The Real Estate Law Podcast

5 - Preparing for an Eviction and Ending a Tenancy

April 30, 2019 Jason Muth + Rory Gill Season 1 Episode 5
The Real Estate Law Podcast
5 - Preparing for an Eviction and Ending a Tenancy
Show Notes Transcript

In this episode, we're discussing evictions and how to remove a tenant from a property.  Evictions can be tricky, and there are many details and steps that a landlord should take in order to keep the process moving smoothly and without incident.

Each step of the eviction process needs to be precise.
What is a Notice to Quit?
When should you bring in an attorney?
How will you end up in court?
When is Mediation appropriate?

Learn all of this and more!

Join Jason Muth and Attorney / Broker Rory Gill of NextHome Titletown and UrbanVillage Legal in Boston, Massachusetts for another episode of The Real Estate Law Podcast!  

Support the show (https://www.urbanvillagelegal.com)

Speaker 1:

You found the Real Estate Law Podcast because real estate is more than just pretty pictures and law goes well beyond the paperwork and courtroom arguments. If you're a real estate professional or looking to build real estate expertise, then welcome to the conversation and discover more@realestatelawpodcast.com.

Jason + Rory:

Welcome to the Real Estate Law Podcast. This is episode number five and I am Jason Muth. I'm Rory Gill. Hello Rory. Welcome, welcome. Thanks for listening. This is actually the first episode that we are recording since we've posted the podcas,t and we posted a bunch of them all at the same time. We've got some great feedback so far. Thank you for emails and thank you for your comments. We know a lot of friends of ours have listened to them and they think that I have a new calling of being on the air. Little do they know that I used to be. You have a calling apparently of being a broker and an attorney. Right? That's why we're here cause it sounds like you know what you're talking about So this is episode five and, and we have a good one today. We're going to be talking about preparing for an eviction and ending a tenancy. So yeah, looking forward to giving all our landlord friends some unhappy advice on how this whole process works here in Massachusetts. No, this isn't exactly the most loving topic unfortunately, but this is part of the gig when you are a landlord, right? And there's so many landmines in the landlord process and we're going to help outline some of them. We can't address them all in our short episode. The laws are very different in every state. So realize we are recording this in Massachusetts. that's where you have your specialty, although you're also licensed in New Hampshire. So there's some differences between states. Like I like to say- there are a lot of differences between states. This is not legal advice. I'm a lawyer, but I'm not your lawyer. Excellent. And neither am I. I'm none of those things. So let's get right into it. So, as we mentioned, we're here in Boston and Massachusetts has some extremely burdensome tenant protection laws. That statement is written from the perspective of a landlord. Absolutely. But it's true. The landlord-tenant laws here are meant to protect tenants. in some cases, rightfully so, against slumlords and those who want to take advantage of them or just cheat them every month. But the problem with the law is even some very minor technical violations can really sink a landlord. And people who've had evictions on their record, they kind of know how to play the system, right? They know how to play the system. They know how to, take advantage of a landlord's innocent mistake, a technical violation, and a lot of the process is very time sensitive. So you have to make sure you do something soon enough, but not too soon in order. Otherwise you have to start from the beginning again. Right? Like one basic thing that I think I even know, and please correct me if I'm wrong, is just how do you handle a security deposit? Right? Right. That's the biggest thing. And that's another whole podcast topic, how to handle that. But if you handle it incorrectly, it can really sabotage any effort to get a tenant out. Right? And when you say handle incorrectly, you mean like, Hey, I'm going to put this just into my checking account. If you don't put it inton a separate interest bearing accountnin the Commonwealth of Massachusetts under the social security number of the tenants and with the right disclosures. Yes. If you don't do all of that, it's held incorrectly. Okay, fine. I won't do that. So that would be considered just a technical violation. I'm sure there's a number of others that we could talk about. You put some notes together for us. and, and you said here that every step of the eviction process has to be precisely not too soon and not too late, is that correct? That's correct. If you, it's very time specific. Everything has to be filed and sent and received has to be done in a certain order and certain pretty narrow time windows. Attorneys love finding the mistakes of others don't think? They do, but the rules are set up so that somebody doing it on their own will fail. Okay. They are. So let's start with this. So when you're a landlord, but you have some property and you have a tenant in that property and the tenant has stopped paying rent, what do you do? You serve them a notice to quit right away. Okay. There's a lot of landlords