Tenants’ Rights in Massachusetts - MassLegalServices - BBT... · 1 Welcome Purpose of the Training – Provide you with a better understanding of tenants' rights in Massachusetts

Mass. Law Reform Institute and Mass. Continuing Legal Education

Basic Benefits Training

Tenants’ Rights in Massachusetts

MCLE Conference CenterTuesday, January 21, 2020

Massachusetts Continuing Legal Education, Inc., is a nonprofit educational institution

MASS. LAW REFORM INSTITUTE AND MASS. CONTINUING LEGAL EDUCATION

BASIC BENEFITS TRAINING

Tenants’ Rights in MassachusettsTuesday, January 21, 2021

9:30 a.m. – 3:30 p.m.

* All materials are posted on www.MassLegalServices.org

Handout Materials

Agenda ........................................................................................................................................................ 1Introduction (slides)................................................................................................................................... 3

Eviction Part 1 (slides)................................................................................................................................. 7

Eviction Part 2 (Slides).............................................................................................................................. 20 Discrimination (slides)............................................................................................................................... 33Getting Repairs Made (slides)....................................................................................................................45Rent (slides) ...............................................................................................................................................58Evaluation........................................ ......................................................................................................... 67

SOURCE URL: http://www.masslegalservices.org/content/tenant-training-bbt

Mass. Law Reform Institute 40 Court Street 8th floor, Boston, MA 02108 617-357-0700 www.mlri.org

Jeff

Line


January 21, 2020

Agenda

9:30 Introduction

9:45- 10:45 Evictions (1 hour)

10:45 – 11:00 Break (15 min)

11:00 – 12:00 Evictions (1 hour)

12:00 – 12:45 Lunch (on your own) (45 min)

12:45 – 1:45 Discrimination (1 hour)

1:45 – 2:25 Getting Repairs Made (40 min)

2:25 – 2:40 Break (15 min)

2:40 – 3:15 Rent (35 min)

3:15 – 3:30 Open Questions (15 min)

3:30 Close Out & Evaluations

* Please complete training evaluation included with materials. Your feedback is appreciated!!

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Tenant’s Rights in Massachusetts

Mass. Law Reform InstituteMass Continuing Legal Education


January 21, 2020

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Welcome

Purpose of the Training

– Provide you with a better understandingof tenants' rights in Massachusetts.

– Focuses on evictions, discrimination,getting repairs made, and rent.

– While the training focuses primarily on rights oftenant in private housing, the eviction informationapplies to all tenants.

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Format

- For each agenda item there is built-in timefor questions after the power point.

- Questions should be framed in a general way,not about individual cases.

- References to Forms & Page numbers are toLegal Tactics.

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First Question

Who is in the room?Only check one. The best one.

Mediator Housing search worker Legal assistance for tenants Legal assistance for landlords Legal assistance for both landlords and tenants Health care Community organization Tenant Landlord Manage rental property

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Materials• Legal Tactics 2017 - 18 Chapters, Plain Language Handouts,

Forms, Letters, Booklets, Glossary

– For Updated Legal Tactics check online at:https://www.masslegalhelp.org/housing/legal-tactics1

– Following chapters have been updated• Chapter 1 – Moving In

• Chapter 3 – Security Deposits Last Month’s Rent

• Booklet 3 – Answer Form

• Booklet 5 – Transfer Form

• Booklet 10 – Negotiating a Settlement Booklet

• Directory

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Additional Materials– Other Resources

• Online eviction process course developed for volunteer lawyers at:www.masslegalservices.org/lfd-housing

• Where the Housing Court Sitshttps://www.mass.gov/orgs/housing-court/locations?_page=1

– Spanish Handouts onlinehttps://www.masslegalhelp.org/spanish/housing

– Negotiating a Settlement of Your Case (video)https://www.masslegalhelp.org/housing/lt1-booklet-10-negotiating

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Faculty

• David Brown, Community Legal Aid, Worcester

• Hed Ehrlich, Justice Center of Southeast Massachusetts, Brockton

• Jan Kendrick, South Coastal Counties Legal Services, Hyannis

• Maureen St. Cyr, Community Legal Aid, Worcester

• Patricia Whiting, Harvard Legal Aid Bureau, Cambridge

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Facing an EvictionPart I

Pattie WhitingHarvard Legal Aid Bureau

Hed EhrlichJustice Center of Southeast Mass.

Mass. Law Reform InstituteMass. Continuing Legal Education


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Key Takeaways

• Only the court can evict you.

• You can win an eviction trial.

