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. 

How to Evict Someone Who Pays no Rent

   When you read this title, it may make no sense -- who would rent to someone and not charge them rent?  Our office has run into this situation in a number of ways most of them involve family relationships or romantic relationships which have turned sour.  The individual usually has resided at the premises for some time.  They are unfortunate in almost every circumstance and most of the time, our office gets called after the owner of the home has tried, unsuccessfully, to get the other person to leave voluntarily.

     Under these circumstances, there are are only a few options to consider.  First, you could claim that the unwanted person is living at the premises as a gratuitous tenant. If you are staying somewhere and are not providing any consideration for your occupancy, then you are not a tenant and you are not entitled to a notice to quit.  Rather, if your host asks you in writing to leave and you refuse, your host can go to Court and immediately start a summary process action (an eviction action) and seek an order to remove you from the premises.

     So what is consideration?  Most often it is money.  But, keep in mind that consideration does not necessarily have to be in the form of rent.  If your guest is helping the household by paying for utilities, or food, those contributions could be considered consideration.  Those actions could be consideration which would make your guest a tenant.  Once someone is a tenant, they are entitled to either three months or one month notice before starting eviction proceedings, depending on how often the consideration is paid.

        Another option is to argue that your guest is a licensee.  A licensee is a “person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”  Restatement of Torts, Second § 330.  The key to this argument is that the owner of the Property retains legal possession, custody and care of the whole house and of every room.  In other words, this argument works best when a guest is using one particular room in the home, but does not have exclusive access to it.  For example, if someone comes and stays in your guest room, but you enter the room regularly to empty the trash, change the sheets, vacuum or even to get things out of the closet, then your guest does not have exclusive access to the room.  Further, the guest must not be making any financial or other contribution to the operation of the home.  As with a gratuitous tenant, a licensee is not entitled to a formal notice to quit, but rather just a letter asking him or her to leave. 

     Trying to evict without notice comes with risks.  If your guest is not a gratuitous tenant or a licensee, but is a tenant and you have not sent a proper notice to quit, then you will lose your eviction case and have to start all over by providing notice.  You should tread carefully and understand the risks of not providing a formal notice to quit.

     The most conservative, but most time consuming process is to send a formal notice to quit.  If your guest is providing some sort of consideration, like paying the utility bills every month, then you can provide a 30 day notice to quit.  However, if the consideration is not paid as regularly or if you want to argue gratuitous tenancy or licensee and don't want to concede that there is consideration, then you should serve a 3 month notice to quit.  Why you may ask?  The statute provides that you can serve a notice to quit in the interval in which rent is paid or 3 months.

     Whenever you are an owner and need someone to move out, its always best to consult with a lawyer who can help you figure out the proper process and ask you other questions about your possible risk for counterclaims before you start any proceedings.

Finding a Good Landlord

I've written and given talks about how a landlord can find a good tenant, but after reading Boston Magazine's article "Lord of the Sties" last week, I began to think about how a tenant can find good landlord.  It is more difficult for a tenant to research a landlord, because violations from Inspectional Services or the local Health Department are not generally available online.  Here are some questions to ask and some research to undertake.

First, when you look at the apartment, pay close attention to the condition of the common areas as well as the apartment.  Look up at the ceiling -- do you see water stains?  Look at the floor -- is it cracked?  Is there a lot of dirt and garbage accumulated in the corner?  If there is laundry in the building, what does the area look like?  Are there water stains in the basement?

Second, ask questions.  Ask whoever shows you the apartment.  If you see anyone in the hallway, ask whether they like living in the building.  Ask about the landlord.  Ask why the tenant moved out.  Maybe you will get a real answer, maybe not, but you certainly won't know if you don't ask.

Third, if you can go back to the building without the manager or real estate agent, do so.  Because of building security, this may not be possible, but if you are looking in the spring or summer maybe you can find some people leaving the building and, without stalking them, ask some questions.

Fourth, research your landlord.  Find out his or her name and Google that person.  If you have time, go to the Inspectional Services Department or Health Department for the city or town in which the apartment is located and ask to see records for that building.  Anytime there is a violation of the Sanitary Code, the inspectors are supposed to write up the violation.  These records are public record, they just are not online. Further, a town inspector probably knows which landlords are better and which are worse, particularly if you are dealing with a smaller city or town.  Court records may not be as helpful because there are generally claims and counterclaims between landlord and tenant and unless you review the entire file, it may be difficult to determine whether there really are condition issues.

Finally, go with your gut.  If you have a bad feeling about the apartment, then don't rent it, no matter how good a deal it might be.

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.

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.

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.