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Category Archives: Residential Landlord Tenant

What can a Landlord Require a Tenant to Pay Prior to Renting an Apartment?

Massachusetts Landlords are limited in what they can lawfully charge a tenant before the commencement of a tenancy. Most landlords know what they can charge and what they cannot. With this reason, I would say most abide by this rule and, to be honest, I would be more worried about a tenant trying to take advantage of a landlord by trying to get the landlord to lower or reduce these fees. With that said, a Massachusetts Landlord can lawfully charge:

  1. First full month of occupancy; and
  2. Rent for the last full month of occupancy calculated at the same rate as the first month; and
  3. A security deposit equal to the first month’s rent provided that such security deposit is deposited in accordance with the security deposit law; and
  4. The purchase and installation cost for a key and lock.

Anything more than what was mentioned above cannot be enforced against a new occupant. As a tenant, you should take note of what is allowed and what is not. As for landlords, these fees are used to protect your interest in the property. I would not recommend reducing or changing a policy just because a tenant does not think the fees are fair. In most cases, charging these fees in advance, is in your best interest as a landlord.

Can My Landlord Enter my Apartment When I am Not at Home?

A landlord cannot enter your apartment just for any reason. There are, however, some very important reasons why a landlord may enter your apartment and those reasons are set forth in Massachusetts General Law 186 Section 15B. In addition, agreements between a landlord and tenant where the landlord reserves the right to enter for whatever reason are unenforceable.

Some common reasons where a landlord may lawfully enter an apartment include:

  1. To make repairs to the premise;
  2. To inspect the premise;
  3. Show the property to a prospective tenant, purchaser, mortgagee or its agent;
  4. In accordance with a court order;
  5. If the premise appears to have been abandoned;
  6. To inspect, within the last thirty days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, for the purpose to determining the amount of damage, if any, to the premise which would be cause for deduction from any security deposit held by the lessor pursuant to this section.

Even with these common exceptions, most good landlords will inform you in advance of their intent to enter the apartment. This is a good list of examples where a landlord can lawfully enter an apartment, but it is by no means the only examples that a court would say is acceptable. If you feel like your rights have been violated, you are encouraged to talk to a Massachusetts Landlord-Tenant Attorney.

What to Expect During an Eviction Proceeding in Massachusetts.

Everyone who has to appear in court to argue an eviction knows the date and time, but not much else. Most people do not know the specifics of what actually happens nor what to expect from the very time they walk in. This article will run down some of the important things to know before you go to court to argue your summary process case. There is no reason to be kept in the dark. Every court has their own quirky rules so this article is designed to give you the nuts and bolts only.

The Basics:

One of the most important things, and this should go without saying, show up on time. You do not want to be late for any court appearance; showing up late will set a bad example. Sure, you will still probably be able to be heard, but do you really want to take that chance? Most Summary Process hearings start at 9:00am. This means that you and many others will be rushing the doors of the courthouse for first call, and you all have to go through security. Since so many people have to be at the same place at the same time, there is usually a bottleneck at the security checkpoint. You should plan on being at the courthouse at least a half hour early to avoid missing first call.

Second common sense thing to know: dress appropriately. Please do not wear sweatpants and flip-flops. This should, however, not affect the outcome of your case, but keep in mind that you will be surrounded by people wearing suits. I am not saying you have to wear a suit, just dress appropriately. Appearance is important in our society, especially in a courthouse. Think of it this way, you want to blend in with the right people.

Final common sense thing to know: turn your phone off. If you must bring it with you, turn it OFF. Do not turn it to vibrate. If it rings in court you run the risk of having it confiscated.

Once Inside:

Once you have arrived and found the Housing Court Department, you can go into the Clerk’s office to determine which courtroom the cases will be heard in and obtain a list of cases that will be heard that day. It is a good idea to review that list (the docket) to make sure your name is listed. If it is not listed, you should immediately ask an employee of the Housing court and they will help you resolve the issue. It is possible that your case was filed in the District court which has the same authority to hear eviction cases.

