Minutes: Chief Justice Tim Sullivan, Attorney Ben Adeyinka Speak in Marlborough

Opening Remarks and Updates

Since the last time the Chief Justice spoke at a landlord event, much had changed in the Housing Court.

Housing Court expansion was authorized and funded by the fiscal 2017 budget. (Background: Housing Court was created in 1972 to address what was deemed substandard housing in Boston, and since then has expanded to cover the entire state. Evictions and small claims related to rental properties can be filed in Housing Court for lower fees and better access to mediation.)

The primary target of the 2017 expansion was Norfolk County, including Cohasset, which is detached from the core part of the county. The new court in Brockton will use existing buildings, and so will others, so that new construction can be avoided.

On July 1, 2017, the court started accepting cases from all municipalities.

Prior to expansion, ten judges served the existing Housing Court. Five new ones had to be nominated by the Governor to the bring the total to 15. Each of these must be approved by the Governor’s Council. This was expected to be done in May. Altogether, there will be 20 locations where these judges sit, roughly parallel to the 20 locations where Massachusetts landlords have tended to meet for education and networking.

The Housing Court will bring on 17 employees. Four of the divisions are getting new staff: Suffolk, Southern, and Middlesex especially.

Changes to sittings have been made to increase geographic reach. On April 6, the Eastern Division of the Housing Court started sitting in Cambridge District Court located in Medford. The Lawrence session started sitting in Woburn.

The MetroWest region is now part of the Central Division sitting in Marlborough. The court are always looking for space to bring hearing locations closer to end users, especially if expansion to Framingham and Natick is possible. The Marlborough session used to be just a Friday afternoon, it will now be an all-day session on Tuesday to cover Framingham.

The Housing Court will need a new budget for fiscal year 2019 effective July 1; at time of writing, this was expected to be approved.
The budget takes place in three phases yearly:

1. The Governor files House 1 in January;
2. The House Ways and Means Committee comes up with their own budget recommendation, which was announced this spring. In this, the Housing Court budget was expanded by an additional $1.5 million, to $2.5 million total.
3. Judge Sullivan needed $2.6 million total to fully fund expansion; Housing Court is a small fraction of the Commonwealth’s judicial expenditure, just 2% of the entire trial court of $600 million overall.

Once budget reconciliation and the Governor’s signature happen, the budget will be set for another year. It’s unknown whether the Housing Court budget request will be granted in its entirety.

Questions and Answers

Owners asked questions of the Chief Justice.

An owner asked how to provide feedback on housing specialists or unfair treatment. They were advised to contact the administrative office at 617-788-6500.

An owner asked why we should file in Housing Court. The Chief Justice listed the advantages of Housing Court over District Court, without saying anything bad about District Court staff:

1. Housing Court mediation is a big difference. Housing Court specialists are very familiar with landlord-tenant law. They can craft agreements that are fair to both parties and binding. If you can’t find a mediated solution, you can still see the judge right away.
2. The “lawyer for the day” program grants limited representation to help with day-of issues. This program must be fair, should take both landlords and tenants. The Chief Justice asked to be notified if any owner was turned down.
3. The Tenancy Preservation Program finds resources for those suffering from disability or age-related impairment to keep both renter and landlord successfully in business together.

An owner asked about Chapter 239 Section 8A, rent withholding. The Chief Justice said this applies “where the tenancy has been terminated without fault of the tenant or occupant.” The section of the law requires the following:

1. If the property is substandard, the judge has to determine the rent discount owed to the tenant.
2. If the rent was not paid, the judge has to determine whether the landlord knew that the property was substandard.

The remedy of this section is available for every tenancy with no cause or with non-payment of rent. If there is “fault,” meaning a lease violation, then it does not trigger this section of the law.

An owner asked about cases of repeated non-payment of rent. With a tenancy-at-will, a renter has one chance to cure every 12 months. With a lease, the renter can cure every single month, and there is no limit to the number of cures.

An owner asked about long bureaucratic delays in court. Judge Sullivan commented that the Northeast Division had experienced 23-day delays in entering judgments. He said this was an isolated issue that is now fixed.

An owner asked about partial payments. The Chief Justice said, when “rent day” comes and goes, terminate the tenancy. Don’t string yourself along. If they cure, you get the money. If they don’t cure, you get possession as fast as possible, which is really as much as you can hope for.

The Chief Justice remarked that half the courts now ban electronic devices. He suggested owners print their text messages in advance.

When asked about the biggest risk to owners, the Chief Justice commented that ESA’s may be the biggest risk for owners. Saying “no pets” is potentially discriminatory.

An owner asked if they want to renovate, can they list that as a “cause” for terminating the tenancy? The Chief Justice said “renovation” would not be listed as a cause. If it’s a lease, you cannot just get out of it to renovate. You would have to prove the tenant had violated the agreement. If it’s a tenancy-at-will, you would have the right to terminate without cause. In this case, although renovation might be your personal reason for terminating, you would not list it (you would not list any cause at all).

The Chief Justice concluded by saying that “being a landlord in Mass is not for the faint of heart.” He shared the Housing Court Administrative Office phone number: 617-788-6500.

Over the last year, the Chief Justice and Attorney Adeyinka have volunteered their time to present and get feedback from owners at least half a dozen events.