Massachusetts landlord tenant lawyer

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Breaking (5/15/13): SJC Rules In Landlords’ Favor, Lodging House Law Does Not Apply to Apartment Rentals

Does Lodging House Law Apply to Student Apartments?

The Massachusetts Supreme Judicial Court has agreed to hear the City of Worcester v. College Hill Properties case which may significantly impact renting apartments to students and in other multi-family situations. The justices will decide whether renting to 4 or more unrelated persons in one apartment unit requires a special license under the Massachusetts lodging housing law, which would require fire sprinklers and other expensive upgrades. The SJC will hear oral arguments in the case on January 7, 2013.

The case arose at The College of the Holy Cross in Worcester where several landlords rented out apartments to groups of unrelated students. The Housing Court and Appeals Court had previously ruled that the landlords ran afoul of the lodging house law by renting to more than 3 unrelated persons in one rental unit without the special lodging house license.

Impact Outside College Towns?

Prior to the Appeal Court’s decision, housing authorities typically allowed 4 or more unrelated adults to occupy single apartments as roommates without a lodging license provided that minimum space requirements were met: 150 s.f. of living space for the first person, 100 s.f. for each additional person (3 occupants = 350 s.f. of living space); 70 s.f. of bedroom space for 1st person, plus 50 s.f. for additional person (120 s.f. for 2 persons in one bedroom).

In the City of Boston, a new zoning ordinance went into effect in 2008 prohibiting 5 or more undergraduate students from living in one apartment unit. We will see how the Boston Inspectional Services Dept. interprets the College Hill ruling.

The SJC’s decision will hopefully clarify this grey area of Massachusetts rental property law.

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Avoid The Professional Tenant Like The Plague

Using best practices to screen and select good tenants is the most important thing a Massachusetts landlord can do to avoid costly non-payment and eviction problems down the road, as I have posted about on this Blog. As the saying goes, an ounce of prevention is worth a pound of cure.

In my 14 years of practice, I have come across a sub-set of tenants which are extremely dangerous to Massachusetts landlords. They should be avoided like the Plague. I like to call them Professional Tenants.

Let me give you the profile of a typical Professional Tenant. (This is a generalization based on my personal experience, but it’s fairly accurate).

  • History of eviction history and/or delinquency with prior landlords
  • Surprising (and dangerous) knowledge of Massachusetts landlord-tenant law
  • Background in real estate, engineering, contracting
  • Marginal to bad credit: prior history of nonpayment collections, judgments or bankruptcies
  • Gaps in rental history
  • Non-existent or incomplete prior landlord references

The Professional Tenant’s Scheme

Shortly after moving in, they will start to complain about small issues with the rental property. Some will complain to the local board of health to have the landlord cited for code violations. (The state Sanitary Code can trip up even the most conscientious landlord.) Then the Professional Tenant will stop paying rent, claiming they are “withholding rent” due to bad property conditions. Of course, these tenants completely ignore the smart practice that any withheld rent be placed in an escrow account. Then the Professional Tenant will assert the landlord violated the last month rent and security deposit law, and ask for their deposit back, trying to set up the landlord for a triple damage claim.

In the meantime, months go by and the Professional Tenant has failed to pay any rent and the minor code violations, if any, are repaired. The landlord is forced to start eviction proceedings, only to be met with a slew of counterclaims and defenses from the Professional Tenant. The Professional Tenant then sends the landlord a myriad of document requests and interrogatories which automatically delays the eviction hearing by 2 weeks. If the Professional Tenant is really savvy, they will demand a jury trial, which in most small District Courts can delay the eviction by weeks and typically months. Meanwhile, the entire time, the Professional Tenant has still not paid any rent.

Months and thousands of dollars in attorneys’ fees later, the landlord finally gets his day in court. And the Professional Tenant doesn’t show up, leaving the landlord with a worthless judgment for thousands in unpaid rent and a trashed apartment.

Screen and Screen Again

The sad thing is that because Massachusetts landlord-tenant law is so tenant friendly, there is not much a landlord can do to avoid this situation, other than not rent to the Professional Tenant in the first place! Once a landlord has signed a lease with a Professional Tenant, they are stuck until the tenant violates the lease. My advice to landlords is to make screening the most important thing you do as a landlord, and do the following:

  • Invest in good credit history checks.
  • Follow up with landlord references
  • Check employment info
  • Check prior bankruptcies
  • If someone seems fishy, they probably are

If you find yourself stuck with a Professional Tenant, give me a call. There are certain things an experienced eviction attorney can do to prevent or minimize these shenanigans. At least you will be fighting back against what I perceive as scam artists.

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Richard D. Vetstein, Esq. is an experienced Massachusetts landlord tenant and eviction attorney. Please contact him with any questions.

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Get Out! A Landlord’s Guide to Massachusetts Evictions

by Rich Vetstein on October 7, 2011

Massachusetts Summary Process Evictions: An Unlevel Playing Field For Landlords

How do you evict a tenant in Massachusetts? In Massachusetts, evictions are called “summary process.” According to the rules governing eviction cases, summary process is supposed to be “just, speedy, and inexpensive.” In practice, however, summary process can be anything but that. In fact, as I always inform my landlord clients, Massachusetts is one of the most tenant friendly states in the country, and an eviction can be costly, frustrating and unfair to landlords. In some cases, it can take many months to evict a tenant.