Once you confirm your case is on the docket and the appropriate courtroom, you can find a seat in the courtroom for first call. If the courtroom is still locked, wait outside until a staff member opens the door to announce first call. When everyone has filed into the courtroom, the Clerk will begin reading the list of cases for the day. He/She will read both the plaintiff’s name (the person bringing the action) and the defendant’s name (the person responding), and each party must respond with their respective title when the clerk reads their name, which is either “plaintiff” or “defendant.” This is the court’s way of taking attendance.

After the Clerk confirms that both parties are present, they will either assign your case immediately to the judge or to a housing specialist. The Clerk will tell you whether you should appear before the judge or the hosing court specialist after both parties have checked in. After you confirm with the Clerk that you are present, you can leave if you can do so quietly without disturbing anyone. Outside the courtroom find yourself a place to sit and wait.

After everyone has been checked in and assigned to either the judge or the housing specialist, it becomes a waiting game. Some people like to call it a “cattle call.” This means that you sit and wait to be called into the courtroom or the hosing specialist’s office.

Most summary process cases (evictions) are heard by the housing specialist fist. They typically callout the names’ of the parties and bring you into an office. In the office the housing specialist will introduce himself and ask each party to do the same. After everyone is introduced, they will ask the plaintiff to run down the facts of the case and what they are seeking. The defendant then responds with their interpretation and any defenses they have to the eviction. This should be a calm, civil discussion. The housing specialist, who is essentially a mediator, has no authority to bind the parties, so they will most likely allow you to say anything you want if it is in the interest of a settlement. The housing specialist will also tell you what is legal and what is not with regards to a settlement. Don’t be quick to dismiss this process. If you know the outcome will be the same before a judge or if you know that you have no legal argument, don’t waste the court’s time. This type of behavior will only irritate the judge. Most cases resolve during this process. The most common reasons are: you are taking a risk leaving the decision to a judge; and, you can usually work out the same agreement with the housing specialist. If and when an agreement for judgment is made, the housing specialist will put your agreement for judgment in writing for both parties to sign. After the document is signed, it goes to the judge for final decision and to confirm that everything contained within the agreement is lawful. That is it, you can leave if you agree to judgment with the housing specialist. If there was a problem with the agreement for judgment, a member of the court will notify you at a later date and what would be needed to correct the problem.

If your case was assigned immediately to the judge or if you were unable to reach an agreement for judgment with the help of the housing specialist, you will have an opportunity to be heard by a judge. At this point, you should have a seat in the courtroom and wait for your case to be called. Please keep in mind that if you have no lawful reason for not agreeing to judgment with the help of the housing specialist, you run the risk of irritating the judge.

Once you are in the courtroom, the clerk or another member of the court will help everyone get settled. Just listen to what they say and they will instruct you where to go. Once your is called, step forward and introduce yourself. Do not spill your guts right away. The judge will instruct you on how to begin, however, this typically begins with the plaintiff and then the defendant. Remember to speak LOUDLY, think carefully before you respond, be respectful, and stand when you speak. You will have a chance to speak so do not interrupt anyone, especially the judge. Once the judge is satisfied that he/she has heard enough, each party is usually allowed to give a closing statement, which is a short recap.

Everything in the courtroom moves fast, a lot faster than you think. You have to know what you are going to say to be effective. Stay confident and listen to the questions that you are asked and do not volunteer anything that was not asked. It is ok to be nervous, but do not let the nerves impact the outcome of your case.

Keep in mind that each court is a little different, so ask a member of the court of any procedure that you are unsure of, they are usually more than willing to help.

Finally, the judge does not normally say how he/she is ruling at the end of the summary process hearing. They typically take everything under advisement and issue a judgment the following day. You will receive the judgment in the mail. If you do not receive the judgment in the mail, you can contact the Clerk’s office and they will be able to find it for you.

