a defense to a landlord's claim for possession.

What does this mean?  It means that if a landlord is attempting to evict a tenant and the tenant claims that the landlord failed to properly handle the security deposit, if the tenant wins on that claim, the tenant can defeat the landlord's claim to evict the tenant and the tenant gets to stay in the unit.

How will this play out in an eviction case?  Let's say the Landlord brings a summary process action to evict the tenant for non-payment of rent.  The tenant counterclaims on a number of claims, including that the landlord did not handle the security deposit properly.  Trial is held and the tenant succeeds in his claim that the security deposit was mishandled and is awarded damages.  The amount awarded for the mishandled security deposit is offset against the outstanding rent.  IF the tenant's damages exceed the landlord's damages, then the tenant keeps possession.  IF the landlord's damages exceed the tenant's damages, the tenant must be given seven days to pay the amount owed to the landlord and if the tenant pays, then the tenant keeps possession.  The same rules apply for a no fault eviction.

Before starting a summary process action, we always ask our landlord clients whether a security deposit was taken and if so, how it was handled.  Landlords must be vigilant in documenting, maintaining and handling security deposits and be prepared to return the deposit in the event that it was not handled properly to avoid tenants succeeding on these types of claims.

Tenants must keep track of the paperwork that they were provided upon move in, and should keep a copy of the check they wrote for the security deposit. If there is any question as to how the security deposit was handled, a security deposit counterclaim should be raised.  If a tenant is withholding rent due to conditions, it is more important than ever to escrow those funds, even though that is not required by law.  A tenant only has 7 days to pay the money into court, including weekends and holidays.  This time frame, ultimately, might be fairly short and the tenant should not have to scramble for the funds.

Do you need a will?

     The answer, as with many things in the law is -- it depends.  Before answering the question with a little more clarity, let me explain what a will is.  A will is a legal document that allows you to designate where your property goes when you die, who you want to be in charge of making sure the property goes where it is supposed to go and appoint guardians and conservators for your minor children.

     If you do not have a will and you die, then your property passes by what are called the laws of intestacy.  In other words, Massachusetts has a law which says how property is distributed if you die and you do not have a will.

    Regardless of whether you have a will, some of your property may  not pass via the instructions in your will.  Insurance policies and retirement accounts pass to the person or people you designated in those documents that you filled out when you bought the policy or with your human resources office or investment broker.  Real estate held as tenants by the entirety or held as joint tenants passes to the survivor listed on the deed.  Bank accounts held jointly also automatically become the property of the other owner of the account.

     If you own nothing in your own name, not even your car and all of your major assets are tied up in jointly held real estate, insurance policies or retirement funds, you may think you do not need a will.  I would still advocate that you should have one anyway.  Why leave it to the legislature to decide where your money should go?  You may also have some personal property such as a wedding ring or fine china that you want to designate to certain loved ones.

     In addition to the will, you may need other estate planning documents such as a durable power of attorney, a health care proxy and one or more trusts.  You should consult a lawyer about what works best for you depending on your finances and your personal situation.

Hiring a home improvement contractor

     It is that time of year -- the "for sale" signs are up, and the crocuses will be up soon.  As we joke in our family, very shortly, the for sale sign comes down and the dumpster appears in the driveway and the building permit in the window.  Whether you are buying a new home and renovating or sprucing up the house you have, here are some things to consider before you let a contractor do work on your house.

• Contractors in Massachusetts should have both a home improvement contractor registration and a construction supervisor license.  Make sure your contractor has both.
• Ask friends, family, colleagues, and neighbors for referrals. Receiving a referral from someone you know is often the best way to find the best person to do the job.  But don't rely solely on the referral.  Do your homework.  
• Make sure that the contractor can do the job for you.  In other words, if the contractor mostly renovates kitchen, he may not be the right person to bump out that dormer on the second floor.
• Ask the contractor for the names of the last 3 projects he has completed or is presently working on. Also, ask to visit one or more of his current work sites.  If a contractor will only give you references make sure that the projects were completed in the last year.
• Find out what kind of insurance your contractor has.  Keep in mind that it is rare that a contractor has insurance that will pay you for a claim that the contractor was negligent.  Most policies exclude poor workmanship from coverage.
• Make sure you have a contract in writing and that the contract includes basic items like payment terms, termination, and language required by Massachusetts law.