will drag their feet and take their time because they figure they'll give the tenant a little bit of leeway. But the problem is the clock in the whole eviction process doesn't start until you take action. So as soon as somebody is late in rent, I suggest as early as three or four days late and rent, you serve them the notice to quit. Not because you expect that you're going to evict them because they're one week late, one time. But you want to preserve your rights as a landlord and if the delinquency grows and becomes worse, or if it repeats itself in the future, you want to make sure that you protect your rights. So, serve them with the notice to quit three or four days after the rent is due. So can you define notice to quit? What is that? A notice to quit, there are many different forms available, but it has to clearly, tell them that their tenancy is going to be terminated in the case of overdue rent in 14 days. It has to inform them of some of their rights. And it you have to have proof of delivery. Often from a lawyer, it'll be done by certified mail and regular mail, but it can be done by a constable. It can be done a few other ways, but they have to receive it. It has to provide the notice that their tenancy will terminate in 14 days if it's a matter of their rent being late or 30 days for all of their cases. And that noise in the background that you hear is Rosie, she's joined us and we've tried to evict her a couple times, but she just keeps coming back. Ahe must have a great tenant lawyer or a long-term lease and she's prepaid or something. So just a couple days late. It does sound pretty callous though. Like you're four days late with your rent and then you're getting a notice to quit. It is callous, but take that same tenant, if they are continually late in their rent and you've never sent them a notice to quit, the first notice to quit they have extra rights because they, it's their first delinquency. So even if they're late every single month, you want to take advantage of all your rights and use them. And it doesn't mean that you have to follow through and evict them once you sent them the notice to quit. But you do want to protect your rights and get the clock started. So this is if the tenant has a lease, what about month-to-month tenanta? Well if they're late on rent, it doesn't matter. It's a 14 day notice to quit. The other time that you want to serve a notice to quit, and this may also sound relatively callous, but as soon as you know that you want to end a month to month lease. If you know that, you don't want them to continue on with you, you need to serve them the 30 day notice to quit. And think about this, if you send them a notice in the middle of April, that notice will be effective for the end of May. Can you look up a line and just get a notice to quit, or is this something that you should talk to an attorney to do it? I'd recommend talking to an attorney because if you grab a form that's bad or one that's from out of state, it may not work. There are some decent notice to quit forums online, but you want to make sure that it's for the correct situation and has the correct terms on it. Okay. So a notice to quit has been served. What if this tenant is late every month by three or four days? Are they receiving one every month? So in the first time, the first notice that they received for a 14 day notice to quit for being late on rent, they have the right to pay within 10 days and cure the problem and continue on with their tenancy. But they only get that chance once a year. So that's why you want to send the notice to quit at the very first incident, because the second time they received the notice to quit, they do not have the right to make up the cure and continue their tenancy. They're done. And it's the landlord's discretion whether or not they want to accept late rent and continue on with them as tenants to the landlord could just accept rent a week later or so. And then on the go. But let's say the landlord says, I'm done with this. This tenant is the second time it's happened. What do you do next? Then you serve them the 14 day notice to quit after the 14th day, you can start the eviction process in court. Okay. So now we're going to court. What do you do before you go to court? I actually want to back up a little bit there because before jumping in court, you want to make sure you want to plan for what's ahead. Wait, you're saying that we don't, we don't just go to court like on TV. That's a very dangerous idea. Okay. in that time building up to when you can go to court, you want to take a hard look at your counterclaim risk audit. That means you want to take a look at all the things you could have possibly done wrong as a landlord and know that the tenant's going to turn around and sue you back for All of those things, what are some of the, like can you describe some of those things? Mishandling the security deposit, mishandling the last month, rent. allegations of discrimination, not providing the correct utilities, not providing good quality living accommodations. Heating and utilities? Not providing a heating system that warms it. Well, you know well enough, not. There are a whole bunch of different things and I usually start actually by taking look at the form that most tenants' attorneys used. The Massachusetts law reform institute has a form online. It's a checkbox