Further, Massachusetts eviction practice is loaded with traps for the unwary and procedural complexities for landlords. Landlords who represent themselves do so at their own peril and will often arrive at court with their cases dismissed for not following these requirements. It’s not a do-it-yourself situation.

Grounds For Eviction

A.      Non-payment

There are several common grounds for evicting a tenant. The most common is for non-payment of rent. In these cases, the landlord must send the tenant a statutory 14 day “notice to quit” before starting the eviction process. The 14 day notice to quit must be drafted carefully, and the best practice is to have it served by a constable or sheriff to ensure proof of delivery. The landlord must prove in court that the tenant received the notice, and service by constable or sheriff will automatically qualify as “good service.” Certified mail is not good enough as tenants can avoid pickup. Having an experienced eviction attorney draft the notice to quit can prevent have your case being “dead on arrival.”

B.      No-Fault

Another common ground for eviction is for termination of a 30 day tenancy at will, otherwise known as a no-fault eviction. Again, a 30 day notice to quit must be served on the tenant before commencing an eviction. Landlords often trip up on this type of notice with short months. In practice, judges will often give tenants in no-fault evictions a bit more leeway in terms of vacating the premises.

C.      For cause

“For cause” evictions encompass the range of bad behavior by tenants in violation of lease provisions. 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. “For cause” evictions are the most involved of all evictions as the landlord must offer proof by way of live testimony of the tenant’s violations of the lease. Getting police officers to show up for an eviction hearing can be challenging. For drugs and other illegal activity, Massachusetts also has a special expedited eviction process.

Read our post on the Massachusetts Notice To Quit: Don’t Be Dead On Arrival At Eviction Court

Going to Court

Starting an eviction requires the preparation and service of a Summary Process Summons and Complaint. You can choose to file your case in the local District Court or the Housing Court which is specialized to hear evictions. The Housing Court fees are less expensive, but can be busier. Some Housing Court judges have the reputation of being tenant or landlord friendly as well. Some would probably be happier retired and playing golf. It’s a tough job these days.

The summary process summons and complaint form is complicated to the layperson. It must be first served by a constable or sheriff on the tenant. Then, no less than 7 days after, it must be filed with the court by the “entry date,” which is always a Monday. The hearings are almost always on Thursday morning. Again, it’s best to have an experienced Massachusetts eviction attorney handle the legal paperwork.

Tenant Defenses and Counterclaims

Through the use of discovery requests, defenses and counterclaims, tenants in Massachusetts have ample legal means to delay and beat evictions. All tenants have a right to file “discovery” – formal requests for information and documents – from the landlord, which will automatically delay the hearing for two weeks. The tenant also may assert defenses and counterclaims against the landlord. These can range from improper notice or service, state Sanitary Code violations, no heat/hot water, failure to make repairs, retaliation, discrimination, and violations of the security deposit law—which carries triple damages and attorneys’ fees. (See my prior post on security deposits). Regardless of the merits of such claims, these defenses and counterclaims make the eviction process more complicated, time-consuming, and expensive.

Read my post on the Massachusetts State Sanitary Code — Everything A Landlord Wanted To Know But Was Afraid To Ask

Agreements for Judgment and Mediation

Eviction sessions are very busy. In some courts, there are over 100 cases stacked up on any one day and only one judge to hear them all. Accordingly, the courts will encourage parties to work out their differences on their own through mediation which is an informal sit-down between the parties to discuss ways to resolve the case. Some courts have housing specialists who can preside over the mediation session. Mediation is always non-binding so if no agreement can be reached you can proceed to a trial.

In the Housing Court, there are trained housing specialists who facilitate the mediation process. There are many advantages for landlords to mediation, and I almost always recommend giving it a try. The end result of a mediation is for the parties to sign an agreement for judgment. In a non-payment case, you can structure a payment plan and/or voluntary move-out. For a “cause” eviction, you can provide for a “last chance” agreement or move-out. The major benefit for landlords is that an agreement for judgment becomes a binding court order and the judge is supposed to enforce it upon proof of a violation. It also shows the judge that the landlord has been reasonable and accommodating. Experienced Massachusetts eviction attorneys will also make the tenants waive their rights to appeal and right to delay the case any further so as to avoid last minute requests for more time to vacate.

On the other hand, sometimes the situation is untenable and you have to go before the judge. Some judges hold a basic hearing, giving both sides the opportunity to speak. Some judges, particularly in the Housing Court, are more formal and require an actual trial with live witnesses and exhibits. I’ve had hearings last one minute and jury trials in eviction cases go on for days. But I’m always prepared to put on a case on for trial, as I always have my client present in court or on standby.

Appeals

Tenants in eviction cases do have a fairly robust right of appeal which can greatly delay resolution of the case. (A good reason in and of itself to do an agreement for judgment waiving appeal rights). However, in certain cases, the landlord can ask the court to impose an appeal bond so the tenant must pay rent into court to proceed with the appeal. Most tenants do not have the financial ability to do that, so that will terminate the appeal.

If you have any questions or need assistance with a Massachusetts summary process eviction, please contact me via email at [email protected] or by phone at 508-620-5352.

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Richard D. Vetstein, Esq. is an experienced Massachusetts summary process & eviction attorney who has handled over 2,000 eviction cases all across Massachusetts. For help with a landlord tenant matter, please email him at [email protected] or call him at 508-620-5352.

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