Monthly Archives: November 2010

5 Biggest Mistakes Landlords Make # 1: Accepting a Security Deposit

I can tell you with overwhelming confidence that accepting a security deposit in Massachusetts is the biggest (and one of the most common) mistakes a Landlord can make. If you ever meet an attorney who advises you to take a security deposit on a residential tenancy don’t walk.. RUN out of their office.

Why is this such a big deal? Chances are you know that when a landlord accepts a security deposit they’re supposed to put the money in an escrow account. Do yourselves a favor and take a look at the statute . What’s the first thing you notice about it? How about this? IT’S OVER 4 PAGES LONG.

Whereas something as complicated as the classification and taxation of recreational land statute is just over two paragraphs long, something as simple as the procedures outlining acceptance of a security deposit is 8 times as long. In our practice we have come across attorneys who have been practicing Landlord Tenant Law almost exclusively for over twenty years… when they get they get calls on security deposits they STILL have to look up the statute.

Some important things to keep in mind regarding the security deposit statute in MA:

When the landlord accepts one he/she must (amongst other things):

  • give the tenant a statement of condition on the unit. This statement must also include specific language as stated in section 15B, 2(c).
  • deposit the money in a separate interest bearing account. The landlord is also required to give to the tenant, within 30 days of receiving the deposit, a statement identifying the name and the location of the bank located in Massachusetts in which the security deposit is being held, the amount being held and the specific account number of the deposit.
  • Provide an accounting of the escrow to the tenant yearly or otherwise provide a 5% interest penalty at the end of the tenancy
  • Also, if there is damage in the unit withholding of any security deposit amount must adhere strictly to the statute. This includes providing the tenant written estimates for repair within 30 days of moving out and a statement signed by the landlord under the pains and penalties of perjury that the apartment was damaged.

Probably the most important (and troubling)  part of this evil piece of legislation is the stiff penalties imposed on the landlord for anything other than their strict compliance. The statute makes noncompliance with the statute a violation of GL ch. 93A which exposes the landlord to liability for multiple damages, attorneys’ fees and costs. That means that if the landlord doesn’t comply with the statute perfectly when accepting a $1,500.00 security deposit he/she could be liable for $4,500.00 in damages+Tenant’s Attorneys’ Fees+costs. This is labeled by many landlords in Mass  as the “Security Deposit Nightmare” and many have found themselves in just such a situation. Make no mistake about it, this statute is less about protecting the tenant than it is about punishing Massachusetts Landlords.

If you are a Landlord DO NOT accept security deposits in Massachusetts.  Do yourself a favor and avoid having to call our office to ask for advice on how to go about getting out of your own security deposit nightmare.

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5 Biggest Mistakes Landlords Make # 2: Inadequately Terminating a Tenancy

This is probably the most-often made mistake that Landlords make. Unfortunately, there are a myriad of ways a Landlord can mess this one up, and it’s usually after this happens that I get calls from Landlords. I always suggest that you at least speak with a competent landlord tenant attorney before beginning the process of terminating a tenancy.

If there’s only one thing you take away from this post it should be this: The only goal that Landlords must have in bringing forth a Summary Process Action is to prove to the Court that the tenancy was terminated properly. If there is anything wrong with the Notice to Quit or the Summary process Summons and Complaint, the Court may dismiss the action.. even AFTER judgment enters in the landlord’s favor!

Here are some comon ways the Landlords muck up the Notice to Quit:

1-Sending a 30-Day Notice instead of a 14 and vice versa.

2-Incorrectly listing the tenant’s address.

3-Not providing a cure provision (which allows the tenant to pay back due rent within a certain time period). This is probably the most often made mistake and the one that I actually get calls from other attorneys on.

4-Incorrectly indicating who the Landlord is.

5-Not Signing the Notice to Quit.

6-Not Serving the Notice to Quit properly (via certified mail or constable)

I could list many more. The point is this: Take the time to call an attorney before you begin the eviction process. They’ll charge you little or nothing to prepare the notice for you. Also, you’ll sleep better knowing you haven’t inadvertently made a mistake that could force you to start from scratch.

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5 Biggest Mistakes Landlords Make #3: Retaliatory Evictions

 

Landlords in Massachusetts often engage in what is referred to by statute as a “retaliatory eviction” even when the landlord has no idea what they’re doing is retaliatory or otherwise prohibited. The Commonwealth, through G.L ch. 239 sec. 2A has created a list of tenant activities which are considered protected by statute. These include:

-Petitioning the Court for redress of grievances, the subject matter of the action being the residence or dwelling which they currently occupy;

-Joining a Tenant’s Union or Association;

-Calling the local board of health or health department to complain about the condition of the dwelling, or

-Requesting, in writing to the landlord, that certain repairs be made.