There you have it, a rundown of what to expect the day of trial. This article is long, but it does no justice to the intricacies or idiosyncrasies of the court. Most people do not spend a lot of time in court so I hope that this was some help.

Massachusetts Consumer Protection – Unfair and Deceptive Trade Practices

If you have ever felt that a business had used unfair or deceptive practices against you for personal gain and thought you had no recourse, you were wrong. Massachusetts and the United States prohibit the use of “unfair or deceptive” practices by a business. Each agency has created various consumer protection laws that seek to hold business accountable for these unfair and deceptive practices. The Federal Trade Commission regulates the wrongdoings at the federal level and the Attorney General’s Office of Consumer Protection regulates the practices at the state level.  Both of these regulatory agencies provide enforcement by the government to stop the practices and by the individual’s suit for damages.

In order to bring a consumer protection action, you must be the victim of unfair and deceptive acts that occur “in the conduct of trade or commerce.” This means that you must have been wronged by a business or a person who regularly sells the goods sold or regularly provides services sought.  Therefore, this does not cover private transactions between individuals. Such as the private sale of a used car or sale of old furniture, unless you can prove that they conduct sales of the like on a regular basis for profit.

An unfair or deceptive trade practice occurs when a seller acts unfairly to or deceives a buyer.  Yes, I know, this is a circular explanation, but the act is violated by simply that.  This means that any action by a business that is unfair or deceptive is unlawful. The statute specifically outlines some practices that are considered unfair or deceptive, such as: false advertising, misrepresentation, or deceptive pricing practices. However, if you have been wronged by a business and it is not clearly within the statute, you may still have a claim for damages if the act was unfair or deceptive.

If you feel that you are the victim of an unfair or deceptive trade practice, you should contact a lawyer who can help you fully analyze your situation. After review, you must deliver a 30-day demand letter to the merchant. This letter describes the harm you have suffered as the result of the merchant’s unfair or deceptive actions, how you want to be compensated or how you want to resolve the matter. The merchant has 30-days to respond to your offer in writing with an offer to settle.  You can find examples of these letters online through various Massachusetts agencies.

If the merchant fails to respond within the timeframe, you can proceed with a claim against the merchant. Also, if the merchant does respond and you feel that their offer is inadequate, you can proceed with filing your claim. Cases involving consumer protection matters are usually heard in the Small Claims Court, the District Court, the Housing Court, or the Superior Court. Please be aware that if the merchant does make an offer to settle and you reject it, if the court find that the original settlement was reasonable, you will be limited to the amount offered and will not be able to collect your attorney fees or costs of brining the lawsuit.

If a court finds that a merchant did not make an offer to settle or made an inadequate offer to settle, the court can grant the following if it finds that you had a valid claim: the court can award actual damages or $25.00, whichever is greater; an attorney fee; costs and fees; and between two to three times the damages if it find that the merchant’s conduct was “willful or knowing.” The whole purpose of the law is to put you in the same position you would be economically, had the merchant not breached the consumer protection law. Getting the two to three times damages only happens if you can prove that the merchant’s actions were “willful or knowing,” which can difficult.

In conclusion, if you have been wronged by a business, you are entitled to compensation. You should gather your evidence and seek the advice of counsel who will be able to organize and prepare you for what will happen next. Also, keep in mind that you may have a claim where a lawyer will represent you without a fee, as the court can grant an attorney fee as part of the judgment.

Lead Paint: Landlord’s Duty

Lead paint is toxic, dangerous to children, and can be found in almost all homes built before 1978. The Commonwealth of Massachusetts knows this and has developed numerous laws to protect tenants from exposure to lead paint and to help those tenants who have lead poisoning seek compensation. This article will discuss the dangers of lead paint, notice requirements, when an apartment needs to be delead, the requirements for lead abatement, and an owner’s liability.

