Fourteen Days Notice to Quit For Nonpayment of Rent in Massachusetts

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By Robert Nislick

You are a Massachusetts landlord. Your tenant is not paying rent. You want to evict him. What can you do to get the eviction process started?

Most landlords know that before you can evict a tenant for nonpayment of rent, the landlord must serve, and the tenant must receive, a fourteen-day notice to quit for nonpayment of rent.

If all you are looking for is a form, then here is a link to a form that is available on the Massachusetts Court System web site:

http://www.mass.gov/courts/docs/lawlib/docs/notice-quit-14.pdf

Here is a link to another form that is available on the Plymouth County Sheriff’s Department web site:

http://www.pcsdma.org/Forms/14%20Day%20Notice%20to%20Quit.pdf

Here is a link to another form that is available on the Suffolk County Sheriff’s Department web site:

http://www.suffolksheriffma.com/14_Day_Notice_To_Quit.pdf

Even though these forms are available to use for free, there is no substitute for having an experienced Massachusetts landlord-tenant lawyer handle the eviction from start to finish. This includes drafting the notice to quit. Some landlords think they can do an eviction on their own, or maybe do the notice to quit themselves, and then hire an attorney to show up at court on the day of trial. I would not recommend that approach.

Even if one of these forms might work, it might be completely inappropriate to use one of them. Although I am providing links to these forms, I am certainly not advising that everyone or anyone use them. Something slightly different or completely different might be necessary based on the specific facts. It may be that your case is a simple nonpayment of rent case, and the service of a 14-day notice to quit would be best. It might not be, however. It is common for landlords to have misconceptions about how to terminate a tenancy and how best to move the ball down the field.

An experienced landlord-tenant attorney may see your case differently. There are various situations in which I may advise proceeding with a 7-day notice to quit, or a 30-day notice to quit, or a 90-day notice to quit, or an immediate termination, or a notice that provides a holdover tenant less than seven days to vacate.

The circumstances might be such that serving any notice to quit would be less than prudent, and an alternative course of action would be better. Additionally, issues of timing in the eviction process are important, and are too numerous to discuss in this article.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Landlord and Tenant Issues Related to The Regulation and Taxation of Marijuana Act

By Robert Nislick

On Election Day 2016, Massachusetts voters approved Question 4, and passed The Regulation and Taxation of Marijuana Act. One purpose of the act is to “make marijuana legal for adults 21 years of age or older”. See Act, § 1. The act will take effect on December 15, 2016. See Act, § 12.

The legalization of marijuana will affect Massachusetts landlords and tenants. The portion of the Act dealing with the regulation of the use of marijuana not medically prescribed, states in pertinent part:

“This chapter shall not be construed to:

(1) prevent a person from prohibiting or otherwise regulating the consumption, display, production, processing, manufacture or sale of marijuana and marijuana accessories on or in property the person owns, occupies or manages, except that a lease agreement shall not prohibit a tenant from consuming marijuana by means other than smoking on or in property in which the tenant resides unless failing to do so would cause the landlord to violate a federal law or regulation;

(2) prevent the commonwealth, a subdivision thereof or local government agency from prohibiting or otherwise regulating the possession or consumption of marijuana or marijuana accessories within a building owned, leased or occupied by the commonwealth, a political subdivision of the commonwealth or an agency of the commonwealth or a political subdivision of the commonwealth; . . . .”

Act § 5, G. L. c. 94G, § 2 (d).

Essentially, a landlord can prohibit a tenant from smoking marijuana in the leased premises. The landlord may want to have the tenant sign a “NO-SMOKING ADDENDUM” to the lease, and this will prohibit the tenant and guests from smoking anywhere on the landlord’s property, inside and out. If the tenant violates the provisions of such a no-smoking addendum, the lease may permit the landlord bring a cause eviction after serving a 7-Day Notice to Quit. For additional insight, please read my companion article, “Smoking and Evictions in Massachusetts”.

