Housing Court

In Massachusetts, “housing court” refers to the special set of courts that deal exclusively with housing related matters. This is different from land court, which deals with foreclosure, tax liens, and title. It’s also different from district court, which deals with all matters, including crimes and misdemeanors. In housing court, you can file eviction cases and small claims./p>

Since Housing Court expansion in July 2017, there have been five housing court divisions covering all of Massachusetts:

  • Western
  • Central
  • Northeast
  • Eastern
  • Southeast

Eviction and small claims cases may be filed in Housing Court or District Court.

Tenants have absolute right to transfer cases to a housing court.

  • Do tenants have absolute right to transfer cases to a district court? We don’t know. They have nothing to gain, and we’ve not yet heard of it.

Housing Court tends to offer tenants two big advantages:

  1. Legal services go to housing court looking for tenants who want their pro-bono services.
  2. The laws in Massachusetts are tenant-friendly, and housing courts know the laws best.

If you are a scrupulous landlord, odds are good that you will navigate housing court just fine. In fact, many housing court judges and their teams visit MassLandlords groups to share tips and tricks.

Housing Courts have a primary seat and a circuit. At their primary seat, they tend to hear cases on a Thursday. For instance, the primary seat of the Central Division is Worcester, so Worcester court day is a Thursday. But the Central Division also travels to Marlborough (among other places) and hearing day in Marlborough is Friday. Always file your case at the primary seat of your court, but pay attention to where your case will be heard and on which weekday.

John Adams Courthouse, Boston

John Adams Courthouse, Boston

Mediation

Housing Court also offers a service called mediation. The morning of your case, when you and your tenant appear in court, you have the option to sit with a professional mediator to discuss your situation.

You should always choose to do mediation. Mediation has a bad reputation in some circles, but here’s the truth:

Mediation is binding.

If a tenant agrees to do something in mediation, it gets recorded by the mediator. The fact of the agreement appears in the official records. Suppose they said they would move out by the 15th. Or maybe they agreed to pay an extra $100/mo to pay back rent. Such agreements are binding on them. You can get what you want without having to appear before the judge.

If you go through mediation and you fail to come to an agreement, you go on to see the judge. And now that you’ve just been talking to the tenant, you know exactly what they are going to tell the judge. You just heard their whole case. You can now craft rebuttals in your head, on paper, or with your attorney before the judge sees you.

Suppose you do mediation, you skip the judge, and the tenant doesn’t do what they said they would. In that case, it’s as if they broke a promise to the court. You can take the tenant back to court, the judge will see you without further mediation, and things will now be very much slanted in your favor.

So always do mediation. You have lots to gain and nothing to lose.

Records

Court records are increasingly searchable online, going back many years. This means housing court and district court.

Be careful when you search. Landlords might have filed for eviction in housing court or district court for any of the tenant’s previous addresses. You also need to try variations on their name to avoid those few records that might have typographical errors.

Search court records online

It used to be that court records were only available at the terminals in the court house. They are still available there. So if you prefer to use the court computers, you can do so at the administrative offices. Usually they have a public-facing computer where you would file papers.

In the Court Room

Do not expect equal treatment.
Do not expect fairness.
Your job is to make no errors.
Your goal is to regain possession.
You will almost certainly lose money.
– H. John Fisher, HAP Housing, landlording expert

The type of case you have depends on how you filed it. Eviction (aka “summary process”) is about breach of agreement. This means unpaid rent or another specific violation. Note that eviction cases do not allow for damages. If you want the tenant to pay you back for damage above and beyond the security deposit, you must file a separate small claims case after eviction.

You should prepare yourself for court by collecting all of your papers and evidence. Courts are public, so if you have time, go to court weeks before your trial to watch others go through the ringers. Just ask the local court when they are hearing cases and what the procedure is for visitors.

If you will be in court for the first time, ask your local landlord network for an attorney. Seriously, pay the money. If you are a corporation or LLC, you must have an attorney. If you are a sole proprietor, you should pay for an attorney unless you are confident in your knowledge of the law, and your adherence to all of it.

In the court room, do not lose your cool, and try not to make procedural mistakes. Judges rarely cut landlords any slack. (On the other hand, judges may cut tenants slack if they perceive the tenant is being steamrolled.) Remember, you initiated the action, and the judge needs to ensure fairness for the uninformed tenant.

Be honest with yourself; is the real root of your problem the fact that you didn’t do a good job of tenant screening.
– H. John Fisher, HAP Housing, landlording expert

Our Eviction Study showed that, if one party owes money, 99.8% of the time it will be the landlord who gets the judgment in their favor. But that doesn’t matter. You will probably not be able to collect the judgment against the tenant. All you can hope for is to get your apartment back and generating income again.

