Bill Sent to Study Committee, Effectively Killing It
After intense lobbying on both sides by property owner groups and tenant rights activities, lawmakers sent the Jim Brooks Community Stabilization Act to study effectively killing it for this legislative session. The Act, a Home Rule Petition requiring full State House approval, would require that a landlord or foreclosing owner provide a city-approved “notice of basic rights” and a list of tenant assistance organizations simultaneously with the issuance of a notice to quit/termination or notice of lease renewal/expiration. It also provided that tenants of foreclosed properties could only be evicted for certain “just cause” reasons. The Boston City Council had originally approved the measure in November 2017, but state lawmakers had to approve it as well. Property owner groups were vehemently opposed to the measure, asserting that it was actually a return to Rent Control.
The reactions by proponents and opponents of the bill were naturally mixed on social media. Boston City Councilor Ayanna Pressley, a supporter of the measure, said that the bill “was not supported by the Judiciary Committee…but where it stands now is not promising.” The bill was vehemently opposed by property owner groups, such as Masslandlords.com and the Small Property Owners Association, which mounted a strong coordinated campaign to lobby legislators.
New Judges to Serve Expanded Statewide Jurisdiction
In the 2018 Fiscal Year budget, the jurisdiction of the Housing Court expanded to full state-wide coverage, and with it, the Legislature created five new judgeships. Earlier this week, Governor Charlie Baker nominated five attorneys as new Associate Justices to the Housing Court:
Donna T. Salvidio of Worcester nominated as a Circuit Justice Neil K. Sherring of Westwood nominated as a Circuit Justice Joseph L. Michaud of Dartmouth nominated to the Metro South Division Irene Bagdoian of Westborough nominated to the Metro South Division Gustavo A. del Puerto of Salem nominated to the Northeastern Division
Each judge must be approved by the Governor’s Council before stepping onto the bench. While I do not know all the nominees personally, this group appears to have very solid experience and background. I look forward to seeing them before the Governor’s Council and hopefully on the bench.
Donna Salvidio currently leads the Condominium Law Practice Group within the Real Estate department at Fletcher Tilton PC in Worcester. Click here for her Firm Biography. Her work covers a full spectrum of real estate related matters, with particular emphasis on residential housing law, condominium law, property management, commercial leasing and transactional work. She has over 27 years of experience in residential housing law including landlord-tenant law and the development of affordable housing. Attorney Salvidio served as Board President of Worcester Community Housing Resources, Inc., a non-profit which creates and preserves affordable housing opportunities for low to moderate income households, and is currently a member of its Property Development and Management Committee. She also served on the Housing Court Committee of the Worcester County Bar Association and was a Commissioner of the Worcester Civic Center Commission for 10 years. Attorney Salvidio received her Bachelor’s Degree cum laude in Psychology from the University of Vermont and her Juris Doctor cum laude from Suffolk University Law School where she served as an editor of the Suffolk University Law Review. She currently resides in Worcester, Massachusetts.
Neil Sherring has 25 years of experience practicing law. Since 2001, he has been a partner in his own law firm Dakoyannis & Sherring, LLC, where he concentrates on landlord tenant and real estate related cases, personal injury claims, insurance disputes, and employment discrimination claims. Previously, he was a trial attorney at Mintz, Levin. Attorney Sherring also has a wealth of experience representing the Commonwealth as an Assistant Attorney General, Assistant District Attorney for the Northwestern District of Massachusetts, Massachusetts Superior Court Law Clerk and Hearing Officer for the Division of Insurance. He has served as the Deputy Commissioner of the State Athletic Commission and has been a frequent lecturer at Suffolk University and Curry College. Within his community, he is a current Board Member of the Westwood Community Chest, where he has also served as President and Vice President. He earned his Bachelor’s Degree from Curry College and his Juris Doctorate from Suffolk University Law School. He resides in Westwood with his family.
Joseph Michaud has been practicing law for 25 years. He is currently an attorney partner at his own practice, the Law Offices of Joseph L. Michaud, where he specializes in residential and commercial real estate transactions and landlord-tenant matters. Attorney Michaud is also a decorated member of the United States Army, having served on active duty intermittently for the last 30 years as a Lieutenant Colonel in the Judge Advocates General Corps. He first enlisted as a Tanker in 1986, and went on to serve in both Desert Storm and Operation Noble Eagle. Attorney Michaud has earned 3 Meritorious Service Medals, 6 Army Commendations, a Joint Service Achievement Medal, a National Defense Medal, a Global War on Terrorism Medal, and an Outstanding Volunteer Medal. Attorney Michaud continues to serve his local community as Chair of the South Coast Chamber of Commerce in New Bedford and as a Board Member of the Veterans’ Transition House. He graduated with his Bachelor’s Degree from University of Massachusetts in Amherst and received a Master’s of Arts from Sam Houston State University. He earned his Juris Doctorate from the Franklin Pierce Law Center at the University of New Hampshire. Attorney Michaud is a lifelong resident of Dartmouth, MA. In his spare time, you can find him playing bass guitar in a local band.
Irene Bagdoian has practiced law in the Commonwealth for nearly thirty years. During the last decade, she has been a solo legal practitioner at her own law firm in Brockton, representing individuals and businesses in civil litigation matters related to housing, foreclosure, real estate, and consumer protection. She was one of the founders of the Brockton Housing Court Lawyer for the Day Program, which provides advice to unrepresented landlords and tenants, and has organized educational programming for volunteer lawyer programs in collaboration with the Southeastern Housing Court for the past nine years. Attorney Bagdoian is a member of the Steering Committee for the Tenancy Preservation Program and a Board Member of the Justice Center of Southeast MA. She graduated with her Bachelor’s Degree from Wheaton College in Norton, MA and received her Juris Doctorate from Boston University School of Law. She resides in Westborough with her husband, Paul Sangree.