answer and counterclaim form. It's basically a spray and pray counterclaim forum where the tenant can turnaround and very easily allege everything against you as a landlord. Even if it's not true, not true, it becomes a claim. But would you want to do to prepare yourself is take a look at this form and see any allegation that's possible against you. And if you've mishandled the security deposit, if you've done something wrong, if they've ever had any complaints against the living conditions, then you want to be prepared for it and know what's coming running into court without taking that step means that you can be surprised by the level of risk that you're going to see in court. Now, somebody who is not paying rent, likely they're not able to afford an attorney. But there are attorneys that could represent tenants on this side, right? There are a lot of programs where young or new attorneys can come into court and volunteer for the day, gain experience and represent tenants. From the attorney's perspective, it's relatively easy work and but that means that there are a lot of attorneys available for free to tenants in the housing courts. You've been to housing court? Yes, many times. Have you been on both sides of this or just one side? Technically yes, I have. In my early days I was one of those attorneys, but don't do that anymore. I work exclusively with landlords. Okay. So you're the one that's that's getting them out? That's correct. Pretty much. Okay. so what else with the Mass Law Reform Institute, which is a website that I'd never been on, but I'm going to have to bookmark it and check it out every day. Don't check it out everyday. But if you're landlord about to evict a tenant, take a look at their forms because the answer and counter claim form is the one that's most likely going be used against you. So what else should he be doing before you go into court? Honestly save some money and put it aside. The your attorney's going to cost you some money and that the eviction can drag on and take quite a bit of time. So you want to save up and understand that you're likely going to have an effective vacancy in the unit for several months, so you need to cut back your expenses, save some money, and go into financial crisis mode. As a landlord, if you have litigation against your tenants, can you be doing things like cutting off electricity? Absolutely not. I mean I hope that was a softball question. But yes, you absolutely cannot do anything like that. So, so what we should recommend, if you're in the situation where you own property, someone's not paying rent, you're going to court, you're thinking about going to court, what is just a general recommendation in terms of the condition of the property and how things are normally kept with water or with sewer, with utilities, with plowing, all that. Is the recommendation just keep on keeping on with everything, even though it's going to cost money? Absolutely. Anything that can be perceived as a roundabout way to force them out of the house is going to be treated like a constructive eviction, which will land you in serious trouble with the court and that will jeopardize all your efforts to evict them in the first place. Okay, so let's pause that for a second. We'll move on to that and to another topic. But I actually going to get back to that because I want to find out what happens later on in this conversation when you're in court and you lose what happens. But pause right there. We're going to go into a, another item on your list that you've prepared for this podcast, which is really helpful for me because I don't have any longterm tenants. This is definitely new information for me. When do you bring in a lawyer? I'm a little biased, but I recommend bringing an attorney at the very beginning because if you make an error early on in the process, you may have to start all over again. So that notice to quit that you sent in March? If it's invalid now, you can't go even go into court in June. Now you're looking at a court date in August or September. Just think about that delay. So a little bit of attorney consultation in the beginning can help prevent that outcome. If you're a company or corporate landlord or an LLC, you need to have an attorney before you go into court. If you show up to represent your corporation or LLC, the court will dismiss the case, and you will also be starting from the very beginning. Now you have been brought in on multiple cases as you've said. Are you brought in at the start? Have you been brought in when it's too late? When they said, I've been working with this tenant for so long, I went to court, it didn't work out, and now I think I need an attorney. Like what are the situations in the past that you have heard from somebody that you're going to represent? I'm brought in at all different times of the process. If I'm brought in early enough, we can prepare and make sure that everything's in order. If I'm brought in later, there are more surprises that we have to deal with. So you start off, not even, you have to undo all the mistakes that were made beforehand, right? So we're talking about how to prepare for an eviction and end a tendency. We're with attorney broker, Rory Gill, who is the one with all the super interesting and important information. I'm the other guy, Jason. All right, so now we're going to court, right? Yes. This