FAQ: Do I Need to Hire a Lawyer for a Landlord/Tenant Case?

Question: Do I need to hire a lawyer for a landlord/tenant case?

Answer:  As with all legal questions: it depends.  In Massachusetts, a business entity (ex. corporation, limited liability company) must be represented by an attorney in court (except for small claims court).  If your business organization (as opposed to you personally) is involved in a landlord/tenant matter, you need a lawyer.

If you are not a business organization, you do have the option of representing yourself in court.  While some people can represent themselves effectively in these matters, many find these issues too complex to handle without a legal background.  More importantly, many landlord/tenant matters become contentious, with both sides unable to work together for a resolution to the case.  If you find yourself in such a situation, give serious thought to hiring a lawyer for your case.

BLOG URL: http://malandlordtenantlawblog.sherwinlawfirm.com/2014/10/faq-do-i-need-to-hire-lawyer-for.html

Lawful Entry of a Rented Premises

When a landlord rents an apartment, the landlord remains the owner of the property but grants possession of the premises to the tenant(s).  In other words, even though a landlord is still the owner of the property, they no longer have unlimited access to the premises.  Massachusetts law only allows a landlord to enter a rented apartment for a number of limited reasons, such as to inspect the premises, make repairs, or show the apartment to a potential new renter.  

A landlord is required, however, to give the tenant(s) reasonable notice before entry.  While there is no set rule on what "reasonable notice" is, I recommend that landlords provide at least one day's notice prior to entry.  Most importantly, landlords should provide this notice in writing, even if the landlord speaks with the tenant in person.  A quick email is one easy way to do this. 

If a landlord refuses to provide a tenant with notice prior to entry, a tenant can seek damages against the landlord, including an injunction or restraining order preventing the landlord from entering the apartment.  Such steps, however, are often unnecessary; sometimes a cordial conversation between the landlord and tenant is all that is needed to resolve these problems.

BLOG URL: http://malandlordtenantlawblog.sherwinlawfirm.com/2014/10/lawful-entry-of-rented-premises.html

Stays of Execution

Massachusetts eviction law allows a tenant to ask the court to delay their move-out from the property.  This is commonly referred to as a "stay of execution."  An execution is the formal court document that permits a landlord to obtain possession of the premises through the sheriff or constable.  Eviction law allows a tenant to request that the court delay issuing this document and, consequently, postpone the eviction.

As written, the law really only applies to "no-fault evictions", where the tenant is being forced to leave without cause (as opposed to an eviction based on non-payment of rent or violation of the lease).  However, under the right circumstances, the court may be inclined to stay an execution for tenants in other circumstances, if they can show good cause.  The law allows the court to stay the execution for up to six months (twelve months for a party over sixty years of age).

A stay of execution can be difficult to obtain and is left entirely to the discretion of the judge.  The judge will likely want to see good reasons for granting a stay, and proof that the tenant is making a real effort to find new housing.  Tenants have a better chance of getting a stay of execution if they are willing to pay rent for the time they wish to remain in the premises.  

Landlords need to remember that tenants have this option of seeking a stay of execution in an eviction case, and should require the tenant to waive this right as part of any settlement agreement in one of these cases. 

BLOG URL: http://malandlordtenantlawblog.sherwinlawfirm.com/2014/10/stays-of-execution.html

Self Help: No !!!

I'm willing to bet that among the frequently asked questions on landlord/tenant law, the following is at the top of the list:  "If my tenant is not paying his or her rent, can I change the locks of the apartment?  Can I turn off the utilities?"  The answer, in one word: No!

These actions of trying to evict a tenant without going to court, often called "self-help," are against the law.  Not only will this result in civil liabilities, which could include huge monetary damages, a landlord can end up in jail for doing any form of "self help."  Simply put, a formal eviction is the sole means of dealing with a tenant that a landlord wants to get rid of.  This doesn't mean that a landlord cannot try to settle a case with a tenant outside of court, but any interference with a tenant's living situation is a huge problem. 

No doubt, landlord/tenant cases can be frustrating, but landlords are much better off speaking with an experienced attorney instead of trying to take matters into their own hands.  The risks just aren't worth it.

Blog URL: http://malandlordtenantlawblog.sherwinlawfirm.com/2014/10/self-help-no.html

Practice Pointers: Use Mediation to Resolve Landlord/Tenant Disputes

Mediation is an excellent option for anyone involved in a landlord/tenant dispute.  This form of alternative dispute resolution can help parties in these cases save enormous time and money.

Mediation is an opportunity for the parties in a case to meet with a trained facilitator for the purpose of working out a resolution to the problem.  More and more, trial courts have staff mediators available to assist the parties, with some courts (such as Northern Housing Court) requiring parties to meet with a mediator before seeing the judge.  In a mediation, parties are encouraged to freely discuss their case and attempt to come up with a mutually agreeable resolution.  

Mediation is a great option in landlord/tenant matters because trial courts are overflowing with cases, especially on summary process day.  It is not unusual for a judge to have a caseload of up to fifty landlord/tenant cases in a single session (Boston Housing Court reportedly has 150 new cases filed each week!).  Through mediation, many of these disputes can be resolved without the need for a lengthy hearing or trial.

Best of all, mediation is confidential and risk free; parties can still go before the judge if they cannot workout the problem.  With this in mind, mediation should be the first step in trying to resolve a landlord/tenant dispute. 

Blog URL: http://malandlordtenantlawblog.blogspot.com/2014/10/practice-pointers-use-mediation-to.html

Summary Process 101

Evictions in Massachusetts are known as "summary process."  The goal of summary process is found in Rule 1 of the Uniform Rules of Summary Process: "the just, speedy, and inexpensive determination of every summary process action."  In other words, summary process cases are intended to move at a much faster pace than a typical civil action.  While it can often take years for a civil lawsuit to go to trial, summary process cases are intended to be tried only weeks after the filing date.

To begin a summary process case, the landlord must serve the tenant(s) with a notice to quit, which explains the reason why the tenant is being evicted (more on this later).  This notice of quit must provide a date by which the tenancy is terminated.  After this date, if the tenant has not left the premises, the landlord can begin the case.

The start of a summary process case is opposite that of a typical civil lawsuit.  In a typical lawsuit, the plaintiff first files the lawsuit and then serves it on the defendants.  In summary process, the plaintiff/landlord begins the case by serving the defendant/tenant with a summary process summons, which must be obtained from the court.  On this summons, the plaintiff/landlord selects the date that he will file the lawsuit; called the entry date.  After the summons is served on the defendant/tenant, the landlord can file the lawsuit, which must be done at least seven days (but no more than thirty) from the date the summons was served (click here for a useful timeline of a summary process case).  From there, the case begins.

Confused?  You aren't the only one; summary process can be a complicated.  Given the stress and heartache these cases can cause, I recommend seeking legal assistance if you are involved in one of these cases.  Contact me for a consultation.  

Blog URL: http://malandlordtenantlawblog.sherwinlawfirm.com/2014/10/summary-process-101.html

Website:  http://www.malandlordlawyer.com