Gustavo del Puerto has nearly 25 years practicing law in Massachusetts. He currently serves as Assistant Clerk Magistrate in the Northeast Housing Court. Prior to that, he practiced as a Senior Associate at Sassoon & Cymrot in Boston where he focused on commercial litigation, including the resolution of contract, business, and construction disputes, tort matters and the protection of creditors’ rights. Attorney del Puerto served as Counsel for the Chelsea Commission on Hispanic Affairs, Inc., where he also provided pro-bono work for immigration law. Attorney del Puerto earned his Bachelor of Arts from the College of the Holy Cross, and his Juris Doctorate from Northeastern University’s School of Law. He currently resides in Salem, MA.
Landlord Attorneys Active In Court and In Legislature On Rent Escrow Issue
Massachusetts Lawyers Weekly Reporter Patrick Murphy just did a great write up of the current state of Rent Escrow in the Legislature and at the Housing Court. As reported by Mr. Murphy, attorneys representing residential landlords (like myself) are hopeful that this is the year the Legislature closes what is perceived to be a loophole that allows tenants to remain in possession of the premises rent-free during eviction proceedings. Bills moving through both the House and Senate would require judges to order tenants to pay rent into escrow during the pendency of a case upon motion by property owners. In the meantime, Housing Court judges including Marylou Muirhead (pictured below) are becoming more receptive to approving motions for rent escrow filed by landlord attorneys.
Free rent trickery?
As I’ve written on this Blog, the Massachusetts eviction system contains a loophole that allows tenants to avoid paying rent while a dispute is pending. Specifically, they point to G.L.c. 239, §8A, which authorizes tenants to raise defenses or counterclaims — such as those alleging the landlord’s breach of the terms of the lease or housing code violations — justifying the withholding of rent. In terms of the escrow of rent, the statute provides that the court, after hearing the case, “may” require the tenant to pay to the clerk of the court “the fair value of the use and occupation of the premises,” less any amount awarded on the tenant’s claims.
We call this the “Free Rent Trick” — where the tenant will stop paying rent and file a complaint with the local board of health over minor code violations, such as a broken window screen. Rent accrues as the landlord gets around to hiring a lawyer to file a 14-day notice to quit the premises and commence summary process. Three to five months of rent may have accrued before a case is typically heard, and tenants can extend the process another three to six months, depending on the court, by requesting a jury trial.
Rare win for landlords?
As Mr. Murphy highlighted in his article, I recently succeeded in obtaining a rare rent escrow order in Worcester Housing Court in a case in which months of back rent had accrued before I ever became involved in the matter. In Eda Ema, LLC v. Kirby, Judge MaryLou Muirhead (pictured right) ordered the tenant to begin making escrow payments of $975 a month, reflecting the terms of her lease. The tenant owed $12,675 in past due rent at the time the case was filed in January.
The case points to the plight of many landlords even if they are ultimately successful in obtaining a judgment against the tenant for back rent. Such judgments are often uncollectible. However, the escrow order I obtained in Eda Ema is a rarity in my experience, with several Housing Court judges and most District Court judges still resistant to ordering such relief.
Pending Rent Escrow Bills
Putting an end to the so-called “free rent trick” in Massachusetts is long overdue, according to my colleague Brighton landlord attorney Emil Ward who has drafted Senate Bill 778, calling for mandatory rent escrow.
Another bill, House rent escrow bill, H. 980, was filed in January 2017 by Middlesex Democrat Rep. Chris Walsh. The bill would amend G.L.c. 239, §8A, to provide that “the court after hearing shall require” the tenant to pay into escrow “the amounts due for use and occupancy, calculated according to the fair market value of the premises.”
Walsh said his bill is intended to help small landlords, many who have complained to him in the past about being victimized by the free rent ploy. He said he has heard complaints of tenants who knew how to “work the system,” invoking housing regulations to “essentially stop paying rent.”
While we haven’t been successful in getting a rent escrow bill passed, I’m hopeful that Legislators are finally listening to landlords’ legitimate concerns that the eviction playing deck is stacked against them.
As always, I will keep tabs on these developments.
No Triple Damages Although Landlord Failed To Provided Sworn Statement of Itemized Damage at Move Out
When a tenant leaves damage to a rental unit at move out, the Massachusetts Security Deposit Law allows a landlord to deduct the cost of repairs from the security deposit, provided the landlord issues a sworn statement of itemized damage along with repair estimates within 30 days of the move out. I’ve seen many landlords attempt to comply with the law only to be on the receiving end of a Chapter 93A letter from a tenant attorney demanding triple damages for messing up this requirement. This is one of many reasons why I advise my landlord clients to decline taking a security deposit from tenants.
Last week, the Supreme Judicial Court had the opportunity to clarify this particular provision of the law in the class action case of Phillips v. Equity Residential Management LLC. In this case, Equity Residential, attempted to deduct $968.08 in carpet and other cleaning charges from a tenant’s security deposit. However, Equity failed to provide the required itemized statement sworn under the pains and penalties of perjury. The tenant filed a class action seeking return of the deposit, triple damages, and attorneys’ fees under the statute.
I won’t bore you with all the technicalities of the Court’s ruling, but the SJC came down on the landlord’s side on this case, holding that while the landlord mistakenly failed to provide the sworn statement the law was clear that this is not one of the situations where triple damages is the proper remedy. (Equity did have to return the tenant’s security deposit in full). Yes, I know a rare victory for property owners in Massachusetts…
Again, while this case came out on the landlord’s side, it demonstrates the risks involved in failing to comply strictly with the Massachusetts Security Deposit Law. As a reminder, if a landlord is claiming that a tenant caused damage at the end of the tenancy and wants to deduct it from the deposit, it must provide within thirty days “an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.” The law also requires that landlord provide a “statement of condition” at the beginning of the tenancy, so that damage can be verified. Only then will a landlord be allowed to deduct repair costs from a security deposit.