• Understand the Eviction Process:– Moving fast– Few steps

• Notice to Quit• Summons and Complaint• Answer (and Discovery)• Trial/Motions• Execution

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Resources

Resources for tenants facing evictions:

• Legal Services: updated directory available online• Court Service Centers• Legal Tactics:

– Chapter 4: What Kind of Tenancy Do You Have?– Chapter 12: Evictions– Booklet 1: Representing Yourself in an Eviction Case– Booklet 3: Answer– Booklet 4: Discovery– Booklet 5: Transfer– Form 15: Temporary Restraining Order– Form 20: Motion to Dismiss

• MADE: https://www.gbls.org/MADE• MassLegalHelp.org

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Evictions – In Court Only

• A landlord must get an “Execution” from thecourt in order to evict a tenant.

• A lease that says that a landlord can evict atenant without going to court is illegal.

• It is illegal for a landlord to try to threat orintimidate a tenant to leave.– Call 911.– File a Temporary Restraining Order (Form 15).

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Notice to Quit

“Prior to eviction, a landlord must serve thetenant with a ‘notice to quit’ to inform the

tenant that the landlord will be seeking evictionafter a specified period of time.”

Adjartey v. Cent. Div. of Hous. Court Dep't, 481 Mass. 830, 850 (2019)

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Notice to Quit

• Before filing an eviction in court, a landlord must terminatethe landlord-tenant relationship (the tenancy) by a writtennotice.

• Termination of the tenancy must be both– (1) according the law; and

– (2) according to the lease.

• The notice terminating the tenancy is called a Notice to Quit(NTQ) (sometimes titled Notice to TerminateTenancy/Occupancy).

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Notice to Quit

Commonly, three types of NTQs:

• 14-day NTQ: for non-payment of rent• For tenants with or without a lease.

• Rental Period NTQ / 30-day NTQ• For tenants without a lease.

• Must be at least a 30-day period.

• Other term: for lease violation (not non-payment)• Depends on the lease, can be longer or shorter than 30 days.

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Notice to Quit

• The notice must be clear.

• By law, no specific service requirement. Your leasemight dictate how notice is served.

• If you have a lease, your tenancy must be terminatedaccording to the lease.

• Tenants-at-Will may be terminated for no reason at all,but the landlord must give notice of one full rentalperiod (but no less than 30 days).

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Right to Cure

• If the reason for eviction is non-payment of rent, the landlordmay send a 14-day NTQ.

• The tenant then has a right to “cure” the non-payment bytimely paying what they owe in full.

– Tenant at Will: right to cure within 10 days after thenotice. Once every 12 months

– Tenant with a lease: right to cure until the Answer Date(must also pay court filing costs and service fee, if case wasentered in court).

• New “upstream” intervention programs may have funds toassist tenants in curing non-payment of rent.

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When the NTQ Expires

“Receipt of a notice to quit, however,does not legally require the tenant to move out of

his or her home … Rather, it simply declares thelandlord's intent to go to court to seek an evictionorder if the tenant does not move out voluntarily

before the stated deadline. Nevertheless, a tenantmay reasonably – but incorrectly – believe the

notice to quit to mean that he or she must move outbefore the deadline.”


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Summary Process

• Eviction cases in Mass. have special court rules ofprocedure and are called Summary Process actions.

• An eviction case moves fast.

• Generally, the outcome of the case will include:1. Possession2. Time3. Money4. (Court may also order the landlord to make repairs or to

accommodate a disability.)

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Summary Process

“summary process cases are complex, fast-moving, and generally litigated by landlords who

are represented by attorneys and tenants whoare not.”


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Summary Process

Tenants can win eviction cases!

• If the landlord did not follow the proper process, the casemay be dismissed.

• If the landlord was found to be breaking laws protectingtenants, the tenant may win possession and/or money.

• Even if the tenant lost the eviction case, the Court maystill allow the tenant to stay in the apartment for a while.

• The tenant and the landlord can agree on a resolutionthat is acceptable for both sides.

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Summary Process

• Begins with Summons and Complaint.– Typically, a document of one double-sided printed paper which

includes a Complaint detailing the allegations; and a Summons togo to court.

• Must be served by the sheriff or a constable.– Service in hand not required (can be mailed and nailed).

• Important Dates:– Entry Date– Answer Date– Original Trial Date– Rescheduled Trial Date

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Types of Evictions

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No-fault (orNo-Cause)

Tenant can bringcounterclaims.

If tenant loses, the court shouldconsider a stay of the Execution togive tenant time to relocate.

Non-paymentof rent

Tenant can raisecounterclaimsagainst rentclaimed.

No law saying court shouldconsider stay of execution.

Fault (orCause)

Generally, nocounterclaims.