If you want to file for damages above and beyond the security deposit, you can file a separate action in small claims court after you have your apartment back. Whatever judgments you get are good for 20 years. if the tenant starts making real money, or wants to buy a house, this judgment may become collectable.

Just remember that regaining possession of your property is your goal. Keep that in clear focus and set all quibbles and monetary damages aside until you get your apartment back.

Central Housing Court Covers Ring, Blacklists, Prepayment and More in Worcester June 2018

On June 13, 2018, officials from the Central Division of the Housing Court, including but not limited to First Justice Diana Horan, Judge Donna Salvidio, and Clerk Magistrate Nickolas Moudios, presented at the Worcester Technical High School. They covered a variety of issues they see owners and managers making. The notes below are intended to be a summary for experienced owners of the new points addressed, rather than a comprehensive review for beginner owners. Any errors are our own.

Is it Lawful to use the Ring Doorbell System?

A member wanted to know if they could use the Ring doorbell system with its audio and video in their  common areas (the stars, hallways, basement , decks, porches and attic) and/or around the perimeter.

Rather than answer specifically, the court staff answered generically: You can’t use any system that records audio. It’s a criminal offense in MA if there’s no consent.

Our take on Ring is that you can use it as a doorbell, without any recording, but you can’t use any of the recording features, since they don’t separate out video vs audio.

Can I Blacklist a Tenant by Publishing My Eviction Story?

A member wanted to know if they could share their list of bad tenants in print or online.

Court staff said that you can’t post tenant recommendations or non-recommendations. Anything you say about a renter must be “crystal clear truth,” they said. They said if you want others to know that you had a serious problem with a renter, you should file your case in court and let their name appear in MassCourts.org, and let that public record speak for itself.

You might try to skirt this advice and advertise the public record at MassCourts.org in connection with a renter’s name. “Hey, look at MassCourts.org before you rent to John Doe.” The court staff said that could expose you to claims.

The court staff did not address this, but we want to cite MGL Chapter 93 Section 49, which states in a roundabout way that landlords may be violating the state Fair Debt Collection Practices Act by communicating information about non-payment specifically to anyone other than the courts or the tenant.

Can I Transfer Security Deposits Between Outgoing and Incoming Roommates?

The scenario presented was as follows: Tammy Tenant leaves a roommate situation. Rachel Roommate wants to take Tammy’s place. Can you switch the numbers on the account from Tammy to Rachel, and have Rachel pay Tammy?

The answer from the court officials was pointed: No, you must return the security deposit. You cannot in any way transfer credit to a new renter.

When asked what happens when Tammy cannot be contacted and has left no forwarding address, the court staff advised to leave the money in the bank account for one year.

When asked what happens if the renter is deceased but you have their direct deposit information, the court staff advised against knowingly doing that. Probate or their family should instead be notified that you are holding the deposit and wish to receive instructions.

What’s the Craziest thing Anyone Has Ever Done in Housing Court?

The judges and the clerk magistrate agreed: the craziest thing they’ve seen is anyone who refuses mediation, whether a landlord or a tenant. That’s your last chance to obtain a mutually agreeable and yet legally binding judgment. It’s a chance to avoid being called out for any legal noncompliance. And it’s not a material delay. If you can’t reach a mediated agreement, you can go through the door to see the judge immediately after.

Can I Prepay Rent?

An attendee wanted to know how they were supposed to approve a rental application for a family with substantial assets but no income. The law specifically forbids collecting rent in advance, doesn’t it?

The court officials said the law prohibits requiring rent paid in advance. If there’s a new rental agreement, freely entered into, and the tenant is volunteering to prepay, then that may be permitted. “There cannot be even a whiff of a hint of being required or desired by the landlord,” otherwise it would be unlawful.

Another attendee asked if someone prepays for a year, does that create a rental period of a year? The answer was no, the notice requirement is not changed by prepayment.

The court staff also noted that Chapter 186 Section 15B, which regulates prepayments, has one ultimate paragraph that says this restriction shall not apply to rentals of 180 days or less or vacation rentals.

Other Notes

Many judges now feel that the Hatcher case applies to the notice-to-quit as well as the summons and complaint. This means if you are an LLC, you need to have an attorney draft all notices.

The appeals court in Massachusetts have clearly established that homelessness beats economic loss every time. You must show due process to a renter. Don’t expect lost rent or a tied-up unit to sway a judge.

The maximum court-charged late fee is 12% of rent. This is not interest, this is a one-time fee.

Further Reading

Advertisement

Advertisement

Advertisement

Richard Dube handyman

Advertisement

pro-tech pest control worcester and framingham