Without much publicity or property owner input, the Massachusetts Department of Public Health has rolled out proposed revisions to the State Sanitary Code which provides minimum standards of habitability for all rental housing units across the state. There are some significant changes which will definitely impact both small and large property owners/landlords.
Integrated Pest Management Plan
The proposed rules requires that any rental property with 4 or more units implement an Integrated Pest Management Plan with pest inspections conducted at least every 4 months. Owners are required to maintain a record documenting the following activities conducted within the residence including inspection results, complaints filed by occupants, the date, location, product name, and name of any person applying pesticides, and modifications to the original IPM plan, all of which should be available upon request by the board of health.
Mold, Mold, Mold
DPH is on a mission to eradicate mold in rental housing. The new rules place landlords responsible to remove all possible signs of mold in apartments as well as any areas of “chronic dampness.” As every landlords knows, tenants are often the ones who cause mold growth by not using proper ventilation or having poor hygiene. Boards of health are now authorized to conduct mold-specific inspections and conduct air quality tests.
Bathroom Exhaust Fans
The new rules require exhaust fans in every bathroom whether or not there is a window. Previously, landlords did not have to install a fan if there was a bathroom window.
Central Heating Systems
Property owners are required to provide a “central heating system” for all units. Fireplaces, woodstoves, pellet stoves, portable electric space heaters and unvented propane or natural gas-fired space heaters will not meet the requirements of this new standard. This will impact rental housing in the outer counties. Also prohibited from use in any residence are (1) any portable space heater, parlor heater, cabinet heater, or room heater that has a barometric fed fuel control and a fuel supply tank located less than 42 inches from the center of the burner, (2) heating appliances adapted for burning propane, kerosene, range oil or number one fuel oil, and (3) Portable wick type space heaters.
Code Violations/Tenant Remedies
Of course, any violations of the State Sanitary Code entitles tenants to withhold rent under state law. There can also be Chapter 93A/Consumer Protection liability which carries the prospect of triple damages and payment of tenant attorneys’ fees. Code violations can severely de-rail any eviction action so landlords must ensure that any code violations are quickly and properly addressed. Without the passage of a rent escrow law, landlords remain at risk of tenant abuses of the rent withholding statute.
Once thought to be dead, the Boston City Council yesterday approved the first ever “just cause” eviction act in Massachusetts, known as the Jim Brooks Community Stabilization Act. The Act, which opponents dubbed a return to rent control, requires landlords owning 6 or more units to file a notice to quit/termination with the newly formed Office of Housing Stability, prior to starting an eviction. However, after intense lobbying by property owner groups, the council passed a watered-down just cause eviction provision which only applies to foreclosing owners/lenders. The vote was 10-3 in favor of the Act, with City Councilors Bill Linehan, Sal LaMattina, and Timothy McCarthy voted no.
City Rights Notice
The Act requires that a landlord or foreclosing owner provide a city-approved “notice of basic rights” and a list of tenant assistance organizations simultaneously with the issuance of a notice to quit/termination or notice of lease renewal/expiration. In the case of a lease non-renewal or expiration, landlords and foreclosing owners must provide another “City Termination Notice” to the tenant and the City, at least 30 days prior to starting a summary process (eviction) action. All of these notices must be filed with the summary process case, and the failure to provide these notices will result in eviction cases being dismissed. As with any notice to quit, the best practice is to have such notices served by licensed constable or deputy sheriff.
“Just Cause” Grounds for Eviction
The original version of provided that landlords could only evict tenants for nine (9) specified just cause reasons. However, the final version passed only applies to foreclosing owners/lenders, not to ordinary landlords. Some of the just cause reasons include
Nuisance/damage to unit
Illegal activity such as drug use
Refusal to pay reasonable rent
Failure to provide access.
Owner requires premises for housing for family member
What’s Next?
It’s not all bad news for property owners, however. The bill faces more hurdles before becoming law. It is a Home Rule Petition, so it must be approved by the entire State Legislature before it becomes law. That may prove to be quite difficult for proponents. The bill may also face court challenges because, as opponents argue, it’s an unlawful return to rent control, which was outlawed in the 1980’s, and fundamentally alters existing private contracts and the very nature of a tenancy at will relationship.
The Act is also somewhat of a compromise between property owners and tenant groups. Tenants wanted to require landlords to submit to mediation for rent hikes of more than 5%, but were not able to get support for it among city council members. Tenant groups also pushed for prohibitions on evicting elderly or disabled tenants and long term renters with children in the school system. The Mayor rejected those ideas as well.
Additionally, small landlords owning 6 or fewer units are exempt from coverage as are owner-occupants of multi-family dwellings and Section 8/federally subsidized housing providers.
Governor Baker has earmarked $750,000 in the new state budget towards the Housing Court Expansion plan, clearing the way for state-wide coverage for the Housing Court.
Senator Karen Spilka (D-Ashland), a sponsor of the Senate Bill for the expansion, confirmed to me directly that it is a “done deal.”
Likewise, Chris Walsh (D-Framingham) commented in the Framingham Source that “recognizing that one-third of the residents in the Commonwealth currently do not have access to a Housing Court, working with the Massachusetts Law Reform Institute and other groups, we crafted legislation to expand the Housing Court across the entire state, that has been supported both by the entire Framingham legislative delegation and more than 50 legislators.”
Expansion proponents asked for $1 Million in new funding, but Gov. Baker cut that down to $750,000. The Housing Court will likely need more funding for the additional judges and staff to implement state-wide coverage. The initial funding, however, should allow the Housing Court to start rolling out new sessions in Middlesex County and other unserved areas.
For more information on the Housing Court expansion proposal, please see my other posts here.
