Landlords Could Be Liable For Tenants Criminal Acts

A recent case is a reminder that as a result tragic accident in a rental property, a Landlord could be found liable if the Landlord is on notice of a tenant’s potential criminal conduct. In this case a second floor tenant fired a rifle through the floor killing the first floor tenant in her bed. The estate sued the Landlord claiming the Landlord was negligent letting the second floor tenants live there.

The Court did not find a duty in the Landlord to take action against the second floor tenants who had not committed any prior acts of violence. The legal standard is that for the Landlord to be liable for negligent conduct she must have failed to discharge a duty of care owed to the victim, harm must have been reasonably foreseeable, and the negligence must be the proximate or legal cause of the victim’s injury.

The general rule in Tort Law is that Landlords owe a duty of reasonable care to tenants and lawful entrants regarding premises that the Landlord controls. It is a reminder that Landlords should take that duty seriously.

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.

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.

Massachusetts Child Support Guidelines – Effective August 1, 2013

Massachusetts has revised the Child Support Guidelines with the new guidelines taking effect on August 1, 2013. The guidelines adjust the formula for child support and provides judges with more use of their discretion and takes into account the parenting plan.

Read the new Massachusetts Child Support Guidelines.

Divorce and the Business Owner: Protecting the Business

Some marriages may last for decades, others just a few years. No matter how long a marriage lasts, divorce can have a profound effect on a business, unless the business owner took steps ahead of time to minimize the impact of divorce.

One of the best ways to minimize the impact is with a prenuptial agreement. In the event of divorce, a prenuptial agreement can prove invaluable in protecting a business and its assets. Massachusetts considers a variety of factors when deciding how to divide a marital estate, and a prenuptial agreement can help protect a business that would not otherwise be protected. In order to ensure that a prenuptial agreement will be upheld, it is important to consider the following factors:

  • Both parties should enter into the agreement willingly.  Neither party should feel pressured to accept the terms of the agreement.
  • Full financial disclosure must take place on both sides.  This includes an exchange of financial information including assets, liabilities, salary, etc.
  • Both parties should have their own attorneys, or be given the opportunity to seek independent legal advice.
  • The terms of the agreement must be fair and reasonable at the time of execution and at the time enforcement is sought. [Read more…]

How Do Divorce Modifications Work In Massachusetts?

At the time of your divorce, you likely address issues regarding child support, custody, health insurance, college education costs, and division of property. However, not all agreements and judgments contemplate the future, or others go through changes that warrant alterations to an original agreement or judgment. This is why some people need to return to court to modify prior agreements or judgments. It is important to learn how these modifications work.

Change of Circumstances

One of the most important things to know is that you must have a material change of circumstances to return to court regarding a modification. This change of circumstances can equal a major move, a job change that affects the current custody arrangement or a change in income which affects a support order. Talk to a qualified attorney first to determine if your circumstances warrant a modification to avoid unnecessary time in court.

What Can Be Modified?

The Separation Agreement dictates what provisions may be modified in the future.  These provisions are known as merging.  The most common provisions of an agreement that merge are child related issues, health insurance, and possibly alimony.  Provisions that do not merge are called surviving provisions.  Surviving provisions are not modifiable, even due to a change in circumstances.  The most common surviving provision in an Agreement is the property division. [Read more…]

We’re getting divorced and grandparents want visitation too.

Additional Information:

My husband and I are getting divorced after an 8 year marriage. We’ve agreed to try to keep a sense of normalcy for our 3 young children, so they will live most of the time with me in our home in Sherborn but we haven’t yet come to an agreement about when they will stay with their dad and both sets of grandparents want to see the kids too. Is this something that can get written into the divorce agreement?

ATTORNEY ANSWER:

Yes, although it isn’t typical to provide for grandparent visitation in a Separation Agreement, if you can agree on it then you can include it.  Visitation scheduled can be as detailed and specific as necessary.  [Read more…]