Law Office of Michael B. Mangano

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Monthly Archives: August 2011

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Self Help and Constructive Evictions

Every once in a while I will get a call from a landlord asking whether it is acceptable to throw their tenant’s belongings out into the street, or asking if they can lock them out, or turn their heat off.  These seem to be the most popular of the unlawful questions I get for evictions and, the answer to all of them, is a resounding NO!  I have to admit, if I had a tenant who was taking advantage of me, I would consider these things, too.  Although, after considering what the outcome would be if I did, I would quickly reconsider.  This article will discuss self-help evictions and constructive evictions, and the what might happen if a landlord implements one of them.

Constructive eviction occurs when a landlord’s act or failure to act renders the tenant’s premise uninhabitable so that the tenant has no choice but to vacate.  This most often occurs when a landlord fails to control the actions of other tenants, fails to supply adequate heat, or turns off utilities that he/she is required to provide.  Public policy bars a landlord from utilizing these methods for eviction.  Same is true if the tenant singed a lease agreement that states that no act or failure to act by the landlord shall be construed as a constructive eviction.  These types of provisions are void and never enforceable.

Self-help evictions occur when a landlord does something to prevent tenant’s access to the premise.  This includes the physical removal of tenant’s property or the so called “lockout.”  If a landlord does this to a tenant, the tenant can seek an injunction or restraining order against the landlord.

Constructive and self-help evictions are clearly agains public policy in Massachusetts and the court will access actual damages or three times the rent, plus a reasonable attorney fee for these types of evictions.  In addition, actual damages can include the costs of meals and alternative shelter.  This means that the penalty for implementing either of the two is high.  A landlord should follow the proper eviction procedure to avoid having to pay a tenant for violating the law.

Home Buying – Seller’s Disclosure Requirements

There are a lot of questions that you should be asking if you are buying a home, and a lot more if you are a first time home buyer.  With that said, however, what does a seller really have to disclose to a home buyer without being asked?  The true answer to that question is: it depends.  This article will run through some facts about private sellers and sales through real estate agents.  By the end you should have a decent understanding of what you are up against and how the rule of Caveat Emptor (“let the buyer beware”) can still affect your purchase.

In Massachusetts, a private seller has no legal duty to disclose anything about the property.  This means that he does not have to disclose anything about the leaky pipes, the basement that floods, the failing water heater, or anything else. It is true that when you buy a home, most people include a statement of condition and most real estate agents will require that a seller complete one.  However, if it is not provided by a private seller, there is no legal recourse against the seller.  This is why it is important to have a licensed inspector prepare a report on the condition of the property.  At least the inspector should have liability insurance that will protect a buyer from his negligence.

Even though a seller does not have to disclose defects on the property, he cannot lie and say that they do not exist if he knows that they do.  If you ask the seller is asked a question and he does not give you a truthful answer, this is an affirmative misrepresentation and he would be liable for any damages that he may have caused.  With that said, how would you prove this?  Keep that in mind, too.

Real estate agents on the other hand, are held to a higher standard.  However, being held to a higher standard does not mean that they automatically have to disclose defects.  In reality, the real estate agent’s responsibility to disclose is the same as an individual.  Even though they may not need to disclose defects, the good news is, most will.  This is because Massachusetts has various consumer protection laws in pace that protect home buyers.  Although not tailored specifically to real estate transactions, the court system views the home buying process as a consumer transaction and it is afforded the same protection as other commercial transactions.  Rather than face a potential consumer protection law suit, an honest real estate lawyer will disclose all known issues to avoid having to pay costly damages.  A consumer protection lawsuit can yield three times the amount of actual damages incurred by the consumer.

What this information means, is: you have to ask questions.  This is one of, if not the biggest, investments that you will ever make.  You should do you due diligence by asking questions and having the real estate properly inspected before agreeing to purchase.

What is the Deal with Apartment Security Deposits?

There is a tend that I have noticed from reviewing rental agreements and dealing with landlords, and that trend is: landlords have no clue about security deposits.  Really, NONE!  I use to like to inquire about security deposits somewhere in the middle of an initial consultation.  Now, I save that question for the end, and I assume that that it was not handled correctly. Why this cannot be handled correctly puzzles me. I do not know if this is a lack of understanding or a complete disregard for the law.  This article will discuss how a security deposit should be handled and what the repercussion for not following the law is.  This should get you thinking more about security deposits.