Proposal Moving Through State House, But Funding Remains a Question
The Housing Court expansion plan to have statewide coverage has been gaining political momentum, but whether the plan will receive the long-term funding it needs to make it a reality remains a question mark. Legislators have filed two bills in the House and Senate which are co-sponsored by over 75 legislators. The bills were before the Joint Judiciary Committee on May 2, and are reportedly moving through the State House. Housing Court Chief Justice Timothy Sullivan hopes that the expansion will be in place by January 2019.
The expansion would provide currently unserved Middlesex County with Housing Court jurisdiction and reorganize the remainder of the system into 6 new geographic divisions. A new Central Division would serve Framingham, Marlboro, and other Middlesex county towns plus all of Worcester County. A new Northeastern Division would serve all of Essex county plus several towns along the Route 128 corridor including Waltham, Burlington, Lexington, Watertown, and Woburn. The new Eastern Division would be the largest, serving all of Suffolk County plus Somerville, Brookline, Cambridge, Newton, Medford, Arlington, and Belmont. A new Metro South Division would serve Norfolk county towns plus the Brockton area. The new Southeastern Division would serve the Bristol-Plymouth County/South Coast area (Taunton, Fall River, New Bedford), the Cape and Islands. The Western Division would serve the 4 western counties. The new sessions would be “mobile” and travel to existing district courthouses in addition to holding sessions in present facilities such as the Worcester County Courthouse and Edward Brooke Courthouse in Boston.
Landlords would still have right to file an eviction case in district court, but tenants would have right to transfer to Housing Court. So effectively the vast majority of eviction cases would wind up in the Housing Court.
The expansion bill increases the total number of judges to 15, up from 9. Of course, each new justice would cost $185,000/year under the controversial pay increase recently approved by House Leader Stan Rosenfeld, over Gov. Baker’s veto. The total cost of the expansion proposal could reach $2.4 Million or more. It appears that funding remains the primary obstacle to getting this expansion passed.
I would support the Housing Court expansion if the Legislature finally approves the long-awaited Rent Escrow bill requested by landlords to level the playing field in notoriously tenant-friendly Massachusetts. I believe that would be a fair trade-off for both landlords and tenants.
Just a quick note about yet another recent case demonstrating the backwards nature of Massachusetts landlord-tenant law. In CMJ Management Company v. Wilkerson, the Appeals Court ruled that a tenant could be evicted from Section 8 housing because her grandson shot and injured a neighbor child with a BB gun. Sort of reminds me of the movie the Christmas Story — you’ll shoot your eye out kid!
But — hold on — the court ruled the tenant would not be evicted because the housing court judge made a legal error by striking the tenant’s jury trial because she (not being represented by a lawyer) did not file a pre-trial memorandum. The net result is that the landlord is back to the starting line — the case goes back to the Boston Housing Court for a retrial, some 3 years after the eviction case was originally filed. Only in Massachusetts!
Questionable Ruling Goes Against Established Law That Foreclosed Owner Not Entitled to Notice to Quit
In a recent post-foreclosure eviction case before the Southeast Housing Court, Justice Anne Kenney Chaplin issued a head-scratching ruling that a third party purchaser at foreclosure was required to issue a 90 day notice to quit to the former owner. The ruling goes against the generally accepted rule of law that a foreclosed owner still in occupation of the mortgage premises is merely a tenant at sufferance, not entitled to any notice prior to an eviction. The case is Lenders Commercial Finance LLC v. Pestilli, 16-SP-03779, embedded below. This is a very troubling ruling which has the landlord-tenant legal community buzzing.
Foreclosed Owner Squats For 6 Years
In 2011, Bank of America foreclosed upon Bruce Pestilli’s home in Whitman, but Mr. Pestilli remained in occupation of the premises. As a side note, Mr. Pestilli filed a federal lawsuit challenging the foreclosure which was ultimately dismissed. Several years later in 2016, Lenders Commercial Finance LLC purchased the property from Bank of America and issued Pestilli a standard 30 day notice to quit, although such is not typically required in a post-foreclosure eviction. Lenders Commercial then filed an eviction action in Southeast Housing Court.
Pestilli’s lawyer again challenged the validity of the foreclosure during the eviction case. Lenders Commercial filed sworn affidavits and certified documents demonstrating that the foreclosure was conducted lawfully. Judge Anne Kenney Chaplin heard the matter on a motion for summary judgment.
Judge Rules 90 Day Notice to Quit Required
Although the legal arguments were centered around the foreclosure title issues, Judge Chaplin raised the issue concerning the notice to quit on her own even though the tenant’s attorney did not even make that argument during the case. Judge Chaplin held that a 90 day notice to quit was required under M.G.L. c. 186, § 12 because there was no evidence that there was any agreement between Lenders Commercial and Pestilli to pay rent. Well, that’s not surprising because the vast majority of post-foreclosure occupants have not made any payments to anyone for a long time! Indeed, in this case, Mr. Pestilli has not made any mortgage or rent payments for some six years.
Did Judge Make Major Legal Error?
The ruling goes against long-standing Massachusetts case law concerning the rights of third party purchasers of foreclosed properties. Massachusetts courts have universally held that after default and foreclosure, a former mortgagor is a tenant-at-sufferance, i.e., an occupant who has lost his or her title to the premises with no further right to possession. Further, courts have held that tenant-at-sufferance are not generally entitled to a notice to quit.
If this ruling is followed by other judges, it could give foreclosed owners another tactic to delay post-foreclosure evictions. Landlords and their attorneys should be aware of this ruling and prepared to push back that former owners are tenants at sufferance and not entitled to a 90 day notice to quit.
A Step Back To Rent Control Or Solution To The Affordable Housing Crisis?
