Real Estate Articles

Section 8 Case in Massachusetts

Tenant being evicted for not paying her share of the rent blamed Section 8 for not recalculating her share.  Tenant argued that GLM 186 Sec. 11 required the Landlord  and Court to wait for that adjustment.  The District Court Judge did not agree and that was sustained  on appeal.  The Landlord is not precluded from taking action when the tenant fails to pay their share of the rent.

If you are in need of an experienced Section 8 landlord attorney to assist with you landlord tenant issue, please contact our law office for a case evaluation.

Landlord Breach of Warranty of Liability

By Robert Jachowicz

How does a minor maintenance issue turn into an expensive problem for a Landlord?

The first question is whether your maintenance issue rises to a breach of the warranty.  The judge will consider inspection reports and board of health reports.

If it is determined that the condition breaches the warranty of habitability some significant issues have to be resolved.  How will damages be measured?  Traditionally the Judge will consider a percentage reduction in rent for the time the condition existed.  The theory being the tenant should not pay the full rent for a “substandard” apartment.  The Appeals Court says that both contract and tort measures of damages apply.  So, for example if paint fumes may not much bother an average tenant, then a small reduction in rent would be an adequate damage award.  What if you have a tenant with chemical sensitivities? The Appeals Court says that damages should be measured by the difference between the apartment’s warranted value and its value to the tenant with chemical sensitivities, resulting in a larger reduction in rent and possibly a complete abatement of rent.   The reason is that in tort law the defendant must take the plaintiff as it finds him or her.  It is an error of law not to take the tenants sensitivity into account when determining how much less the apartment is worth in measuring damages to that tenant.

Experienced counsel can minimize a Landlords exposure to these claims.   Contact our law office if you’re a landlord and have questions regarding your legal matter.

Landlord Serves Two Notices to Quit

By Robert Jachowicz

A Landlord takes its chances if more than one ground exists to terminate a tenancy and the decision is made to issue two separate Notices to Quit concurrently.  For example if a tenant is behind in the rent and also in violation of a covenant in the written tenancy agreement, the Landlord could send a Notice to Quit for nonpayment of rent and a Notice to Quit for breach of the Lease.

In a recent District Court Appellate Decision the tenant in Hingham District Court lost the case, but appealed this issue to the Appellate Division.  However, the District Court Judge made no findings (the tenant failed to request them) so the general challenge to the findings in the Appellate Division was dismissed.  Although that appears to be a vindication of the Landlord sending the two notices, the issue was not reached on the merits, and  the appeal took longer than it would have to just do separate notices.  The Notices to Quit to terminate the tenancy were dated April 30, 2015 and the decision of the Appellate Divsion was not rendered until April 17, 2017.  It is hard to view that as a victory for the Landlord.

If you are in need of an experienced real estate attorney to assist with you landlord tenant issue, please contact our law office for a case evaluation.

 

How Landlords Should Handle Counterclaims in Massachusetts

By Robert Jachowicz

Counterclaims and defenses raised by a tenant in an eviction raise complicated issues in Massachusetts. In a recent case the Appeals court said the Trial court Housing Court judge got it wrong and the Supreme Judicial Court said the Appeals Court got it wrong. It is easy to understand why Landlords have trouble navigating their way through the laws and procedures that apply.

If an eviction is for cause a tenant can raise defenses. If the eviction is on some other ground, such as non-payment of rent, the tenant can also raise counterclaims. In a recent case the Supreme Judicial Court instructed a Housing Court judge to treat a security deposit violation, which was filed as a counterclaim in the Trial Court, as a defense to possession. In that case the tenant was awarded $1,300.00, the Landlord was awarded $3,900.00 so the net due the Landlord is $2,600.00. The mistake was not to permit the tenant to pay the balance and stay.

In a more recent decision a housing court judge awarded the Landlord possession and she dismissed the tenants’ counterclaims. The procedural issue the Appeals court did not like was that there was no Summary Judgment Motion filed by the Landlord, and no hearing on the tenants’ counterclaims. The Appeals court was willing in January, 2017 to let the Judgment for Possession stand but remand the case to the Housing Court for a hearing on the counterclaims. However, in March of 2017 the Supreme Judicial Court suggested the Appeals Court reconsider. In May, 2017 the Appeals Court vacated the Housing Court award of possession to the Landlord until after a hearing on the tenants’ counterclaims. [Read more…]

Landlord Retaliation

By Robert Jachowicz

Most Landlords try to work things out with their tenants prior to bringing a Summary Process action in court.  By the time the relationship reaches that point, the Landlord is usually anxious to get started on the legal process.  However, it is at that point, before the case is filed that the Landlord needs to think about whether the Tenant can assert that the action is considered retaliatory by the law.

