When Catastrophe Strikes

This week scores of homes in Andover, Lawrence and North Andover were damaged or destroyed in a bizarre series of gas explosions.  Now that the emergency has passed those whose homes were involved are left the reality that their lives have been turned upside down.

As folks start to sort through the situation, here are our thoughts from a legal perspective.

1. If you own your property, call your insurance company.  If you don't remember your insurance company's name and your paperwork is lost, destroyed, or inaccessible, call your insurance agent.  They can help you make the claim.  You can do this by phone, but you'll want to follow up and put the notification in writing.  It does not have to be anything formal, an email will do, but you should have a paper trail.  Even if your home was not harmed, but you had to be evacuated, you may want to check with your homeowner's policy.  You may have coverage for things like hotel stays, meals and the like.

2. If you rent your property and had renter's insurance, be in touch with your renter's insurance company.

3.  Make a claim with Columbia Gas.  Beginning Sunday, September 16, it will be at the Lawrence Public Library everyday from 8am-5pm.

4. People may show up at your property and get you to sign on with them.  Who are these people?  Public insurance adjusters, general contractors, demolition people and others.  DO NOT sign with these folks, at least not yet.  You may need some or all of these tradespeople to help you, but don't just sign with the first person who shows up on your lawn.  Get references from friends, family, and co-workers.  Take the time to investigate each person just as you would if you planned to do a home renovation.

5.  As mentioned above, your insurance should cover living expenses while your home is being repaired or rebuilt.  Check into your coverage as soon as you can with your insurance company so you can find a suitable place to rent.  In the meantime, keep all your receipts for reimbursement.

6.  A public insurance adjuster can be a real help if you feel that your insurance company is not adequately compensating you for your losses.  However, you may not need such a person in this case.  First, if your insurance company is going to pay you your whole policy, then you don't need to pay someone to fight for you.  You are getting the entire value of what you'd be entitled to.  Second, depending on how Columbia Gas handles the situation, your insurance company may end up being minimally involved.  If you do choose to hire one, make sure they are licensed and have good references.

7.  When you renovate a home, you must bring the home up to the current building code.  Here in Massachusetts, most homes that undergo any renovation, planned or otherwise, must have code upgrades.  Code upgrades are covered by separate provisions in your policy over and above the policy amount.  Typically, that amount is 10% of the policy amount, but you'll need to check your policy as the percentage does vary.  In other words, if you have a policy valued at $350,000, and your code upgrade is 10%, you then have $35,000 for code upgrades.

8.  Knowing and understanding how your policy works is critical.  Knowing how any contractor that you plan to hire works is also critical.  Give serious thought to having a lawyer review any contract you plan to enter, especially one with a general contractor.  You can read about considerations of hiring a contractor in an earlier blog post.  Before you sign any contract for renovation or repair work,  you MUST have a clear understanding of the scope of the work.  Are code upgrades included in the price you have been given?  Many times they are not and homeowners are caught off guard when they learn that the property must be re-wired and that the electrical cost provided in the quote by the contractor does not include this work.

9.  If your home is not completely destroyed, take photographs and videos to document your possessions.  You will need to come up with a list of items so you can be reimbursed for your lost personal property.  If, unfortunately, your home was completely destroyed.  Go through your home, room by room and visualize what was in your home and make a list.  Ask others who might have photos or who frequent your home to help you out.

10.  Don't hesitate to get emotional and mental health support.  What happened this week in the Merrimack Valley was traumatic.  Even if you were not physically injured, there may be a psychological impact on you and/or your loved ones. 

Help us, help you

We get many calls a week at our office from potential clients.  We want to help you, either by representing you, or at least by pointing you in the correct direction.  Here are some suggestions to make the most out of your call with us.

• If your claim involves a contract or a lease, please read the lease before you call and understand what it says about your issue.  For example, if you want to terminate a lease or a contract, read it.  What does it say about ending the contract?

• Please tell us what, if anything, you have received from the other side.  We encourage you to call as soon as you receive something from the other party -- a letter, a lawsuit, a notice or whatever else it is.  Most of the time, there are deadlines associated with whatever was sent to you.  The more time we have to respond, the more likely we are to be able to take your case.

• Please be prepared to send us your contract, lease, notice, letter or lawsuit by fax or email or at least have the docket number available for us.

• As soon as you realize there might be an issue, document everything.  Confirm telephone calls in writing and make notes of your interactions with the other side.  You must build your case.  He said - she said cases are difficult, so amass your proof while the problem is going on, rather than having to go backwards.

• If you are a tenant and you have a problem with a condition in your unit, please call your city or town Health Department or Inspection Services Department to visit your unit.  We generally require that your problems have been documented by a city or town official before we will take your case.

• We are not a pro bono legal services agency.  We do charge for our services.  We take some cases on an hourly basis (we charge hourly for our work) and some cases on a contingent fee basis (we take a percentage of what we win).  How we take any given cases depends on a number of factors and the type of engagement is determined on a case-by-case basis.  

• If your claim is less than $7,000 in value, do consider taking your case to small claims court, particularly when you cannot recover your attorney's fees.  Even if your claim is slightly more than the small claims limit, it may be worth considering small claims if you have no ability to recover attorney's fees.

• The website Mass. Legal Help  has many resources available for pro bono parties.

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.

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.