Citing skyrocketing rents and lack of affordable housing — and over the vociferous objections of property owners — Boston Mayor Marty Walsh has sided with pro-tenant groups and has formally submitted a home-rule petition to the Boston City Council to create wide-ranging “just cause” eviction protections for all Boston tenants. Harking back to the days of rent control, the petition, named the Jim Brooks Community Stabilization Act after a recently deceased Roxbury housing advocate, prohibits virtually all no-fault evictions in favor of evictions only for certain enumerated “just cause” grounds. The law also requires landlords to file a notice of termination with the newly formed Office of Housing Stability prior to starting an eviction. In a state which is already extremely pro-tenant, this new law will make evicting tenants even more difficult and cost prohibitive, and may also affect owners’ rights to raise rents and sell rental property in the City of Boston.
“Just Cause” Grounds for Eviction
The petition (embedded below) provides that landlords may only evict tenants for nine (9) specified reasons:
Non-payment of rent.
Violations of lease provisions
Nuisance/damage to unit
Illegal activity such as drug use
Refusal to agree to lease extension or renewal
Failure to provide access.
Subtenant not approved by landlord
Landlord requires premises for housing for family member
Post-foreclosure and occupant refuses to pay fair market rent
Middle Ground?
It’s not all bad news for property owners, however. The Walsh bill is a compromise from what tenant groups had pressed for. They wanted to require landlords to submit to mediation for rent hikes of more than 5%, but were not able to get support for it among city council members. Tenant groups also pushed for prohibitions on evicting elderly or disabled tenants and long term renters with children in the school system. The Mayor rejected those ideas as well.
Additionally, not all landlords are covered by the new law. Exempt are owners of 6 or fewer residential rental units, owner-occupants of multi-family dwellings, and Section 8/federally subsidized housing.
Landlord groups, meanwhile, remain skeptical of Walsh’s proposal. State law already has strong tenant protections, Greg Vasil, chief executive of the Greater Boston Real Estate Board told the Boston Globe. Adding more will only subject building owners to even-more-drawn-out legal fights with tenants, he said. And, Vasil added, Walsh’s restrictions may deter developers from building more apartments in Boston, which has been a top priority for the mayor, who has pledged to add 53,000 units by 2030 and combat high housing costs. “This would make it more difficult to develop housing for the middle of the market,” Vasil said. “We’ve been making good progress and I’d hate to see anything happen to that.”
Because the bill is a Home Rule Petition, it must be approved by the City Council then the entire State Legislature. The bill may also face court challenges because it fundamentally alters existing private contracts and the very nature of a tenancy at will relationship. If the petition becomes law, evictions in Boston will become even harder and more expensive.
Readers, what are your thoughts on this important development? Post below in the comments.
In a ruling which reaffirms Massachusetts’ place as one of the most landlord-unfriendly jurisdictions in the country, the Supreme Judicial Court ruled yesterday that a landlord’s minor security deposit law violation over failing to pay $3.26 in interest can be a complete defense to an eviction case even where the tenant owed thousands in rent. After this ruling, tenants will have another powerful tool to avoid eviction in both no-fault and non-payment cases. A change in this ruling would only come about through legislative action — which is usually a non-starter on Beacon Hill.
Rich’s Legal Advice: I have long advocated to my landlord clients that they NOT take security deposits. This ruling should be the nail in the coffin on that issue.
Garth Meikle v. Patricia Nurse
The Massachusetts Security Deposit Law provides a three month penalty, including payment of the tenant’s legal fees, against landlords who don’t follow its strict requirements. One of the requirements of the Security Deposit Law is that annually the landlord must pay the tenant any accrued interest on the deposit. That’s what got landlord Garth Meikle in trouble with his tenant who was three months behind in rent. Meikle brought a no-fault eviction case in the Housing Court, but the tenant raised the counterclaim and defense that she did not receive interest on the security deposit. Ruling that the landlord’s minor violation of the security deposit was not a complete defense to the eviction, the Housing Court Judge Marylou Muirhead allowed the eviction to proceed, ordering the tenant to pay the past due rent, but deducting the security deposit plus the $3.26 in unpaid interest. However, the tenant, represented by Harvard Legal Aid Bureau, appealed her case all the way up to the Supreme Judicial Court.
Statutory Interpretation
The issue on appeal was the distinction between a counterclaim and a defense for a security deposit violation. Everyone agrees that the tenant can raise a security deposit violation as a counterclaim (entitling the tenant to up to triple damages), but the question was whether such a violation could be a complete defense to an eviction, preventing the landlord from regaining possession of the rental unit. Landlords and yours truly argued that a security deposit is a separate financial matter between the landlord and tenant which has nothing to do about whether the tenant owes rent or the condition of the property.
Justice Geraldine Hines, writing for SJC, disagreed and found that a security deposit violation was within the list of defenses to an eviction. Despite quite unclear and murky statutory language, the justice was persuaded that the Legislature’s historical tightening of penalties and sanctions against landlords was indicative of the legislative intent to include a deposit violation among the list of available defenses to eviction.
So we’ll have to thank the SJC and the Legislature for sticking it to Massachusetts landlords once again. With tenant activist groups pushing “Just Cause Eviction” i.e, rent control and the Legislature’s continual failure to enact any sensible landlord-tenant reform, no wonder Massachusetts has a well-deserved reputation as one of the most tenant-friendly states in the union.
The Housing Court expansion plan to have statewide coverage has been gaining political momentum, but whether the plan will receive the long-term funding it needs to make it a reality remains a question mark. The Governor’s fiscal 2017 budget proposal earmarks $1 million for the court’s expansion, which calls for its jurisdiction to be widened with the addition of a sixth division and its bench increased from 10 to 15 judges.