Retaliation claims are reasonably complicated since there are two laws that apply, one law is a defense to possession and creates a rebuttable presumption of retaliation if the Landlord sends a notice to quit, or files a Summary Process action within 6 months of the tenant taking certain actions.  There is also a counterclaim but the presumption does not apply if the termination is for non-payment of rent.

The damages are at least one month’s rent, or actual damages if greater, attorney’s fees and costs.  If for some reason, the Trial Judge finds for the Landlord on the retaliation claim, and the tenant succeeds after an appeal, the tenant will also be awarded legal fees for the appeal, and legal fees for the trial as well.

Before you bring an eviction you should check with counsel to determine your exposure to a claim the eviction is retaliatory.  If you’re a landlord and have questions regarding the law contact our law office to speak with an attorney.

Important Notice About Your Closing (Buyers/Borrowers)

As you may know, our office represents your lender in matters relating to your request for a mortgage loan in order to purchase real estate. We have commenced an examination of the title and have ordered necessary information to complete the closing.

When these matters are completed and reviewed by our staff we will notify you to arrange a time to close the loan. We will also advise you of any funds you may need to complete the transaction. You must bring CERTIFIED or BANK CASHIER’S CHECKS made payable to our firm for these funds. In addition, you must bring a valid drivers license or passport with you to closing for proper identification. We cannot close your transaction without this. Please do not forget as this is very important. [Read more…]

Representing The Interests Of The Buyer In Real Estate

If this is your first home purchase, or perhaps you haven’t purchased a new home in a while, the process may seem confusing. We hope that our office can make the entire purchase process easy and enjoyable for you. There are a few things to remember.

First, understand that the lender’s closing attorney, and this includes our office if we are representing your new lender, represents the interests of the lender. Therefore, it is not the responsibility of lender’s counsel to advise you on your rights and obligations regarding your new home purchase. Because of this, we highly recommend that you retain your own attorney to represent your interests in this process. Our office can represent you, even if we are handling the closing for your new lender, for a reasonable fee and give you the comfort you need to proceed confidently toward the purchase of your new home. Some of the services we provide when representing buyers are: [Read more…]

What You Should Know About Your Closing (Buyers)

  1. INSURANCE: At the time of closing, please bring with you a homeowner Fire and Extended Coverage insurance policy or binder for such insurance either in an amount at least equal to the total of all new mortgages on the property or 100% of the replacement cost of all insurable buildings and other improvements on the land. IF YOU ARE GOING TO RELY ON THE 100% REPLACEMENT COST AMOUNT AS SUFFICIENT INSURANCE, THEN THE POLICY OR BINDER MUST STATE THAT 100% REPLACEMENT COST IS IN EFFECT. The insurance policy or binder must name all of the persons who will hold title to the property. The mortgage clause adding the mortgagee’s insurable interest to all policies MUST BE WORDED in accordance with the instructions listed in your commitment letter issued by your lender.

    Your insurance agent MUST fax or deliver to our office a copy of a binder for such insurance along with a receipt showing that the first year’s premium is paid in full, at least three (3) business days prior to closing.

  2. [Read more…]

Ways To Hold Title In Massachusetts

THE FOLLOWING INFORMATION IS INTENDED ONLY TO GIVE A BRIEF DESCRIPTION OF THE THREE COMMON WAYS OF HOLDING TITLE AND IS NOT PROVIDED FOR THE PURPOSE OF ADVISING YOU HOW TO TAKE TITLE. IF FURTHER INFORMATION IS DESIRED ABOUT CREDITORS’ RIGHTS AGAINST THE TITLE, ADVANTAGES AND DISADVANTAGES WITH RESPECT TO ESTATE PLANNING AND OTHER PRACTICALITIES, YOU SHOULD SEEK LEGAL COUNSEL FROM YOUR ATTORNEY OR RETAIN AN ATTORNEY FOR ADVICE IN THESE MATTERS.

In order to properly prepare the mortgage documents we require information from you as to how you intend to take title to the real estate.

The three most common ways two or more persons may hold title to real estate are: TENANTS IN COMMON, JOINT TENANTS or as TENANTS BY THE ENTIRETY (tenants by the entirety is only available for married couples.) [Read more…]

Our Certification Of Title To Buyers Of Real Estate

Our duties on behalf of the lender require that we examine the title to the premises. In addition, under the provisions of Massachusetts General Laws, Chapter 93, Section 70, we will also certify title to the premises you are buying. This statute states in part:

"In connection with the granting of any loan or credit to be secured by a purchase money first mortgage on real estate improved with a dwelling designed to be occupied or to be occupied in whole or in part by the mortgagor, the mortgagor is required or agrees to pay or be responsible for any fee or expense charged or incurred by an attorney acting for or on behalf of the mortgagee in connection with the rendering of a certification of title to the mortgaged premises such certification shall be referenced to the mortgagor and to the mortgagee."

The statute further prescribes that: [Read more…]