So how exactly are these activities protected? If a Landlord initiates an action to terminate the tenant’s tenancy by either:

(a) Sending the tenant a 14-Day Notice to Quit or 30-Day Notice to Quit, or

(b) Initiates a Summary Process, or

(c) Otherwise engages in some activity that materially alters the tenancy

within 6 months of a tenant engaging in either of the top three protected activities, there exists a rebuttable  presumption that the landlord’s actions were retaliatory. What this means is that if the Tenant asserts retaliatory eviction by means of an affirmative defense or counterclaim, the burden is on the Landlord to prove that the tenancy wasn’t terminated or otherwise altered in retaliation for the tenant’s engaging in the protected activity.

This statute is particularly hard for Landlords to comply will, as recent case law has provided that the statute IS (emphasis added) applicable to non-payment cases. (You read that right attorneys out there).  In other words, what many street-wise tenants will do is first engage in some protected activity, then stop paying the rent.

My Advice: Before you send out that Notice to Quit, make sure you speak to a landlord-tenant attorney. They can review the facts and independently asses whether 239 2A will play a hand if litigation is anticipated.

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5 Biggest Mistakes Landlords Make #4: Unknowingly Discriminating Against Children

Many  Massachusetts Landlords know about the law ( MGL 111 s. 189A-199B etc) that prohibit the renting of a lead-paint apartment to a family with a child under six years old. What most landlords don’t know is that it is illegal to REFUSE renting to a family with a child!

Specifically, MGL 151B s. 4(11) provides:

..It Shall be illegal for the owner, sublessees, real estate broker…to refuse to rent or lease or sell or otherwise to deny to or withhold from any person [an apartment] because such person has a child or children….

A head scratcher isn’t it? On their face, the laws contradict each other….RIGHT?  The SJC however, has ruled that the laws do not contradict each other, but rather that they work in tandem. Not only are you subject to criminal liability for renting to a child with lead-based paint in your unit, but you are prohibited from refusing to rent to them! If you know your apartment has lead paint, you advertise, and you are approached by a family with children, you can not refuse renting to them! What does this translate into? It means that you have to de-lead the unit which can cost into the tens of thousands of dollars, just to accommodate the under-6 year old!

What to take away from all of this: You can not advertise online or in print in any way that discriminates against renting to children. Logically, this would include provisions in your ad that state “This apartment has lead paint” or something along the lines of “Hey.. If you have a child under six.. there’s no way I’m renting to you!” Take heed, as even the best of us in the rental industry have fallen victim to this legislative conundrum.

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Mistake # 5: The Self-Help Eviction

I can’t tell you how many phone calls I’ve gotten from Massachusetts Landlords that have engaged in self-help evictions over the past year. Self help evictions are when the Landlord either:
1-Physically locks the tenant out of their apartment by changing the locks;
2-Interferes with the tenant’s utilities so as to make the premises unlivable (for example, intentionally turning the heat off in the middle of winter), or
3-Otherwise interferes with the premises making the apartment uninhabitable.

Under G.L ch. 186 secs. 14 and 15F a landlord that engages in this type of activity is not only liable civilly for multiple damages, attorneys’ fees, and costs, but CRIMINALLY. That is, Landlords that engage in this type of behavior can be put in jail. I recently witnessed the statute(s) in action in Northeast Housing Court when a Landlord was placed under arrest in the Court Room after it was established that he intentionally locked a mother of three out of their Lowell Duplex.

To avoid liability under the self-help statute, Massachusetts Landlords need to proceed lawfully and commence a summary process action to evict the occupants. You’d be surprised how many landlords take the law into their own hands and attempt one of the above.

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Top 5 Mistakes Landlords Make.

This is the first of a 5-part series on “Top 5 Mistakes Landlords Make.” Check back to see what rounds out the five most frequent mistakes I have come across as an attorney and as a landlord for the past 16 years.

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Welcome to the Rental Attorney Blog

Welcome to the Rental Attorney Blog. My name is John Keramaris, I’m an attorney from Woburn, MA. I devote over 60% of my practice to Landlord Tenant matters. This includes Summary Process Evictions, Code Enforcement and Rental Premises Liability.

Over the next day, week, month, year I will be posting articles and linking videos, and sites relevant to Landlord Tenant Law in MA.

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