First Justice Jeffrey Winik of the Eastern Division of the Housing Court spoke at MassLandlords Cambridge on Tuesday June 19, 2018. These notes were taken at the time and were not published previously but are still highly relevant. Any errors or omissions are MassLandlords’ own.
Judge Winik was accompanied by his court room team: Assistant Clerk Andrea Gomes, Chief Housing Specialist Michael Neville, First Assistant Clerk Magistrate JoeAnn Smith, Assistant Clerk Thomas Trilla, and Assistant Chief Housing Specialist Alex Valderrama. Attorney Jordana Greenman moderated.
The Judge’s remarks covered a wide variety of landlord-tenant topics. He started by recognizing the event’s moderator.
“Attorney Greenman is a very talented, effective, and ethical lawyer,” he said.
Judge Winik then set out his basic presentation framework. He said, “Ownership and management of rental property is an honorable profession. We need housing and you’re entitled to be paid for the service you’re providing. That profession comes with responsibilities.”
Consistent with MassLandlords’ general advice that communication skills are important, the Judge said that court should be a last resort. He said you should also know that you will get a fair hearing, but that the law is very complex and nuanced.
Quoting the old adage, “A camel is a horse made by committee,” Judge Winik reminded us that a lot of the statutes we have to deal with are products of people who could not reach agreement. So the lawmakers fudged the wording. Don’t believe that you will understand every part of every law.
The Judge’s presentation was preceded by the MassLandlords repertoire presentation on eviction. Judge Winik referenced this at the start, rightly saying that the eviction timeline shown could be a three day-per week college course. Ten minutes is not enough to explain it all, and not enough background to attempt an eviction without counsel.
Housing Court is a set of courts dedicated to landlord-tenant law. The court was recently expanded to cover the whole state, so Judge Winik recapped the history. Housing Court started in Boston and Western Mass, and was later expanded to Worcester, the Northeast, and the Southeast.
He made a point of saying what is true, that District Court judges are very good, very smart people. He also said they don’t have time or support staff to handle evictions the way the Housing Court does. Housing Court focuses specifically on landlord-tenant law, in all its complexity.
The Housing Court staff had pushed for expansion for years without much success, until one day, the House Speaker said, “How about now?” The legislature signed expansion July 1, 2017 and the court was expected to start sitting that day. He expressed his view that we’ve done a remarkable job as a Commonwealth and are now hearing Housing Court cases all over Massachusetts.
At the time of presentation, some locations were still six to eight weeks away from opening: MetroSouth, Taunton and Quincy. All cities not covered by the original Housing Court have since been picked up.
Judge Winik said, “We made a commitment to provide the same service. It’s going to take time.” Some locations do not accept paper filings or experience other snags not encountered at the previous Housing Court locations.
Judge Winik reminded us that a lawyer who is experienced in housing law is worth their weight in gold. The Judge then started to detail the common problems he has seen.
Defective Notices to Quit
You need to give 30 days or a full rental period for a notice to quit with an at-will tenant. This notice period must end on a rent day. For instance, notice given on January 31 would be defective if set for March 1, because February is a short month. That notice would have to be April 1, or else served earlier in January.
Another problem with notices is not naming every renter. For instance, you can’t put two names on a lease and have only one signature on that document. Are both renters? This is so untidy as to be defective.
A final problem with notices is getting the address wrong. The notice is a technical document. You can’t mess up the street name, or use a nickname, or put the wrong unit number on a notice.
A common mistake is citing a lease violation on a lease pulled from a national service with clauses that are illegal in Massachusetts. Chapter 186 Section 15b gives you a whole list of items that can’t be in a lease here.
You have at least a 50% chance of making an illegal lease if you DIY, he warned. (Readers take note: MassLandlords rental forms are reviewed regularly and believed to be fully compliant on download.)