Dangers of Lead Paint: children are the ones who are most often affected by lead poisoning, and this is why the lead paint laws center around their best interest. Children are typically affected by lead poisoning more than adults because – hopefully – adults know enough not to eat paint chips. Although this is not the only way to get lead poisoning, it is probably the most common. When excessive amounts of lead enter a child’s system, a child can develop a decreased IQ, shortened attention span, experience speech delays, hyperactivity, regression of recently acquired skills, irritability, or loss of appetite.  These impairments can result in inpatient or outpatient therapy to help treat the lead poisoning, which even after treatment can leave the child with lasting physical and/or mental impairments. The Department of Public Health and the Center of Disease Control have set standards to determine what is considered safe blood levels.

Notice Requirements: Mass. General Law Chapter 111 § 197A(d) sets forth a notice requirement upon a landlord who is renting a property with lead paint. A landlord must inform prospective tenants about the hazards of dangerous levels of lead in a home and how they can protect themselves from exposure. This is done, in part, by giving the tenant a standard notification brochure that informs them about the hazards of lead. It must outline the symptoms indicative of lead poisoning, medical treatment used to combat lead poisoning, and precautionary measure that can be used to reduce the risk of exposure for young children (it also includes other important parts of the law and gives contact numbers for lead poisoning. Please see a brochure for a complete understanding). This brochure can be found online and is designed to provide the tenant with a clear illustration of the law. In addition to having to provide this brochure, the landlord must tell the tenant where lead paint located on the premise. A failure to comply with these laws can result in a fine that cannot exceed $1,000.00.

When a Premise Must be Delead: The OWNER of a property containing dangerous levels of lead must obtain a letter of compliance or interim control in the following circumstances (meaning, remove the lead/abate):

  1. If a child under age six resides in the home, regardless of whether there has been a lead inspection; or
  2. The owner receives an order to delead because a child under six years of age resides there or a child under six, who is lead-poisoned, has resided there within the past 12-months; or
  3. The owner receives an order to delead because a child under six years of age who is lead poisoned resides there, in which case the owner will be required to abate the issue.

Requirements of Lead Abatement: All abatement procedures must be completed by an authorized person, usually a licensed deleader. An owner or agent can perform some of the work, but not until the premises is inspected by a licensed lead inspector and the owner received the proper licensing to remove the lead himself. Abatement usually requires that five feet from the floor up be properly treated. This five-foot area is called the “accessible, mouthable surface.” The inspector will tell you what will need to be done for a proper abatement and, you must know, this never means simply painting over the area with non-lead paint. This can be an expensive process for the landlord, but it is required by law.

Owner Liability: An owner is liable for all damages caused to a child under the age of six who resided in a unit with lead violations that causes the child’s blood to exceed the levels that the Department of Public Heal defines as lead poisoning.

No landlord wants to have to pay for a costly deleading, but doing so can prevent a costly suit that can come about from a child getting lead poisoning. In addition, there is not much that can be done to prevent the state from forcing you to delead. This is true even if you rent to a person that does not have a child and then he/she has a child. Also, stating that you will only rent to people without children is an entirely different issue, and it is also illegal to do in Massachusetts.

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.

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.

My Landlord Didn’t Pay His Mortgage, Do I Still Need to Pay My Rent?

So you have been faithfully paying rent to your landlord for years, and just a few days ago you find out that your landlord has not been faithfully paying his mortgage.  Now what happens? How is the foreclosure going to affect your rights as a tenant?

The good news is, your rights do not significantly change.  You are still the lawful tenant, even after the foreclosure auction.  Just because there is a new owner of the building does not mean that you have to immediately leave.  Sure, you might find that the new owner wants you to leave, the new owner may even try to persuade you into thinking that you have to leave.  If the new owner wants you to leave, he has to follow the same procedure as any other landlord would.

It is important to mention, you still have to continue to pay your rent.  After the foreclosure, you will have to determine who the new owner is and how you should be paying him.  This is important.  Most new owners, if they do not want you to remain on the property, will intentionally make an effort for you not pay them.  This will, in short, make it easier for them to evict you later on.  You should do your due diligence and try to locate the new owner and make payment to that person.  By doing so, you preserve your interest in the property.  Even if you cannot locate the appropriate person to pay you should be putting that monthly payment aside, just in case the new owner seeks payment later.