However, a landlord cannot prohibit a tenant from consuming marijuana by means other than smoking, unless failing to do so would cause the landlord to violate a federal law or regulation. One interesting feature of the new law, which many private landlords will consider unfair, is that it provides the commonwealth and local governments with the ability to prohibit tenants from possessing or consuming marijuana, outright and in all forms, in a building owned by the government, whereas the private landlord can essentially only prohibit smoking.

Additionally, the portion of the Act dealing with personal use of marijuana states in pertinent part:

“[A] person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the commonwealth in any manner, or denied any right or privilege and shall not be subject to seizure or forfeiture of assets for: . . . (2) within the person’s primary residence, possessing up to 10 ounces of marijuana and any marijuana produced by marijuana plants cultivated on the premises and possessing, cultivating or processing not more than 6 marijuana plants for personal use so long as not more than 12 plants are cultivated on the premises at once;”.

Act § 5, G. L. c. 94G, § 7 (a).

Essentially, a tenant can cultivate twelve marijuana plants in his primary residence. This requires water, electricity, and heat. It is easy to envision how a tenant may be growing his dime bag on the landlord’s dime.

Under the State Sanitary Code, the landlord is obligated to pay for electricity and gas in each dwelling unit unless it is separately metered and there is a written document that provides for payment by the tenant. See 105 Code Mass. Regs. § 410.354. “[A] writing is required when the obligation to provide heat and hot water is transferred to the tenant.” Young v. Patakonis, 24 Mass. App. Ct. 907, 908-909 (1987). Concerning the cost of water, G. L. c. 186, § 22, allows a landlord, under certain circumstances, to bill the tenant for water for his water usage. However, the landlord must satisfy many onerous requirements before qualifying to bill the tenant for his water usage.

With approximately 11,000 summary process cases having been filed in the Boston Housing Court and Worcester Housing Court in 2015, with many thousands more filed in the other divisions of the housing court, and in the district court, it is safe to assume that the new marijuana law will become the subject of litigation between landlords and tenants.

Landlords, property managers, and tenants should seek legal counsel to help them navigate through the haze.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Stays of Execution in Massachusetts Landlord and Tenant Cases

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

You tried your case and the court found that you are entitled to a judgment and execution for possession, or perhaps you entered into a Summary Process Agreement for Judgment with your tenants, which requires them to vacate by a certain date.

A couple of weeks pass and the tenants still have not moved out. They have no intention of leaving. In fact, the tenants want to stay even longer. The tenants file a Motion to Stay Execution. Essentially, the tenants are asking the court to give them even more time to move.

Do the tenants have any grounds for seeking more time, even though they have already lost their case?

If the eviction was a no-fault eviction, rather than an eviction for nonpayment of rent, then the court can grant the tenant a six-month stay, or if the tenant is handicapped or at least 60 years old, then the court can grant the tenant a twelve-month stay. See G. L. c. 239, § 9.

The tenant must demonstrate that he, “cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted”. See G. L. c. 239, § 10.

How can the landlord oppose the tenant’s efforts?

Let me first digress to say that, in my opinion, a landlord should always hire an attorney to handle the eviction from start to finish. I have heard way too many stories from landlords who thought they could save a few bucks by doing it themselves, only to find that they have made mistakes that cost them time and money. The experienced lawyer can anticipate obstacles that may arise, and also avoid traps for the unwary.

Primarily, the landlord will want to point out that if the eviction was brought for nonpayment of rent, the tenant is not entitled to a stay, as a matter of law. If the eviction was a no-fault eviction, however, the landlord will need to counter the tenant’s arguments that he meets the criteria for a stay.

In any event, if the court grants a stay, G. L. c. 239, § 11, requires essentially that a stay shall be conditioned upon the tenant’s depositing into court for occupation of the premises during the stay the amount he was paying for rent previously, any additional amount the court deems reasonable, and all unpaid rent prior to the stay. The statute also provides that the court to shall pay to the landlord the amounts deposited into court.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Trustees’ Responsibilities and Unit Owners’ Right of Access to Condominium Books and Records in Massachusetts

By Robert Nislick

When a dispute starts to arise between and a unit owner and a board of condominium trustees, the unit owner may ask to review the financial records of the condominium. The unit owner may suspect that the trustees are expending money wastefully or improperly.

