COMMON MISTAKES:

A Practical Guide for the Massachusetts Landlord

By: Jack O’Donohue

About the Author

John K. “Jack” O’Donohue is a Massachusetts Real Estate Attorney specializing in transactional real estate law. He assists clients with all legal matters associated with acquiring, selling, or securing interests in real property. Clients range from large financial institutions, local banks, small businesses, trusts, and individuals.

O’Donohue Law specializes in real estate closings, estate planning, and business law. Our clients are located throughout Massachusetts and New Hampshire.

Jack received his B.S. in Economics from Trinity College (CT) and was awarded his J.D. from the Massachusetts School of Law at Andover. He is admitted to practice in the Commonwealth of Massachusetts and before the United States District Court for the District of Massachusetts. He is a 2013 Recipient of the Merrimack Valley business magazine’s “40 Under 40″ Award.

Jack lives in Andover with his wife Jennifer and their three boys, Patrick, John and Liam. He is a member of the Board of Commissioners for the Andover Housing Authority; functions as the club administrator for the Rotary Club of Andover; and serves on the Board of Directors for the Essex Art Center in Lawrence, MA.

Outline

The Condition of the Unit

The Application

Creating the Tenancy

Lead Paint

Security Deposits

Discrimination

Retaliation

The Notice to Quit

Summary Process Eviction

Contested Evictions

Recovering Possession

The Condition of the Unit

Review the State Sanitary Code for compliance.

Call the local board of health for a pre-rental inspection.

Repair bad conditions immediately!

Breaching the Implied Warranty of Habitability or the tenants right to Quiet Enjoyment entitle the tenant to damages of three months rent plus reasonable attorneys fees and court costs.

The Application

Do not consider renting to someone without a completed application.

Check prior Landlord references.

Run credit reports.

Verify employment.

Treat everyone the same!!

Creating the Tenancy

Prepare a Lease Agreement. The Lease must identify:

the parties the lease term term rent responsibility for utilities amount of security deposit (if any) amount of last months rent restrictions on tenant behavior

Lead Paint

Provide the tenant with a Tenant Lead Law Notification and Certification

Obtain a Letter of Compliance from a Lead Inspector.

Security Deposits

The security deposit is the tenants money.

Provide a Statement of Condition

Provide a Receipt.

Keep the money in a S.MA.R.T.™ place.

Separate interest bearing account, located in MA, beyond the Reach of your creditors, and easily Transferrable.

Return the money (plus interest!) within 30 days. You may deduct for the following:

unpaid rent, unpaid tax increases, and reasonable amount to repair any damage

Discrimination

You are obligated to make reasonable accommodations and reasonable modifications to allow a disabled person to rent and enjoy a rental unit.

reasonable accommodation: a change in the rules, policies, practices, procedures, services, or a physical modification.

reasonable modification: a change to the rental unit at the tenant’s expense that allows the tenant full enjoyment of the apartment.

Discrimination

You cannot refuse to show or rent an apartment on the ground that it contains lead paint. You may delay the start of the tenancy (by up to 30 days).

You may not discriminate against recipients of federal, state, or local public assistance.

You may not discriminate on the basis of race, color, national origin, ancestry, sex, sexual orientation, age, marital status, religion, etc.

Retaliation

This is a complicated law. The wrong communication may cost you thousands of dollars.

Mostly, this claim arises when a tenant calls the board of health for an inspection.

Stay calm, and consult with a Massachusetts Landlord-Tenant Attorney.

The Notice to Quit

Before starting a Summary Process eviction, the lease must have expired or the tenancy must be over.

The notice period depends on the tenancy, reason, and language of the lease (fault, no-fault, non-payment).

The notice period starts when the tenant receives the notice. In court, the landlord will have to prove this date.

The Notice to Quit

For tenants without leases, a rental period notice to quit does not expire after thirty days. The notice expires on a date the rent is due.

The notice to quit and the summary process complaint must allege identical reasons for terminating the tenancy.

Summary Process Evictions

Housing Court vs. District Court factors:

cost ($140 vs. $200)

convenience

potential delay

court personnel

appeals (straight to Appeals Court from Housing Court vs. appellate division of the District Court)

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Summary Process Evictions

If you conduct business as a corporation, limited partnership, or trust, and the complaint is not signed by an attorney, it is subject to dismissal.

The tenant must be served with the summons and complaint at least seven days prior to the entry date.

Before the entry date, the landlord must file the original summons, a copy of the notice to quit, and the entry fee.

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Summary Process Evictions

The tenant must answer the complaint before the next Monday.

The Trial is held the following Thursday* (*date varies for Housing Court)

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Contested Evictions

The Answer Form

Discovery (postpones eviction trial date two weeks)

If the tenant contests the eviction, you would be wise to consult with a Massachusetts Landlord-Tenant Attorney.

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Recovering Possession

The tenant did not show up in court. Its been ten days. You have the execution. Now what?

No Self-Help! What does that mean?

If you unlawfully remove or lock-out a tenant, be prepared to pay thousands of dollars in damages.

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Thank you for reading...

COMMON MISTAKES: A Practical Guide for the Massachusetts Landlord

By: Jack O’Donohue jack@odlawllc.com (978) 475-4896