Pro Se Eviction with Subsidies
The judge strongly advised landlords understand the difference between federal subsidies and private rentals. The Housing Choice Voucher Program (Section 8), Massachusetts Rental Voucher Program (MRVP) and others are tenancies under statute. These rules are different. Notices to quit especially may have different requirements.
Judge Winik on Security Deposits
Judge Winik was blunt about Chapter 239 Section 8A, the security deposit law. He said, it’s the “Most poorly drafted statute in the Commonwealth. Vague and internally inconsistent. I have been looking at it since 1972, 1973. Ask yourself, ‘Do you need this?’”
Judge Winik emphasized the importance of complying with the security deposit statute from beginning to end. Notifications, pre-inspections, paying interest, complying with statement requirements, and returning only with the correct deductions all must be perfect.
He reminded the room that this statute is a strict liability statute. Even if you try to do it right, you’re liable for doing it wrong. Good intentions don’t cut it.
Judge Winik said he sees many unprofessional owners with no clear business records. Your records need to be clear and contemporaneous.
When he asks, “How much rent is owed?” you must give an exact number as of an exact date. If you say, “Around $1,500” or “since a couple of months ago,” you will have given a bad answer. In court you must be precise.
The Judge said if you are a corporation, you must get a lawyer. He cited the Varney case: because a corporation is an entity created by statute, only a lawyer can represent it.
Judge Winik also cited Hatcher: before this case, a manager could appear on their own. This is no longer allowed even if “John Property Manager agent for Jane Lessor” is how you sign your lease.
[With Hatcher, there’s an unanswered question, according to the Judge: if the property manager actually collects the rent and has all the interaction with the renter, can that manager appear without a lawyer as the de facto lessor? The term “Landlord” is defined only in state sanitary code. The SJC didn’t address this scenario, in his view.]*
To save yourself money and time, the Judge advised you not allow your managers to represent you in court without an attorney. He said, “Even if I agree with you, the appellate court could address the jurisdiction issue whether it was asserted or not.” In other words, Judge Winik could decide in your favor on the merits, the renter could appeal, and the appellate court could find against you on the technicality of not having a lawyer. Hire a lawyer.
Judge Winik on Insufficient Service
A common problem is a notice to quit served by the landlord. A sheriff’s or a constable’s return of service is proof of delivery. Not so for a landlord. You’re in such a better position with a constable or a sheriff. Judge Winik joked, “‘The dog ate my notice.’ I’ve heard it!” He advised DIY landlords ask the tenant to sign and date a copy of the notice and have a witness.
Judge Winik added, “I’m surprised you don’t service notice to quit both certified and first class.”
The best advice is to forget witness, signatures, and two types of mail and just hire a process server.
Note that a tenant doesn’t have to prove the reason they withheld rent (e.g., loss of job). He said 90% of the cases where he has seen rent withholding with Section 8, it’s almost never intentionally withholding for conditions.
The judge recommended you bring in an expert to testify on the conditions or the repairs you made. He said he does have ability to order escrow. He also said for a bench trial, he was rarely going to issue an escrow order. He said a jury trial was a different question.
His overall advice was to take tenant complaints seriously.
Boston requires inspectional services department (ISD) inspections. It’s the least followed ordinance in the city, he said. If you’ve done it, it tells me you’re a careful landlord. It’s protection for you. It says, “As of this date, the apartment complied with the requirements.”
Speaking of careless landlords, Chapter 239 Section 2A gives an affirmative defense to renters. A landlord can’t take adverse action against a tenant because the tenant was 1.) organizing, or 2.) complaining to a municipality, even if the complaint is without merit. The judge can allow eviction even with a retaliation claim based on the landlord’s earnestness and the details of the case.
Judge Winik Event Conclusion
Overall, the Judge and his team were friendly, funny, and enormously knowledgeable. They covered the Housing Court expansion, court process, and landlord-tenant law mistakes. The Judge and team received 100% positive feedback on our feedback cards. We hope this summary will be useful to you in court. May you never need it.
* This section will be the subject of an erratum to be published May 2019.