What records must the condominium trustees maintain? What rights does the unit owner have to access the books and records of the condominium? How can the condominium trust satisfy its obligations to the unit owner?

Pursuant to G. L. c. 183A, § 10 (c), the organization of unit owners or the condominium’s managing agent shall keep a complete copy of: (1) the master deed, (2) the by-laws, (3) the minute book, to the extent such minutes are kept, and (4) financial records, including and relating to: (i) all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements, (ii) the replacement reserve fund or any other funds, (iii) audits, reviews, accounting statements, and financial reports relating to the condominium’s finances, (iv) contracts for work to be performed for or services to be provided, and (v) all current insurance policies, or policies which name the organization as insured or obligee. The statute requires that these records be kept in an up-to-date manner within the commonwealth.

Additionally, any unit owner and first mortgagee has a right of reasonable inspection of these records during regular business hours. Access to said records includes the right to photocopy said records at the expense of the person or entity making the request.

If a unit owner requests to inspect the books and records of the condominium, the trustees or the property manager should be willing to set up an appointment for the unit owner to view the records, or photocopy the records and provide them to the unit owner. The association risks getting sued by the unit owner if the trustees fail or refuse to provide reasonable access to these records. Even if it seems like an inconvenience, the condominium association should make every effort to comply with the unit owner’s request in a timely and efficient manner.

About the author: Robert Nislick is a Massachusetts condominium lawyer and former law clerk at the Land Court.   He represents condominium trustees and unit owners. For more information, contact him at (508) 405-1238, or by e-mail.

But If You Do – Things to Remember When Taking a Security Deposit in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. A new tenant is about to lease your house or apartment from you. You would like to take a security deposit from this person.

Allow me to talk you out of it. Read my companion article, “Don’t Do It – The Case Against Taking a Security Deposit in Massachusetts”.

Let’s say you still want to take a security deposit. The landlord should familiarize himself or herself with the statute, G. L. c. 186, § 15B, and the Attorney General’s Regulations, 940 Code Mass. Regs. § 3.17 (4).

If you read the statute and regulations and have a hard time understanding them, then you may be better off deciding not to take a security deposit. You should consider seeking the advice of counsel, in any event, especially if you are an inexperienced landlord. There are so many ways you can lose money when renting property. This article highlights certain things the landlord should or should not do, rather than emphasizing the penalties for noncompliance. A good lawyer can help you to understand the risks and take steps to reduce your exposure to them.

The amount of the security deposit cannot exceed the first month’s rent. See G. L. c. 186, § 15B (1) (b) (3).

The landlord must provide a receipt to the tenant at the time of receiving it. See G. L. c. 186, § 15B (2) (b). The receipt must indicate, “the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.” See id.

Additionally, the landlord must provide a statement of present condition to the tenant, upon receipt of the security deposit, or within ten days after commencement of the tenancy, whichever is later. See G. L. c. 186, § 15B (2) (c). The security deposit law specifies that the statement must contain a comprehensive listing of any damage then existing in the premises. The landlord or his agent must sign the statement. The statement of condition must also provide a certain notice to the tenant, that the tenant must either sign in agreement that the list is correct and complete, or attach a separate signed list of damage that the tenant believes exists in the premises. See id.

Additionally, the landlord must place the security deposit in a separate interest-bearing account in a bank located within Massachusetts. See G. L. c. 186, § 15B (3) (a). The account must place the deposit beyond the claims of the landlord’s creditors. See id. The account must also have the ability to be transferred to a subsequent owner of the property. See id.

The landlord must also give the tenant, within thirty days after receiving the deposit, a receipt that indicates, “the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit.” See id.

Additionally, the landlord must maintain a record of all security deposits received. See G. L. c. 186, § 15 (2) (d). The landlord must make the record available for inspection upon request of a tenant or prospective tenant. The record applies not just to the specific unit that the tenant is renting. The statute actually allows the tenant to inspect the record for each dwelling unit or premises for which the landlord has accepted a security deposit.

