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.

Mechanic's Lien - Part 3

On my final post on mechanic’s liens, I will get back to the initial subject from my first blog post and that is how one goes about actually enforcing mechanic’s lien. As I mentioned previously, there are multiple steps which are necessary to be taken in order to perfect the mechanic’s lien. The final step in the process is to file a law suit. Once you file a law suit, pursuant to the statute, Chapter 254, a homeowner can ask for an expedited hearing on the validity of the mechanic’s lien if the mechanic’s lien was improperly placed on your property or if the mechanic’s lien is invalid for some other reason.

If you are the contractor subcontractor, you must prove your claim. In other words, you must demonstrate that you performed the work for which you seek payment. As is the case in any suit against a homeowner, the homeowner may raise counterclaims that the work was performed in breach of the contract and/or negligently. The homeowner may also claim that the contractor or subcontractor violated the consumer protection statute, Chapter 93A and the home improvement contractor statute, Chatper 142A.

The mechanic’s lien can be a powerful tool, particularly for subcontractors. However, prior to taking any action against a homeowner, a contractor or subcontractor would be well advised to seek the advice of counsel regarding the various pitfalls of suing a homeowner.