While supporters are pleased with the language in Gov. Charlie Baker’s budget, which authorizes the Housing Court’s structural changes through a so-called outside section, Trial Court officials estimate that the annual cost of the proposal would be more than double the earmarked sum, reaching up to $2.4 million. “The $1 million will allow us to ramp up over a period of time,” Housing Court Chief Justice Timothy F. Sullivan (shown right) told Mass. Lawyers Weekly last week. “We don’t expect it will happen overnight. We’ll have to grow into our new roles.” Meanwhile, House and Senate bills are pending that seek a larger statewide court as well, providing access to those who currently do not fall within the court’s jurisdiction — about one-third of the state’s population.
The budget and legislative proposals call for adding a Metro South Division that would encompass all of Norfolk County (Dedham) — except Brookline — plus Abington, Bridgewater, Brockton, East Bridgewater, West Bridgewater and Whitman. Four of the five existing divisions would absorb additional communities, which includes the highly populated MetroWest area including Framingham, Newton, Cambridge and the rest of Middlesex County.
Of the five new judges that would be added, two would be assigned to the Metro South Division; the circuit judge pool would grow from one to three; and the Northeastern Division would take on an additional judge.
Guarded Support
As I told Mass. Lawyers Weekly, I am a “guarded supporter” of the expansion. Most landlord groups do not consider the Housing Court a level playing field and prefer to have their cases heard in District Court. While the Housing Court’s housing specialists and mediators can help matters move quickly, the volume of cases at some courts can be a bottleneck. “You have to look at the number of cases versus the number of judges available to handle the cases. That’s going to be an important consideration,” I told MLW.
We also need to look at the pro bono legal support available to both sides of the dispute. In Boston Housing Court, for example, there is a small army of Harvard law students ready to assist tenants free of charge. There is no comparable service for small unrepresented landlords, and that’s not fair.
Doug Quattrochi, executive director of the MassLandlords.net trade group, agreed. Though the Housing Court has a process — not available in District Court — that allows landlords and tenants to mediate first and then move directly to trial if an agreement cannot be reached, his trade group would like to see some of the “lopsided, tenant-centric” laws corrected if the Housing Court is expanded, he said. “The laws build in procedural delays that tenants become more aware of in Housing Court. Let’s look at changing these laws,” Quattrochi suggested.
I would fully support the Housing Court expansion if the legislation were linked to the passing of the rent escrow bill and other reforms to make landlord-tenant laws fairer to landlords.
Many Massachusetts landlords are unaware that before charging tenants for hot water and sewer service, they must comply with the numerous and onerous requirements of the Massachusetts Water Sewer Sub-Metering Law, General Laws chapter 186, chapter 22. These requirements include having separate water meters for each unit, installation of low flow faucets and toilets by a licensed plumber, and certification with the local health board, among other requirements outlined below. Non-compliance with this law may result in a three month rent penalty to the landlord plus payment of the tenant’s attorneys fees.
A landlord can only charge a tenant for water/sewer service under the following conditions:
1. The tenant’s unit must be separately submetered by a separate water meter installed by a licensed plumber. A separate water meter measures the amount of water supplied to a particular unit, and enables the landlord to charge the tenant for the tenant’s own water usage. So, for example, if a building contains 4 dwelling units and a basement where water is utilized for the entire building, a landlord would need to have 5 submeters installed in addition to the primary meter that measures the building’s water use in its entirety. If the building does not have separate meters for each unit, the tenant may not be charged for water service.
2. The tenant’s obligation to pay for water usage must be contained in a signed lease, in an obvious place, and not in the fine print. Each bill for submetered water usage must clearly set forth all charges and all other relevant information, including the current and immediately preceding submeter readings and the date of each such reading, the amount of water consumed since the last reading, the charge per unit of water, the total charge and the payment due date. If the landlord bills the tenant on a monthly basis, payment of the bill by the tenant must be due 15 days after the date the bill is mailed to the tenant, but if the landlord bills the tenant at intervals greater than 1 month, payment of the bill by the tenant is due 30 days after the date the bill is mailed to the tenant.
3. A landlord may not charge the tenant for water supplied through a submeter unless the a licensed plumber has installed fully functional water conservation devices for all faucets, showerheads and water closets/bathrooms in the unit (low-flow shower heads and faucets and low-flush toilets)
4. The landlord must provide a certification under the penalties of perjury, with the board of health or health department, that the appropriate submeters and water conservation devices were installed by a licensed plumber.
5. A landlord cannot charge a tenant for water/sewer service mid-way through a tenancy or lease. A landlord can only charge a tenant for water/sewer upon the start of a new tenancy in the unit; and only if the unit is being occupied for the first time, or if the previous tenant left voluntarily, or was evicted for non-payment of rent or other breach of the lease.
6. A landlord who engages in self-help by willfully failing to furnish water or directly or indirectly interfering with the furnishing by another of water, or transferring responsibility for payment for water to the tenant without their knowledge or consent, is punishable by a fine of not less than $25.00 nor more than $300.00 , or by imprisonment for not more than 6 months and is liable for actual and consequential damages or 3 month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee.
Given these onerous requirements, my advice to landlords is to never charge the tenant for water/sewer! Just pay the bill and make it “hot water included” in the rent.
Hundreds Cram Into City Council To Debate Controversial Petition
Hundreds of tenant activists, small property owners and landlords packed City Hall and poured over into overflow rooms last night as the Boston City Council held its first public hearing on the need for “just cause” eviction legislation, to stem the city’s skyrocketing rents. Harking back to the days of rent control, the proposal would prohibit a landlord from evicting any tenant except for certain “just cause” grounds. These grounds and their related procedural impediments to eviction, would in my opinion, make it nearly impossible (or cost prohibitive) to evict tenants, raise rents and sell occupied rental property in the City of Boston. For more specifics of the proposal, please see my prior post, Boston Tenant Activists Pushing Just Cause Eviction Proposal.
The City Council, led by Councilor Josh Zakim, heard four hours of impassioned testimony from both sides of the issue. Renters say it would create safeguards against eviction; landlords say it would slap them with thinly disguised rent controls.
