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.

"Possession is Nine Points of the Law"

Lord Mansfield said it more than 225 years ago. What does it mean? The expression has changed over time to possession is nine-tenths of the law. Does that make any more sense? If you steal something from the store, you do not acquire ownership.

There have been a variety of interpretations. Some have interpreted it to mean it is every advantage a person can have short of actual right. Others have said that to succeed on a case, you have to have these nine things: (1) a good deal of money; (2) a good deal of patience; (3) a good cause; (4) a good lawyer; (5) a good counsel; (6) good witnesses; (7) a good jury; (8) a good judge; and (9) good luck.

In general, I agree with those nine points. When clients call me about a potential case, I always tell them that litigation is expensive and slow. I review the merits of the case with them and advise them about the merits of their position. You do need to have good witnesses to support your case, a favorable jury and some luck never hurts. A good judge in Massachusetts can sometimes be part of that luck, since judges in Massachusetts state court rotate, so you never know who you will be before on a particular day.

I'll be blogging about various legal issues and I hope that you will think that I provide good counsel and am a good lawyer after you have read some posts.