In an October, 2017 decision by the Supreme Judicial Court of Massachusetts, in the case of Scott Phillips v. Equity Residential Management, L.L.C., the Court provided clarification as to which violations will trigger treble damages under the Act.
On July 31, 2017, Attorney Ken Krems in the Massachusetts Lawyers Weekly front page article, “Tax foreclosure doesn’t change tenant-at-will status.”
On April 24, 2017, Attorney Ken Krems was featured on the front page of Massachusetts Lawyers Weekly, in its article “Landlord-tenant bar busy tackling ‘legal pot’ issue.” Attorney Krems, a leader in the field of real estate law who represents more than 20 companies managing approximately 15,000 apartments in Massachusetts, was interviewed by the news publication regarding the legal implications facing property managers following Massachusetts’ legalization of marijuana.
Now that the ballot question on recreational marijuana has been approved, the question for landlords is what can they do about this and what rights do they have.
In their Summer 2016 issue, Baystate Apartment Owner published Attorney Krems' article "Domestic Violence: Rights and Responsibilities of Landlords & Victims."
In their June 2016 issue, the Real Estate Bar Association newsletter published Attorney Krems' article "Criminal history screening procedures focus of newly issued HUD guidance."
Article by Ken Krems in Bay State Apartment Owner Publication, 3rd Quarter, 2015
Article by Christina P. O'Neill in Bay State Apartment Owner publication
Article by Kenneth Krems for New England Assisted Housing Management Association publication
It happens every summer. You pick up the paper or turn on the news and learn that another child has been seriously injured or killed as a result of a fall from an upper story apartment window. Another tragedy that could have been prevented. Another potential major lawsuit against a landlord.
In a mill town a small boy falls out a window into a neighboring canal. Only the heroic efforts of office workers on the other side of the canal prevented him from drowning. A small girl falls out an upper story window to the pavement below and killed. Do you worry that this could happen someday at your property?
Generally, if an owner or manager of an apartment building knows that a potentially dangerous situation exists, but does not take reasonable steps to make the premises safe, there can be liability for a future injury. A child falling from a window is such a potentially dangerous event. Because juries know that these types of injuries occur with some frequency, they are delivering large verdicts against landlords who have not taken adequate precautions to insure that these falls will not occur.
Article by Kenneth Krems for New England Assisted Housing Management Association publication
In 1980, as the United States defeated the Soviet Union in hockey at the Lake Placid Olympics, sportscaster Al Michaels exclaimed, "Do you believe in miracles?"
It seems that some landlords do believe in miracles, at least when it comes to fixing defects in tenants' apartments. Some managers apparently think that the defects will, miraculously, cure themselves, or if not, that the tenants will simply forget that the problems ever existed.
There are right ways and wrong ways to respond to tenants' complaints. A case decided in Massachusetts Northeast Housing Court in March 1996 illustrates how landlords should not deal with complaints regarding defects in an apartment.
Article by Kenneth Krems for New England Assisted Housing Management Association publication
With crime occurring all around housing developments, landlords today must be concerned with security issues. Providing safe and secure housing for tenants should be a top priority.
In 1994 the Massachusetts Supreme Judicial Court stated that while residential landlords are not guarantors of the safety of their tenants, they do have a duty to protect tenants from foreseeable risks of harm from intruders. Moreover, landlords should be in compliance with the state sanitary code and building code with respect to security issues. Two cases decided at the trial court level in 1995 deal with these issues. In one, the landlord was held to have no liability; in the other, the landlord was found to be grossly negligent.
The first case was decided by the judge of the Hampden Housing Court. A tenant of a six-unit apartment building in Springfield was abducted form the building's parking lot one evening and assaulted. The tenant sued the landlord, claiming that the amount of lighting in the parking lot was insufficient to deter criminals.
Article by Kenneth Krems for New England Assisted Housing Management Association publication
Picture this scenario: You think you have a simple eviction case for non-payment of rent. After all, the tenant does owe three months rent for a total of $1800.00. You bring your case to court but there is a hitch -- the tenant raises a rent withholding defense and a breach of warranty counterclaim. The result of this "simple" case could be that the tenant remains in the possession of the apartment, you owe the tenant money, and you have to make repairs. Your case has turned into a nightmare.
Tenants do sometimes raise these type of defenses and counterclaims in eviction cases. Your success as a manager in these cases depends upon your understanding of the law, as well as what actions you took or did not take before the case ever made it into a courtroom.
Many states, including Massachusetts, recognize a warranty of habitability. This means that a landlord must keep the apartment free of significant defects, or in the case of Massachusetts, free from violations of the State Sanitary Code. Under Massachusetts General Laws Chapter 239, section 8A, a tenant can have a valid rent withholding defense if: 1) there are significant defects in the apartment; 2) the defects were not caused by the tenant or anyone under the tenant's control; and 3) the landlord or the landlord's employees knew of the defects prior to the time the tenant fell behind in the payment of rent. The landlord's knowledge can be as a result of receiving written notice of the defects from the tenant, being told about the defects, receiving notice from the Board of Health, or any other type of notice.
Article by Kenneth Krems for New England Assisted Housing Management Association publication
Most landlords, once they have police reports or other sufficient evidence, act quickly to rid their communities of residents who are engaging in illegal activity in their apartments or in the common areas. But what about non-residents who are hanging out in the common hallways, courtyards or parking lots of a property and selling drugs, carrying guns, or just harassing residents? These individuals may be total strangers, but often are the adult children of residents who have gotten older and moved out. What obligations does a landlord have to rid its property of these non-residents and what steps can a landlord take?
In a recent case involving the New Bedford Housing Authority, the Massachusetts Supreme Judicial Court shed some light on a landlord's obligations in such instances. Several residents had sued the Housing Authority, claiming that, while there had been some attempts to evict residents who were engaging in illegal activity, not much had been done about non-residents who were coming on the property and dealing drugs. A lower court had dismissed the residents' case prior to trial. The Supreme Judicial Court stated that under Massachusetts General Laws Chapter 186, section 14, the "quiet enjoyment" statute, residents have a right to be protected against a serious interference with their tenancy and the character and value of the leased premises. If a landlord takes little or no action to remove individuals who are engaging in illegal activities in the common areas, and the result is that the residents are unable to use those areas as the landlord had originally promised, then the landlord is probably breaching the covenant of quiet enjoyment.
Article by Kenneth Krems for New England Assisted Housing Management Association
Recently landlords have had to deal more often with tenants who use drugs in, and sell drugs out of, their apartments. Managers want to evict these tenants as quickly and inexpensively as possible, and do not want to commence a court action unless there is a strong likelihood that they will be successful. There are several types of actions which landlords can institute, and various evidentiary tips which can be utilized to improve the chances of winning.
Most often landlords will serve the tenant with a thirty-day notice to quit for cause or nuisance. The notice is based upon language in subsidized leases which prohibits the tenant from engaging in or permitting others to engage in unlawful activities in the unit or in common areas, including the possession, use or sale of illegal drugs. After the thirty days expire, the landlord commences an eviction action in court. The problem with following this procedure is that it takes a minimum of two to four months from start to finish.