In the eyes of the law, the security deposit is the tenant’s money.  The purpose of the money is not to better the landlord.  The purpose of the money is to protect the landlord in case the tenant causes damage to the apartment or leaves the apartment owing money.  This means that a landlord cannot simply put this money into his/her personal checking account.

If a landlord takes a security deposit, there are several obligations that he/she satisfy.  A landlord must: provide to the tenant a written receipt that describes the condition of the apartment; hold the security deposit in a bank account that is separate from the landlord’s money; pay the tenant interest every year on the security deposit; and, keep records of deposits and repairs that are made to the apartment.

And, there is more.  Each of the above mentioned obligations has its own nuance.  For example, not only must the security deposit go into a separate checking account, it must go into a Massachusetts account that designates the funds as something other than a personal account.  The account registration must state that the money is for the the benefit of someone else.  Also, in the landlord must provide to the tenant the location of the bank, name of the bank, and provide the tenant with the account number (yes, the account number). I will not get into each nuance, there are plenty of resources online that walk you through each.  However, the second most over looked is the fact that interest must be paid.

If you violate the law and do not, for example, put the money into a bank account separate from your own personal money, if you do not give a complete written receipt to the tenant, or you do not allow the tenant to inspect the records you are required to keep, the tenant can demand the money back.  Then, if you do not give the money back after a lawful demand, you can be liable for three times the security deposit to the tenant.

Remember, Massachusetts is a very tenant oriented state.  If there is the slightest deviation from what the law requires, a court is likely to favor the tenant.  This does not mean that there has to be an intentional oversight.  This means that any oversight, intentional or not, a court is likely to favor the tenant.  With that said, there are a lot of sources available online that discusses each of the requirements in depth.  This article was designed to get you thinking about what a security deposit is and what it should be used for.  If you intend on collecting a security deposit from a tenant, you are encouraged to throughly read through the requirements, you would not want a tenant to take advantage of the situation.  In addition, if you are not willing to follow the law on security deposits and would like to limit any potential liability for a beach of duty, simply do not take a security deposit.  Spend some additional time screening your tenants and it will be money saved and an aggravation avoided.

It is funny how such a simple thing can be such a headache.  If you think about it, a security deposit is just suppose to be money that is put aside for any damage that the tenant may cause.  Everyone knows that.  But with such a stringent rule, it shows what a tenant oriented state this is.

Uncontested Divorce

To file for a true uncontested divorce, you must be in agreement with everything.  That means that you have to agree on child custody, child support, alimony, property division, and the grounds for divorce.  If you can agree on all of those, you can file for an uncontested divorce, and you may not even need a lawyer to do so.  This article will walk you through what is needed to file for an uncontested divorce in Massachusetts.

In order to file for divorce, you will need to prepare a Joint Petition for Divorce, an Affidavit of Irretrievable Breakdown, a R-408 Vital Statistics Form, a Hearing Assignment form, Child Support/Care affidavits, a Separation Agreement, and complete a mandatory Parental Education Program.  You can obtain a packet of forms from the Probate and Family Court in your jurisdiction.  After you complete these requirements, you can file those documents with the same court.

As you can see, there is a lot of prep-work that goes into filing for a divorce.  Not only is it a lot of work, you have to prepare everything with the one person you are trying to get away from.  The good news is, however, most of the documents only need to be filled out.  The only document that has to be crafted by the divorcing couple is the Separation Agreement. This document sets forth how the property will be divided, how the debts will be apportioned, how child care will be arranged, how alimony (if any) will be paid, and how taxes will be filed.  This is a very complex document and is usually best to have an attorney draft it, but it is not impossible to do by yourself.

If you can complete all of the aforementioned, you can file all the paperwork and schedule a hearing.  If everything is in good order, the court will send a Notice of Trial to both spouses.

At the hearing, the judge will ask you a series of questions to make sure you have read, understood, and agreed to all the terms in the Separation Agreement.  If he determines that there has been an Irretrievable Breakdown of the marriage and everything was agreed upon in the Separation Agreement, the judge will order the Divorce.  After the judge orders the divorce, the court will grand a Judgment of Divorce Nisi.  This means that there is a 120 days waiting period before the judgment becomes final.  During this time, you cannot remarry and you are still considered married until the expiration of the 120 days.