“Any way you look at it, this is rent control,” Skip Schloming, of the Small Properties Owners Association, said in an interview just before the hearing started.
Lisa Owens Pinto, executive director of City Life/Vida Urbana, for the tenant side told news outlets that “this proposal would just require property owners to provide a good reason to evict someone.” Ms. Owens Pinto said her organization’s measure has three central provisions – landlords must provide a reason for an eviction; if a rent increase is sought, a landlord must first notify the city; once notified, the city must use its resources to contact and advise the affected tenant.
Gilbert Winn, chief executive of Boston-based developer Winn Companies, told the council that a new set of regulations isn’t needed and warned that any changes may have an adverse effect on housing. “You can’t attack the very thing you are trying to protect, which is the rental economy,” Winn said. His company is a major developer of affordable housing projects. Winn, the son of Winn founder Arthur Winn, also claimed the proposal would provide tenants with a potential avenue to avoid living up to their rental agreements. “If a contract between a willing renter and a willing owner cannot be adhered to, and only one party has to adhere to it, then the whole system falls apart,” Winn said.
The proposal has been a moving target. A revised draft of the group’s proposal, originally submitted as a home-rule petition, wasn’t available at the hearing, leaving several councilors perplexed as to why it hadn’t been officially filed. “We’re talking about a specific proposal and I’m finding it hard to follow because we don’t have the draft in front of us,” City Councilor Josh Zakim said about halfway through the four-hour hearing.
Prior to the hearing, tenant advocates agreed to drop one of their most controversial requests: a mandate that rent increases of 5 percent or more be subject to nonbinding mediation. Instead, they are pushing for a rule that would require landlords to notify the city of rent hikes that result in eviction, known as a no-fault notice to quit.
Mayor Marty Walsh had initially signaled support for the measure, but wanted to see how the details would be fleshed out. As they say, the devil is in the details and it’s quite possible this proposal will get significantly watered down during the legislative process, if it survives at all.
Gov. Baker Selects Newton Lawyer For Housing Court | Now First Trial Court With Female Majority
Maria Theophilis (pictured right in red), a 46 year old partner in the Newton law firm of Broderick Bancroft, has been selected by Gov. Baker to sit as a new judge of the Housing Court. Theophilis replaces Chief Justice Steven D. Pierce, who retired Sept. 30, 2015.
Theophilis was nominated by Governor Charlie Baker who stated to the Metrowest Daily News that “throughout her career, Maria has provided support to those seeking an outspoken advocate on their behalf. Combined with her lengthy record of proceedings before the Housing Court on behalf of both tenants and landlords, I know she carries all the requisite experience to provide sound decisions from the bench.”
Some landlords and small property owners, however, may be a bit concerned about Theophilis’ legal background. She was a staff attorney for several years with Greater Boston Legal Services, which represents tenants and advances a very liberal social agenda. She was also worked for the Lawyers Committee for Civil Rights and the Committee for Public Counsel Services — also two very left leaning public interest groups. More recently, however, she represented property owners as a partner in private practice.
That said, Theophilis has deep experience on both sides of the landlord-tenant relationship which is very important. By all accounts, she has an excellent reputation and was voted in unanimously by the often fickle Governor’s Council which says a lot these days. Plus, she was picked by Republican Governor Baker, who is has been doing a good job with judicial appointments, in my opinion. As with any new justice, she deserves the benefit of the doubt as she steps on the bench for the first time. It’s a tough job.
Theophilis is the sixth woman selected for the Housing Court, which now has a majority of female justices. I believe that no other trial court department can claim that accomplishment.
Landlord Stopped From Evicting Tenant Over $3.26 In Interest
Massachusetts has a well-deserved reputation as being a hostile jurisdiction for landlords. With a myriad of tenant favorable laws on the books, the proverbial playing field is often stacked against landlords. Exhibit A is the Security Deposit Law which provides a three month penalty, including payment of the tenant’s legal fees, against landlords who don’t follow its strict requirements.
One of the requirements of the Security Deposit Law is that annually the landlord must pay the tenant any accrued interest on the deposit. That’s what got landlord Garth Meikle in trouble with his tenant who was three months behind in rent.
Garth Meikle v. Patricia Nurse, SJC-11859
Meikle brought an eviction case in the Housing Court, and essentially won with the judge ordering the tenant to pay the past due rent, but deducting the security deposit plus the three dollars and change in interest. However, to the tenant’s rescue came the crusading Harvard law students from Harvard Legal Aid Bureau. Representing her for free, the students have taken her case all the way up to the Supreme Judicial Court. (Why is it that landlords are not offered the same free legal aid?). The tenant posted an appeal bond so she’s allowed to stay in the apartment while paying the rent during the pendency of the case.
The SJC heard arguments this morning with third year Harvard Law student Louis Fisher arguing the case. (Damn lucky kid!).
The Harvard tenant lawyers are advancing the dangerous argument that a landlord who violates the security deposit law — even in the most minor of circumstances — cannot evict a non-paying tenant.
Scary right? If the Court accepts this argument then tenants will have yet another powerful tool to avoid eviction. The Security Deposit Law is so strict that most landlords make minor errors in holding the deposit. That’s why I have advised that landlords don’t even bother taking security deposits in the first place.
You can guess where I stand on the merits of the case. The security deposit is a separate financial matter between the landlord and tenant which has nothing to do about whether the tenant owes rent or the condition of the property. Those are the two primary issues in a non-payment eviction case. You don’t pay the rent without legal defense, you’re out. Period. Compliance with the security deposit law should have no bearing on a non-payment eviction. The Legislature did not intend otherwise, and regardless, that should not be our policy. Enough is enough already.
