Since publishing an article last year about the trials and
tribulations of the small landlord, I believe the problems
addressed in that article persist. In a consumer-friendly state
like the commonwealth of Massachusetts, the laws (i.e., statutes,
court rules and the cases interpreting them) weigh heavily in favor
of tenants. The core issue is the basic human requirement for
shelter that should be considered in seeking common ground for
preventing or at least reducing homelessness. Homelessness is a
serious social and political problem that permeates our economy.
Despite the severity of the issue, too often it is the small
property owner who is targeted for its cure. Thus, the right of a
small property owner to rightfully obtain possession of his or her
own property due to tenant behavior or business necessity is
frequently thwarted by actions that on the surface are intended to
protect the rights of individuals who lack means.
When moving into a residential rental property, an individual
agrees to pay the owner a set amount each month in exchange for the
right to continue to occupy that property for a contracted period
of time. The difficulty of resolving disputes between property
owners and their residential tenants in Massachusetts results in an
economic necessity for the owner to pay an outgoing tenant money as
incentive to leave at the end of the contract in order to avoid
being mired in a legal battle to obtain possession of his or her
own property. Such a result was certainly not the intention of the
statutes, court rules and the cases interpreting them. However, the
use of such tactics has become common practice.
I was recently involved in a case in which the owner needed to
raise the rent to market value -- an amount the tenant could not
pay. This particular case involved both disabilities and the
receiving of government benefits. After commencing suit, the
landlords were accused of discrimination, negligence, infliction of
emotional distress and alleged inspection violations. Although such
accusations would never have been made had the landlord not sought
to collect a higher rent, these otherwise valid tactics are often
successfully used to indefinitely postpone an eviction, regardless
of the legitimacy of the claims to a specific fact pattern and
regardless of the very real need some small landlords may have to
gain possession of their property. Even if owners agree to pay
"cash for keys," a tenant often remains in a position to dictate
other, often overreaching, terms.
It is a common practice for tenants to allege violations of the
Sanitary Code to fight evictions. While the tenants may refuse to
allow inspections to ensure there are no cracks in walls, loose
tiles or an infinite number of other miniscule conditions, tenants
rarely inform their landlords about such needs for repair before
facing eviction. As soon as they are served, however, the war is on
-- frequently with the pre-printed forms made available by pro bono
legal services groups. Although such matters do not legally
constitute a defense to an eviction unless reported to the landlord
or the local board of health prior to a notice to quit
served by the landlord, there is never hesitation to try to
obfuscate the issues, including raising such facts as the tenant
being disabled, over 60 and/or that a disabled person is living
with them. The raising of any of these issues can result in an
automatic stay for between six and 12 months. Although the legal
services are performing the services for which they were rightly
established, our society in general and the current system of
resolving landlord-tenant disputes turns completely ignores the
plight of small landlord and the responsibility of a tenant to
conform to his or her responsibilities. Not only does this approach
fail to appropriately deal with the problem of homelessness, it
puts the small landlords in jeopardy of losing their property or
being forced into bankruptcy, or both.
Another big hurdle arises in cases involving "cause" to evict.
Among the basic responsibilities of a landlord is the
responsibility to act when the rights of one tenant are violated by
the actions of another tenant. However, even if a landlord fulfills
the duty to commence an action against the "problem tenant" for
eviction or otherwise, the aggrieved tenant is often unwilling to
provide the necessary corroboration in an attempt to avoid
potential conflict or even threatened harm.
Until these issues are rectified by legislative and/or
regulatory action, property owner decisions about whether to take
on a tenant, and the terms and conditions of the tenancies, will be
subject to laws as they are written and enforced in court
decisions. The small landlord, unfortunately, often has little or
no ability to financially survive many typical outcomes. Nothing
will change unless there are concerted efforts to educate landlords
and the landlord bar, as well as to encourage them to begin a
dialogue with lawmakers.
I recently accepted a mentoring position promoted by the
Massachusetts Bar Association with respect to landlord-tenant
matters. I will also be leading a two-part workshop for landlords
with the Metropolitan Boston Housing Partnership this September. In
my role as a mentor, I have been able to help fellow attorneys
advise their clients on eviction matters as well as issues designed
to prevent the need for an eviction (e.g., following all of the
required steps prior to signing a lease with a tenant).
Being a landlord in Massachusetts carries risks,
responsibilities and the availability of capital. Unless a landlord
is willing to dedicate the time, effort and money to understand the
laws and regulations, the landlord is likely to be at a severe
disadvantage if a court action may ensue. In my practice, I
continue to offer affordable fee structures and assistance on
various levels, allowing landlords to obtain the advice and zealous
advocacy they need, while also educating them in an effort to
prevent further financial losses. I cannot stress enough the
importance for a Massachusetts landlord to have trusted
professionals (lawyers, accountants, brokers) to call. The economic
viability of small landlords who want to offer the valuable
commodity of rental housing will be more sustainable when they can
take advantage of the advice of the services that should be
provided by people whose jobs are to know, understand and apply the
law, as well as to utilize it to avoid the serious and avoidable
pitfalls of residential rental property.