is, this is the big day, right? So if you're, once you're heading into court, I'll say most of that for a future episode, a future topic of the podcast because that is, an entirely different discussion. But just to kind of give you a sneak peek of what's, what's to come. Once you filed the eviction action in court under the best circumstances, you're looking at about a month timeline from the time that you file it in court. Remember you cannot file it until the end of the notice to quit. And once you start the process, the best case scenario is a month. But if you've made one of those mistakes, or if the tenant takes advantage of a procedural tactic, you could be there for six months or so. Wow. So there's six months of essentially a vacancy where they're not paying anything. Yeah, it was certainly if they demand a jury trial, which is easy enough to do on the spray and pray form, then yes, the are jurors are not exactly sent to the housing court as a highest priority and there can be quite the delay in court. So if you're a landlord, you might have six months of not getting any money coming in with that property. And if you're relying on that money to pay your mortgage, what do you do? I mean you have to come up the money somewhere else absolutely in the system is set up to give some tenants some leverage in the whole eviction process. I'm sure historically that wasn't the case at that landlords, all the cards, but today that the tenants control, they drive the case in eviction court. And that's why even the worst tenant who doesn't deserve any leeway will often be paid by the landlord because it's cheaper to pay them undeservedly then to keep a vacancy for six months while you're also paying attorney fees. So that leads into the negotiation. Where is there a, you just get them out and say, listen, I'm going to just pay you and let's just call it a day. Even, even if you're going to handle this through negotiation, you still want to start the process in court because if you have, if you're in court or in the process of court, then your negotiation can be endorsed by the court and become a court order. So it's enforceable. If you try to keep it all out of court and come to an agreement and then they violate that agreement, well guess what? You're starting the process over a beat as the remedy, right? Whereas a court order can be enforced. We are in Massachusetts and these laws are specific to Mass, although this is not legal advice, right? Supposed to be entertaining, but it's information. How different do you think the other states are? I know that you probably don't know every state's landlord tenant eviction rules. However, is 90% of this consistent across the board do you think or no? No. There are a few other states that do have, a great deal of tenant protections, New York, California, and the ones you might expect. But other states, the timelines are very much abbreviated. The ability of a tenant to turn around and present counterclaims is limited. This is very much a state specific problem. Right. So you could be Idaho, Arkansas, somewhere else. How quickly could this happen, just from what you're aware of other state's laws? Two weeks. Two weeks, really? All right. Okay, so for four days after, I didn't pay rent on the first of the month, I can be out the door two weeks later? You'll serve a notice and being in court maybe being caught two weeks later. We're going to start to wrap this up, but you've kind of reminded me of some situations that we've talked about. I seem to remember you being with sheriffs on people's front lawns sometimes where things are brought outside against the tenants will. So that we can share that in a future episode as well. I want to break this down. I really, I want to focus on providing, landlords, the best advice in preparing for an eviction case. Right. But Yup. The light at the end of the tunnel is having a sheriff come at the landlord's expense, of course, to remove possessions and put them in storage also at the tenant at that landlord expense. Right. And you've seen it happen. Yes, yes. Wow. Well that could be another topic. Absolutely. Cause we're out of time right now. But thanks again for listening. Thank you Rory for all this great information. If you've ever had to face an eviction or if you've ever needed to end in tendency, if you're in Massachusetts and New Hampshire, you can certainly contact Rory where? I'm available at rorygill@urbanvillagelegal.com or just check us out at urbanvillagelegal.com. Also we should plug NextHome Titletown. Yup, absolutely. I'm also the broker at NextHome Titletown. Look for us at NextHomeTitletown.com. Excellent. Great, so this is Jason Muth. Thank you once again for listening to the Real Estate Law Podcast and we'll see you next time. Thank you.

Announcer:

This has been the Real Estate Law Podcast because real estate is more than just pretty pictures and law goes well beyond the paperwork in courtroom arguments. We're powered by NextHome Titletown, Greater Boston's progressive real estate brokerage more at NextHomeTitletown.com and UrbanVillageLegal, Massachusetts Real Estate counsel serving savvy property owners, lenders and investors more at urbanvillagelegal.com. Today's conversation was not legal advice, but we hope you found it entertaining and informative. Discover more at realestatelawpodcast.com. Thank you for listening.