You know what else bothers me? These legal aid organizations take on these “test cases” to train law students and get them experience. After all when does a law student ever get to argue a SJC case? Is that really fair and just to small unrepresented landlords like Mr. Meikle who told the justices that his son and fiancee were hoping to live in the apartment?
The SJC should come out with a final ruling in the next few months. Check back here for future developments. In the meantime, I will keep on fighting the good fight for landlords.
I will be speaking about Rental Legal Trends and Security Deposits at the monthly Boston Real Estate Investors Association meeting on November 3, 2015 at the Hilton Hotel – Dedham, 25 Allied Drive, Dedham, MA. Time: 5:30PM-9PM.
Agenda below. It is FREE for anyone who mentions my name!
5:30 PM – “Meeting Before The Meeting” – Multifamily Investing with Charles Dobens
7:30 – 8:00 pm – What You Need To Know BEFORE Placing An Offer. Lee Abdella of Walsh Home Inspections will address what you should look for before putting an offer in on a house or before waiting your home inspection!
8:00 – 9:00 pm – Mass Security Deposit and Rental Law with Richard D. Vetstein Esq.
By-Pass Housing Court For Expedited Superior Court Restraining Order Procedure
I recently handled an interesting case involving an unauthorized family member taking up residence in my client’s rental unit. My client, a doctor, owns a very nice condo unit in the Theatre District in Boston. He and his family live next door in the adjacent unit. The client signed a one year lease with a wealthy foreign national from Jordan, a middle aged lady. Per the lease, the tenant was the only authorized occupant for this 1BR unit. There was no discussion about family members being authorized occupants, and my client would not have agreed to it.
My client comes to find out that the tenant’s 20-something year old son, who attends a local college, has taken up residence in the unit. To make matters worse, the kid hosts several loud late night parties reeking of marijuana and cigarette smoke. My client is incensed, and to add insult to injury, he is fined several thousand dollars for noise and lease violations by the condo association. My client attempts to take action against tenant and son, but they hire a well known tenant’s rights attorney who stonewalls the two attorneys hired by the client. The client finally hires me.
Typically, this type of case would be filed as a standard eviction case in busy pro-tenant Boston Housing Court. The tenant’s attorney is also well known there. Accordingly, I needed to find a way to bypass Housing Court and take away this lawyer’s home court advantage.
So I came up with an creative approach. I filed a restraining order application in Superior Court to remove the son as an illegal trespasser. Although Superior Court typically handles major civil cases, it does share jurisdiction with the Housing Court over trespass cases requesting equitable relief. I served the interloper with a formal trespass notice, then filed the Superior Court application a few days later. The judge granted the move out order, after which my client and I had the pleasure of taking a victory walk down Tremont Street to serve the move out order. We were able to have the management company immediately change the locks and remove all the kid’s possessions. He is now permanently barred from entering the building. And the best part was that he left his wallet and passport in the unit! My client is now preparing the unit for rent to a better tenant.
Court Halts Eviction For Distressed Homeowner, Validity of Foreclosure In Question (Wells Fargo v. Cook, Mass. Appeals Court May 19, 2015)
In response to the foreclosure crisis, HUD enacted regulations requiring lenders to provide distressed borrowers with a meaningful opportunity to settle their FHA-insured mortgages and obtain a loan modification during a face-to-face interview. In an effort to accommodate the hundreds of Wells Fargo clients facing foreclosure in Massachusetts, the San Francisco based lender held a mass “homeowner’s workshop” at Gillette Stadium in August 2008.
Three months behind on their Mattapan mortgage, Nancy Cook and her daughter showed up to the stadium with a little over $10,000 in cash, in anticipation of signing a repayment plan. After waiting in a long line, Cook received a ticket and sat down with a bank representative. Despite HUD guidelines requiring that loan representative have actual authority to settle accounts and enter repayment plans, the Wells Fargo representative said that he was unable to accept any payments at the event. The counseling session lasted only 15 minutes, but the reprepresentative promised that Ms. Cook would receive a loan modification package in the mail.
Ms. Cook did receive a Special Forbearance Agreement in the mail, which she accepted, and made the first three payments under the agreement. When she went to make the fourth payment, Wells Fargo rejected it, claiming that Cook owed it $2000 more than the scheduled payment. Wells Fargo then issued a default notice, accelerated Cook’s debt, and foreclosed her home.
Several years after completing the foreclosure sale, Wells Fargo brought an eviction case against Cook and her daughter, who at this time were represented by lawyers from Harvard University Legal Aid. (The reason for the long delay is unclear). Boston Housing Court judge Marylou Muirhead ruled against Cook, clearing the way for her eviction.
On appeal, Appeals Court Justice Scott Kafker halted Cook’s eviction, ruling that the Housing Court judge should reconsider whether the Gillette Stadium mass counseling event complied with HUD guidelines. Justice Kafker noted that a reoccurring theme of the HUD rules is to provide personalized consideration for each homeowner. That apparently was not done, said the justice, or at least there is a dispute as to whether the mass Gillette Stadium event could satisfy that guideline.
Of particularly interest to the real estate conveyancing community, the Court held that if the lower court ultimately rules that the counseling session was insufficient, the lender could be found in noncompliance with the mortgage terms and foreclosure power of sale, and its foreclosure could be deemed defective and invalid. A court holding to this effect could potentially invalidate completed foreclosures of FHA insured mortgages over whether the lenders complied with the face-to-face meeting requirements of the HUD guidelines. Ensuring a lender’s compliance with HUD rules is not typically part of a title examiner’s scope of examination. Lenders would need to provide an affidavit certifying that all pre-foreclosure counseling requirements were complied with. Accordingly, this is yet another reason why obtaining an owner’s title insurance policy is a prudent choice for all buyers of foreclosed properties.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With 25 years in practice, he was voted a "Super Lawyer," a "Top Lawyer" by Boston Magazine and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
Bill Sent to Study Committee, Effectively Killing It