Let’s say that the landlord takes a security deposit from a tenant who has signed a multi-year lease. At the end of each year of a tenancy, the landlord shall pay to the tenant the interest that has been received from the bank where the security deposit has been held. See G. L. c. 186, § 15B (3) (b). Also, at the end of each year of tenancy, the landlord shall give the tenant a statement that indicates “the name and address of the bank in which the security deposit has been placed, the amount of the deposit, the account number, and the amount of interest payable by such lessor to the tenant.” See id. The landlord also shall notify the tenant that he or she may deduct the interest from the tenant’s next rental payment.

What happens when the tenancy ends? Within thirty days, the landlord must return the security deposit, or the balance thereof, to the tenant. The security deposit law specifies three types of deductions that the landlord may make. In a nutshell, deductions are permitted for unpaid rent or water charges; an unpaid increase in real estate taxes which the tenant is obligated to pay pursuant to a tax escalation clause; and a reasonable amount necessary to repair any damage, reasonable wear and tear excluded. See G. L. c. 186, § 15B (4).

Note that if the landlord wishes to deduct for damage, he must provide to the tenant within such thirty days, “an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.” See G. L. c. 186, § 15B (4) (iii).

The statute also details what must happen when a landlord who is holding a security deposit transfers the property. See G. L. c. 186, § 15B (5).

The statute also details that the landlord shall forfeit his right to retain the security deposit if he fails to deposit the funds as required; fails to furnish to the tenant an itemized list of damages within thirty days after the termination of the occupancy; uses in a lease any provision which conflicts with the security deposit law, or seeks to obtain a waiver from it; fails to transfer the security deposit to a new owner; or fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy. See G. L. c. 186, § 15B (6).

About the author: Robert Nislick is a Massachusetts real estate lawyer who handles residential and commercial landlord-tenant matters. For more information, call him at (508) 405-1238, or e-mail him at rob@nislick.com.

Don’t Do It – The Case Against Taking a Security Deposit in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. A new tenant is about to lease your house or apartment from you. You would like to take a security deposit from this person.

In the event that the tenant damages the property or fails to pay rent, the idea of having a security deposit available to cover these costs may seem like a good idea. Most landlords probably don’t appreciate the irony that taking a security deposit, in reality, subjects them to a great deal of risk.

If you knew that you could make an honest mistake and still end up having to pay the tenant three times the security deposit, five percent interest, court costs, and the tenant’s attorney’s fees, would you still take one?

Let’s say you took a $2,000.00 security deposit. For whatever reason, you failed to place these funds in a separate bank account. Alternatively, you failed to return the security deposit to the tenant within thirty days after the end of the tenancy.

Under these scenarios, the security deposit law states that, “the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.” See G. L. c. 186, § 15B (7).

The landlord could easily have to pay the tenant more than $7,000.00. Additionally, once a judgment enters, it grows at 12% per year.

Let’s say the tenant sues the landlord to recover her security deposit. Suppose the tenant has damaged the premises. The statute sets forth five separate situations in which the landlord would be barred from filing a counterclaim for damage to the premises. See G. L. c. 186, § 15B (6). The landlord, however, would not be entirely without a remedy. He would have to file a separate civil suit against the tenant to recover for property damage. Nevertheless, the statute forces the landlord to take a more convoluted procedural route than a defendant, in most other kinds of cases, normally has to take.

Suppose the tenant files a small claim against the landlord to recover a security deposit and wins. The landlord wishes to appeal. Under G. L. c. 218, § 23, the landlord would have to provide a bond in an amount roughly equal to the amount of the judgment that entered against him, in order to appeal and have a new trial.

Let’s back up for a moment. Imagine that a tenant who just moved out has wrecked the place. The landlord wants to deduct from the security deposit to repair damage caused by the tenant beyond reasonable wear and tear. Even if the landlord follows the statute to the letter in making the deduction, the tenant may still disagree and choose to file suit. A landlord could easily find himself forced to expend time and resources defending against what appears to be a frivolous or meritless lawsuit.

