Massachusetts Housing Court attorney lawyer

Judge-Timothy-SullivanGov. Baker Earmarks $1M for Expansion

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.

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eviction-notAvoid Being Dead On Arrival In Eviction Court

The first step in evicting any Massachusetts tenant is issuing a notice to quit which is a legal document formally notifying the tenant that his tenancy is being terminated for a particular reason and giving him the date upon which he must move out. There are very specific rules as to how the notice must be drafted, what it must say, and how it must be delivered. Any mistakes in providing a proper notice to quit can torpedo your eviction case before you even see a judge. Needless, to say I recommend hiring an experienced Massachusetts eviction attorney to handle drafting and serving the notice to quit. Here are all the various rules and considerations for sending out a notice to quit.

A.      Non-payment of Rent

One of the most common reasons for starting an eviction is for non-payment of rent. Whether the tenant has a written lease or is a tenant at will the landlord must send the tenant a 14 day “notice to quit” before starting the eviction process. The notice to quit will typically provide as follows:

Dear Mr. Tenant: This office represents your landlord, Mr. Landlord. You are hereby notified that your tenancy is terminated and to quit and deliver up and move out of the premises you now rent namely: 123 Main Street, Anytown, MA and all appurtenant uses thereto 14 days after your receipt of this notice. The reason for this notice is that you have failed to pay the rent due as follows: Total Owed: $7,200.00.

1. Service of the Notice

Many landlords believe that a notice to quit should be served by certified/registered mail. This is a very bad practice because the tenant can always avoid the mailman. In court, the landlord has the burden of proving that the tenant received the notice. The best practice is to have the notice to quit served by a constable or sheriff to ensure proof of delivery. Under the court rules, service by a constable or sheriff is “good service” whether the tenant is served in hand or the notice is left at the premises.

2.  Tenants At Will

If a landlord is sending a 14 day notice to quit for nonpayment to a tenant at will (as opposed to a tenant with a written lease for a set term), the notice must also include the following language:

 “If you have not received a notice to quit for nonpayment of rent within the last twelve months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord’s attorney or the person to whom you customarily pay your rent the full amount of rent due within ten days after your receipt of this notice.”

3. Calculating Notice Date

The next trap for the unwary is calculating the notice date. You cannot start the eviction until 14 days have elapsed since the tenant is served with the 14 day notice to quit. So you need to know exactly when the tenant was served so you can properly calculate the date upon which you can start summary process. If you start the eviction too early, the case will get dismissed.

4. Cure Rights

Landlords should also be aware that under tenant-friendly Massachusetts law, a tenant at will can cure and reinstate his tenancy by paying the outstanding rent (plus court costs if claimed) up to the Monday answer date in the eviction case — and most judges won’t evict any tenant who shows up to court fully paid up.

Sometimes, landlords make the mistake of accepting rent from a delinquent tenant without endorsing the check the proper way in order to avoid reinstating the tenants. If you receive a rental payment after a notice to quit is issued, you must endorse the check as follows:

“Accepted for use and occupancy only and not for rent”

Your notice to quit should also have the following non-waiver language:

If your tender of rent or payments does not comply with the requirements noted above or otherwise cure or excuse the breach as provided by law, any funds paid by you after the date of this notice shall be accepted for use and occupancy only and not for rent, shall not waive this notice or any subsequent eviction proceedings, nor shall it create or reinstate any tenancy.

B.      Termination of Tenancy At Will

Sometimes landlords just want to move on from a problematic tenant at will, raise their rent or change the lease terms. In these situations, landlords must serve a notice terminating tenancy at will. This is sometimes called a 30 day notice, but this is actually inaccurate because almost always more than 30 days notice is required to be given. It’s really a rental period notice.

Generally, at least a full rental period of notice must be given to a tenant at will, but the termination date must be at the end of the following rental period, or 30 days whichever is longer. For example, if you are terminating a tenancy at will on June 10, the notice must provide that the tenant must vacate by the following July 31. Terminating a tenancy at will in February will also be problematic.

In practice, judges will often give tenants in no-fault evictions a bit more leeway in terms of vacating the premises.

C.  Non-Renewal of Lease/Offer of New Tenancy

Most landlords get tripped up in the situation where a written lease self-extends but the landlords wants to raise the rent, change the lease terms or move on from the tenant. In this situation, a notice terminating tenancy must be issued to formally terminate the tenancy, coupled with an offer of a new lease/tenancy. If the tenant does not accept the offer of a new lease/tenancy, the tenancy will end on the date provided in the notice. If the landlord wants the tenant to move out, he doesn’t need an offer of a new tenancy obviously.

D.      For Cause Situations

“For cause” evictions encompass a wide range of bad behavior by tenants in violation of lease provisions or the law. It could be illegal activity, drug use, excessive noise, uncleanliness, harassment of other residents, non-approved “roommates” and the like. Like all other evictions, the landlord must issue a notice to quit to the tenant stating the specifics of the offenses. If the tenant has a standard form lease, the notice to quit will typically be a 7 day notice. For tenants without a written lease, it’s a gray area, but I would use a 30 day notice. For drugs and other illegal activity, Massachusetts also has a special expedited eviction process where you can go to court right away without any prior notice to quit, but the tenant is entitled to notice of the court proceeding and an opportunity to contest it and cross-examine witnesses.

Sending a proper notice to quit is merely the first step in the eviction process, but a very important one as it can get your case dismissed before a judge hears the merits of the case. There are so many other procedural traps for the unwary which follow during an eviction case. Again, if you are considering evicting a tenant, do not attempt to do it yourself.

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100316_photo_vetstein-2.pngIf you need assistance drafting and serving a notice to quit and evicting a tenant, please contact Attorney Richard Vetstein via email at rvetstein@vetsteinlawgroup.com or telephone at 508-620-5352.

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