Landlord / Tenant Questions

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…]

Who is responsible for the water damage? Landlord or tenants?

Additional  Information:

I am a landlord in Sudbury and one of our tenants reported water and damage in the basement.  When I came to check it out, I discovered that they moved the washing machine (that is provided for their use) and thus the leak and damage.  As the landlord am I required to pay the repairs or are the tenants?  There’s nothing about this in the lease.   Thanks in advance.

ATTORNEY ANSWER:

The tenant is responsible for damage caused by the tenant.  However the proof of something like this can be difficult without someone knowledgeable about that appliance testifying as to the cause of the leak.  I never know why my washing machine is leaking.  [Read more…]

Did my tenants abandon the property? Will I ever get the past due rent paid?

Additional Information:

I’m a landlord of a 3 family in Marlborough.  One of the tenants has failed to make any payment for four months. On arrival to the property to give an eviction notice, no one was there. The property surrounding the house was full of the tenant’s property and there was trash and moldy food in the kitchen.  I talked to the neighbors and they said the tenants had left two weeks prior. The gas and electric were shut off.   So since they essentially abandoned the property, as a landlord do I have the right to dispose of the abandoned property? And do I have any hope of collecting the 4 months rent?

ATTORNEY ANSWER:

The first question is whether the tenant has terminated the tenancy.  There are reported cases where the landlord assumed the tenant had abandoned, only to find out later that the tenant was in rehab, or incarcerated.  The neighbors are not a reliable source of whether someone has moved out.  If the tenant has not returned the keys, then it is better to assume they still have legal possession and bring an action to terminate the tenancy.  You do not have a right to dispose of the tenant’s property.  There is an eviction storage law that requires certain steps to be taken.  The landlord should secure the property and bring it into compliance with the sanitary code, but should not lock out the tenants.  So long as the amount of rent due is less than the small claims dollar limit, an action can be brought in small claims court to try and collect the back rent.  [Read more…]

Does a Property Manager have the right to enter a property without the unit owner’s consent?

ATTORNEY ANSWER:

Yes, under certain circumstances set forth in the law.  The property manager may enter in accordance with a court order, if the premises appear to be abandoned by the lessee, or to inspect within the last 30 days of the tenancy or after either party has given notice to the other of the termination of the tenancy for purposes of determining any damages to the unit.  The lease should provide for access with notice to inspect, to make repairs and to show the premises to a prospective tenant.

[Read more…]

I have several rental units in Massachusetts. One tenant is causing problems.

Additional Information:

My tenant is behind in the rent and is also creating problems with neighbors. When should I contact a lawyer?

ATTORNEY ANSWER:

Effective property management requires many skills, but at some point, when every other effort has failed, will require an action in court to resolve the issues. When a tenancy has reached that point is a judgment call by the owner. However, early contact with an attorney will ensure that once you decide to proceed with legal action, you understand the significance of each step of the process and that your actions will pass judicial review. We can assist you with lease review, proper notices to the tenant and preparation of the legal forms needed to ensure that your agreements with the tenant are enforceable by the court, that tenancies that should be terminated are ended, and those that should be salvaged are resolved in a way that the parties understand their obligations going forward.

[Read more…]

Is it better to use a written lease with my residential tenant or rent to them from month to month?

There are advantages and disadvantages to each option, and your choice depends on your goals and plans for the property at issue. A written lease generally locks both parties into the landlord/tenant relationship for a set period of time. It binds a tenant and can offer protections to a landlord, but also gives the tenant the right to remain at the property through the lease term as long as he/she pays the rent on time. Where a landlord is not sure either that the tenant is a good, long-term investment or is considering selling the property, what’s called a tenancy-at-will arrangement may make sense. In this situation, the tenant rents property monthly and either side can end the relationship with about 30 days advance notice. Tenancies at will can be written or oral.
[Read more…]

How much money can I take from my residential tenant at the start of the tenancy?

Massachusetts law provides that you can collect the following sums:

  • Rent for the first month
  • Rent for the last month, calculated at the same rate as the first month;
  • A security deposit equal to the first month’s rent; and
  • The cost of purchasing and installing a key and lock.

[Read more…]

Should I take a security deposit from my residential tenant?

Security deposits in the residential arena can be tricky. The law is complex and includes mandatory triple damage penalties and legal fees against violating landlords. For this reason, you should carefully consider whether a security deposit makes sense, keeping in mind that taking only last month’s rent from your tenant is far simpler and less risky. Before you take a residential security deposit, be sure you understand all your obligations and are prepared to meet them meticulously.
[Read more…]

What about collecting last month rent?

If you collect last month’s rent, you need to give the tenant a receipt that lists the amount of the rent collected, the address of the property to which it applies, and your name and address. Landlords must pay interest on last month’s rent. The tenant must provide a forwarding address where the interest may be sent annually, and they should have the option of deducting this amount from the rent. The law does not require last month’s rent to be deposited into an escrow account. Where it is, however, a landlord can pay the tenant the actual interest earned rather than the 5% that is otherwise due.
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What happens if a tenant damages my property or fails to pay the rent?

Tenants are generally liable for damages they cause but not for injury to property caused by normal use or wear and tear. Landlords with security deposits can deduct money owed to them for rent or damages at the end of the tenancy, but must follow statutory guidelines scrupulously. This includes providing the tenant with an itemized list of damages, signed under penalty of perjury, and written evidence of repair costs within 30 days of termination of occupancy. Landlords who improperly withhold any part of a security deposit – say, for example, by claiming a tenant caused damage that is not properly attributed to him or her – a suit for triple damages and legal fees could follow. When a landlord does not have a security deposit or the damages exceed what’s held, he/she can pursue a tenant in court for the amounts owed.
[Read more…]