Under all the circumstances, why would a landlord still want to take a security deposit? It is true that not every landlord gets burned. But if the decision to take a security deposit carries with it a substantial risk of suffering an expensive and unjust outcome, then wouldn’t the landlord simply be better off not taking one to begin with?

About the author: Robert Nislick is a Massachusetts real estate lawyer who handles residential and commercial landlord-tenant matters. For more information, call him at (508) 405-1238, or e-mail him at rob@nislick.com.

Late Fees in Massachusetts Residential Leases

You are a Massachusetts landlord. You are leasing an apartment to a tenant. In the event that the tenant pays rent late, you want to be able to collect a late fee from him or her.

Can the landlord impose a late fee against a tenant who pays rent late?

“No lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” G. L. c. 186, § 15B (1) (c).

Under this statute, the landlord can include a lease provision that requires the tenant to pay a late fee, but only if the late fee is imposed after the rent has been late for thirty days.

If the lease contains a provision that imposes a late fee when the rent is less than thirty days late, the landlord will not be able to collect it. Such a provision would most likely be deemed to be against public policy and void and unenforceable.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

Condominium Trustees and Property Managers, and Their Maintenance and Repair Obligations Under Massachusetts Law and the State Sanitary Code

By Robert Nislick

It is widely known that management and control of the common areas of a condominium is vested in the organization of unit owners, which acts by and through its trustees. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 578 (1995). The term “organization of unit owners” refers to the “corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium. See Berish v. Bornstein, 437 Mass. 252, 254 n.5 (2002); G. L. c. 183A, § 1.

Condominium trustees do their job well when they are actively attuned to ongoing maintenance and repair needs in the common areas. Additionally, trustees should anticipate future common area maintenance and replacement needs. It is apparent that under the Condominium Act, and under a condominium’s governing documents, the board of trustees is responsible for maintaining and repairing the common areas.

“[T]he by-laws of the organization of unit owners shall provide . . . for . . . (a) The method of providing for the necessary work of maintenance, repair and replacement of the common areas and facilities . . . .” G. L. c. 183A, § 11 (a). “The necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws. G. L. c. 183A, § 5 (e). “The organization of unit owners shall designate a person or entity who shall oversee the maintenance and repair of the common areas of the condominium.” G. L. c. 183A, § 10 (k).

Most of the time, condominium boards and the property managers they retain do a great job in caring for the condominium. Unfortunately, however, this is not always the case. Whether through shortsightedness, limited resources, hiring bad contractors, or a lack of responsiveness, defects that may occur in common areas sometimes go unaddressed or are inadequately taken care of for too long.

A board’s inattentiveness can cause even greater problems. For example, in one case, leaks developed in a common roof just above a unit owner’s ceiling. The leak led to ceiling cracks and loosening plaster in the plaintiff’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. The threshold of the door leading from the unit owner’s unit to her deck began rotting and mushrooms started growing. The board and its contractors failed to complete a repair of the problem. Later, hazardous mold in unsafe levels was found in the unit, caused by water infiltration and chronic dampness. The unit owner’s doctor ordered her to vacate due to the presence of mold. The unit owner continued to request repairs of the leaks and chronic dampness, as well as a full remediation of the mold, but no further action had been taken.

After dealing with these problems for around five years, the owner eventually filed suit. Although the Superior Court ruled that the statute of limitations had run, the Appeals Court found that the plaintiff stated claims against the condominium trust for negligence, nuisance, and trespass, and remanded the case to the Superior Court for further proceedings.

No unit owner should have to deal with these problems for such an extended period of time. Unfortunately, if a board refuses to take care of a problem, and it gets to the point where the owner files suit, several more years of expensive and uncertain litigation for both sides may pass, and the unit owner may still see no relief.

If this had been a tenant versus landlord situation, as opposed to a condominium unit owner versus condominium trustees situation, common knowledge suggests that the tenant would have contacted the local board of health to complain that they were living in uninhabitable premises in violation of the State Sanitary Code.