If you had a lease agreement with the previous landlord, this agreement terminates.  The lease agreement terminates, not the actual tenancy.  This is because a lease is automatically converted into a tenancy at will after a foreclosure.

In conclusion, your rights might not significantly change, but you have to be aware of the situation and understand some of the tactics that a new owner might use to better themselves.  If you feel that a new landlord is trying to take advantage of you, you should contact an attorney to help you understand your rights.

My Tenant’s Not Paying

Lets face it, when a tenant does not pay his/her rent, your rental property is probably not profitable.  Times are tough and a lot of people are having trouble paying their bills, but without your rental income, how are you suppose to satisfy your own obligations?   It is better to address the situation as soon as it arises so you do not lose months of rental income.

It is important to know that you can NEVER just throw your tenant’s belongings out into the street and lock him/her out.  I repeat, YOU CAN NEVER USE SELF HELP FOR NON-PAYMENT OF RENT!  By doing so, you will create a whole other problem.

This is what the typical eviction entails:

  1. Notice to Quit
  2. Summary Process
  3. Entry Date
  4. Trial Date
  5. Entry of Judgment
  6. Appeal
  7. Execution
  8. Eviction
  9. Notice of Eviction
  10.  Sheriff Can Move Tenant out

This is quite the list, and I will be honest, I left out some other areas for readability.  It is a difficult process to evict someone in Massachusetts if you do not know what you are doing, so please consult a lawyer if you feel overwhelmed.  This will overview the basic skeleton of what you should expect.

Notice to Quit: The notice to quit is the legalee for: the document that tells the person to vacate, your tenancy is being terminated.  There is no real format that needs to be followed, but the document should include the current date and the vacate date, it should also be so certain that it cannot be reasonably misunderstood to be a document other than one telling the tenant to vacate.  Be cognizant of whether this is a tenancy at will or a lease.  This is because, if it is a lease, your notice to quit must comply with the terms of the lease agreement.  This document can be sent in a variety of way, but best practice would be to have a sheriff or constable serve the notice to quite.  This way the tenant cannot deny delivery.

Summary Process:  Also known as the summons and complaint, which are the legal documents that start the eviction process.  These documents tells the tenant why the landlord is evicting them and why they terminated the tenancy.  It is important to know that it cannot be filed until after a tenant refuses to leave after the vacate date on the notice to quit.  In addition, it must be delivered to the tenant by a sheriff or constable.

Entry Date:  Is the deadline by which a landlord must actually enter or file the complaint with the court and prove that he/she has served the papers on the tenant. This is a statutorily prescribed time that will require you to do some research or ask for assistance.

Trial Date:  The date that the trial is held, unless the tenant files a discovery form or transfer form.

Entry of Judgment: Almost at the end.  The court is now able to enter judgment, and they can enter a judgment as early as the day after the court makes its decision.  Meaning, the court will hear a case and then make a ruling, based upon the argument presented.  This decision can come as early as the day after the case being argued.

Appeal: Tenant or landlord must appeal within 10 days from the entry of judgment.

Execution:  This is the prize.  This is the document that a landlord is waiting for.  The landlord can get this document from the court and give it to a sheriff to serve.  The Sheriff serves the execution on the tenants, which tells the tenant that the landlord now has the leal authority to have him removed from the property.

Notice of Eviction:  The notice of eviction is the process of the Sheriff delivering the Notice of Execution.  It tells the tenant that he has 48-hours to vacate by order of the court.

Sheriff Can Move Tenant Out:  If the tenant refuses to leave, the Sheriff can now move the tenant out after the 48-hours has expired.

This is a lengthy process.  It typically takes two months to evict someone who does not want to leave.  It should be noted that it typically takes an experienced person at least two months to evict a tenant.  If for some reason a step is missed in the procedure, or an error is made, you may need to restart the process from the beginning.