A local board of health, such as Boston Inspectional Services Department, could inspect the common areas of the building and the dwelling unit itself, and issue a correction order to the owner. See 105 Code Mass. Regs. 410.830. The board of health can order that certain problems, depending on their severity, be substantially corrected within 24 hours or up to a period not exceeding 30 days. See 105 Code Mass. Regs. 410.830. One purpose of the State Sanitary Code is to “facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention.” See 105 Code Mass. Regs. 400.001.

Moreover, “nothing prevents the courts from using the possibility of criminal sanctions as a means to seek compliance with the Sanitary Code.” Inspectional Services Department v. Hernandez, Boston Housing Court No. 04-CR-00724 (Nasif, J.) (Nov. 1, 2005).

Can a condominium unit owner avail him or herself of the same remedies to enforce the State Sanitary Code that are widely available to a tenant who resides in premises which do not conform with standards of fitness for human habitation? While this may come as a surprise, the answer is yes.

“The remedies set forth herein shall be available to condominium unit owners and tenants in condominium units. Whenever used in this section, the term ‘petitioner’ shall include a condominium unit owner or tenant, the term ‘owner’ shall include a condominium association, . . . and the term “rents” shall include condominium fees.” G. L. c. 111, § 127I, eighth par.

Under the State Sanitary Code: “Dwelling unit shall also mean a condominium unit.” 105 Code Mass. Regs. 410.020.Owner means every person who alone or severally with others: . . . (2) has care, charge or control of any dwelling, dwelling unit, . . . or parcel of land, vacant or otherwise . . . ; or (5) is an officer or trustee of the association of unit owners of a condominium. Each such person is bound to comply with the provisions of these minimum standards as if he were the owner.” 105 Code Mass. Regs. 410.020. “(D) Common Areas. In any dwelling, the owner shall be responsible for maintaining in a clean and sanitary condition free of garbage, rubbish, other filth or causes of sickness that part of the dwelling which is used in common by the occupants and which is not occupied or controlled by one occupant exclusively.” 105 Code Mass. Regs. 410.602.

Additionally, condominium property managers should also recognize their responsibility for complying with the State Sanitary Code. In one case, the Housing Court found that a property manager for a condominium which had substantial violations affecting the common areas was personally responsible for Code compliance. The Court stated:

“[T]he contemporary statutory and regulatory scheme leaves it crystal clear that property managers . . . are responsible for Code compliance in their own right, regardless of [an] agency analysis. This principle is so well understood in housing law that in thousands upon thousands of cases handled by the undersigned judge over twenty years, I have never had it argued to me that a property manager does not bear this responsibility because he is the agent for the owner (or in this case, the Trust) rather than the owner himself.” Concerned Citizens for Springfield, Inc. v. Orgel, Western Housing Court No. 06-CV-0318, slip op. at 4 (Abrashkin, J.) (Dec. 6, 2007).

Accordingly, and consistent with the purpose of the State Sanitary Code, condominium trustees and property managers should fulfill their role with a view towards protecting the health, safety and well-being of the occupants of housing.

About the author: Robert Nislick is a Massachusetts real estate attorney who represents condominium associations and unit owners. Contact him today for more information.

Proposed Consolidation of Framingham District Court and Marlborough District Court Raises Concerns

By Robert Nislick

According to a draft Massachusetts Courts capital master plan obtained by Massachusetts Lawyers’ Weekly, and reported in its June 15, 2015, issue, the Trial Court proposes to close 41 courthouses and consolidate them in other locations.

The Framingham District Court, located at 600 Concord Street, Framingham, would undergo a major expansion, or a new facility would be built, within a timeframe of six to ten years, according to the draft plan. It would grow in size from three courtrooms to seven courtrooms.

Framingham and its residents and businesses would undoubtedly benefit from a modernized and enlarged facility. In addition to serving Framingham, the courthouse serves Natick, Ashland, Holliston, Hopkinton, Sherborn, Sudbury, and Wayland. The court is busy and its staff works in cramped quarters. The parking lot fills up frequently and cars spill over onto nearby streets. A new building would help accommodate the court’s present docket, and most people would probably agree, is necessary now.

Under the draft master plan, the Marlborough District Court, located at 45 Williams Street, Marlborough, would consolidate into the Framingham District Court. Presently, the Marlborough District Court, which also serves the town of Hudson, holds satellite sessions of the Worcester Housing Court and the Middlesex Probate and Family Court. Parking is good.

A proposed closure of the Marlborough courthouse would likely have an adverse impact on its residents and local economy. People with court events in Marlborough would have to travel twenty to thirty extra minutes out of their way to get to Framingham. Such additional travel would pose a considerable inconvenience to many litigants and jurors, and to the police. It would also add to the congestion on Concord Street in Framingham. Granted, the caseload at Marlborough is smaller than it is in Framingham, but the Court still accommodates a significant amount of business.

Marlborough’s occasional sittings of the Middlesex Probate and Family Court are helpful to parties and attorneys who would otherwise have to travel over an hour to Cambridge on a weekday morning. Expanding the presence of the Middlesex Probate and Family Court, and the Housing Court, in Marlborough should certainly be considered over closing the courthouse.

The draft master capital plan also anticipates the construction of a new Southern Middlesex Regional Justice Center, into which the Middlesex Superior Court would move. No specific location appears to have been proposed yet. Presently, Middlesex Superior Court sits in Woburn in a modern but distant facility, which is privately leased, and not Commonwealth owned, and also in Lowell, in an antiquated building.

Locating a new courthouse in Marlborough on state owned real estate might present several benefits. It would keep a court in Marlborough to serve its residents. It would also draw people to a part of the town that is easy to get to and park at. The goals of providing and preserving access to justice would be served. All of these potential benefits should certainly be considered and weighed against the cost of closing the Marlborough court.

Hopefully, the decision makers in Boston will recognize the need for investing in new courthouses in Framingham and Marlborough, and the benefits they will provide to our towns, and our residents and businesses.

Robert Nislick is a Massachusetts lawyer based in Framingham. For more information, call him at (508) 405-1238, or visit his web site at www.nislick.com.

Motion to Issue Execution

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

On the day of trial, you mediated your case with a housing specialist. You entered into a Summary Process Agreement for Judgment. The tenants agreed in writing to catch up on past due rent and to pay the rent on time going forward. The judge approved the agreement and it became an order of the court. You left the courthouse feeling pretty good.

Then the first of the month comes. You haven’t received any money from the tenants. They haven’t paid the rental arrearage either. How can this be? After all, they said they would pay, and you believed them.

The tenants have breached the agreement. Now you are losing even more money. And the tenants are still living in the apartment.

Your agreement for judgment probably includes a provision like this:

“If either party alleges that the other party has failed to comply with the terms and conditions of this Agreement, she/he may mark a hearing for enforcement of the Agreement or for issuance of execution upon three (3) business days, written notice to the other party and filed with the court. The three (3) day period begins when the other side receives notice. Unless otherwise agreed, notice is to be delivered rather than mailed.”

What can you do now? At this point, the landlord will want to file a Motion to Issue Execution. A motion to issue execution asks the Court to give you the document that can be used to physically remove the tenants and their belongings from the premises. In the motion, the landlord explains that the parties entered into an agreement for judgment, states that the tenants have substantially violated the agreement, explains why, and asks the Court to issue the execution.

The landlord then files the motion with the Court, marks it to be heard at an appropriate time and date, and notifies the tenants. On the day of the motion hearing, the Court will likely ask the parties to mediate the case again. This may present a good opportunity to collect some money from the tenants. If the tenants have breached the agreement for judgment and you cannot work out some arrangement with them, or if the tenants have not shown up, then you will appear before the judge and argue your motion. The motion will probably be allowed.

Soon you should receive an Execution On Judgment For Summary Process. This is the document you need to move the tenant out.

Hopefully, at this point, the tenant will have voluntarily vacated the premises.

If not, can you do it yourself? No. You will want to send the Execution to the sheriff or to a constable. He will serve a 48-hour notice on the tenant, and schedule a move out. If that officer removes the defendant’s personal property from the premises, he must store it. The plaintiff must also pay the moving costs, which are in theory, reimbursable from the defendant.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.