No law saying court shouldconsider stayof the Execution.

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Answer and Discovery

Answer date is tenant’s last chance to file:

• Answer: Tenant’s opportunity to tell their side ofthe story; Defenses and Counter-Claims.

• Discovery: Tenant’s opportunity to ask thelandlord questions and demand relevantdocuments.

• Jury Demand

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“Although a tenant's time to respond to his or herlandlord's complaint is sharply limited, the tenant

must generally assert any affirmative defenses andcounterclaims in the answer. […] An unrepresented

tenant is therefore expected, within a matter ofweeks, to understand and set forth his or her legal

rights, or risk waiving them.”


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• Helping a tenant get an Answer and Discovery filed (andserved!) is one of the most important things you can do asan advocate.

• Call Legal Services ASAP. Especially if the case involvescause allegations or criminal activity.

• Fill out your own Answer and Discovery using MADE – anonline service for unrepresented tenants and advocates :https://www.gbls.org/MADE

• Or download Answer and Discovery forms frommasslegalhelp.org.

• All forms must be printed and copied, filed in the court,AND served on the landlord not later than Answer Date.

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Answer and Discovery• Updated forms available online

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Answer

Defenses:

1. Denial of landlord’s claims2. Procedural Defenses3. Retaliation4. No Significant Lease Violation5. Avoidance of Forfeiture

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Answer

Counterclaims:(Also serve as Defenses; not always allowed in faultevictions):

1. Bad Housing Conditions2. Breach of Quiet Enjoyment3. Discrimination/Reasonable Accommodation4. Utilities violation5. Security Deposit or Last Month’s Rent violations6. Unfair and Deceptive Business Practices

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Discovery

• Timely filing of discovery requests automaticallypostpone the trial date by two weeks.

• If no discovery responses (or inadequatediscovery responses) given, the tenant should filea Motion to Compel Discovery Responses and topostpone trial date further. Must be filed withinfive days of the time discovery is due.

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Jury Trial

• Jury trial request must be filed by the Answerdate. No second Chance!

• The parties can later agree to have a trial infront of a judge without jury (bench trial).

• It usually postpones trial date.

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Transferring Case to Housing Court

• The landlord can choose to file a Summary Process action ineither a District Court or the Housing Court.

• The Tenant can transfer the case to Housing Court anytimebefore the date of trial.

• Before you transfer a case, consider:– Housing Courts often have more expertise on the issues.– Housing Courts have more resources to serve

unrepresented tenants: Housing Specialists, TenancyPreservation Program, Lawyer for the Day.

– District Courts are sometimes more conveniently locatedand more accessible by public transit

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Where the Housing Court Sits

EASTERN DIVISION• Boston Session• Somerville Session• Chelsea Session

METRO SOUTH DIVISION• Brockton Session• Canton Session

CENTRAL DIVISION• Worcester Session• Dudley Session• Leominster Session• Marlborough Session

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SOUTHEAST DIVISION• Plymouth Session• Taunton Session• Barnstable Session• Fall River Session• New Bedford Session

NORTHEAST DIVISION• Lawrence Session• Lowell Session• Lynn Session (in Salem)• Salem Session

WESTERN DIVISION• Springfield Session• Greenfield Session• Hadley Session• Pittsfield Session

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Facing an EvictionPart II

Pattie WhitingHarvard Legal Aid Bureau

Hed EhrlichJustice Center of Southeast Mass.



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Trial DateBe There and Be Prepared

• Tenant must show up on time!

• If not, they will be defaulted - which means they lose the caseand the landlord will be able to move them out if not defaultis not removed.

• Tenant must come prepared to present all evidence and bringany witnesses needed to refute the claims made by thelandlord, and to support any defenses or counterclaims.

• If your client has defaulted it is very important that a Motionto Remove Default be filed ASAP. See Legal Tactics page 521for Removing Default Form.

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Important Items to Bring to Court• Copies of any paperwork related to/filed in the case.

• Lease/rental agreement.

• Notices to the landlord about conditions (includes emails andtexts – must be printed).

• Rent receipts.

• Photographs of poor housing condition (must be printed).

• Any inspection reports verifying poor housing conditions.

• A list of questions to ask the landlord.

• Any witnesses the tenant wants to testify.

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Court ResourcesLawyer for the Day

• Many of the Housing Courts have a Lawyer for theDay program where unrepresented tenants can getinformation, advice, and limited assistance.

• You should strongly recommend to your clients thatthey seek help from the Lawyer for the Day programwhen they get to court.

• Tenants should try to get to court early becausethere are far more tenants seeking assistance thanthere are lawyers available.

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Court ResourcesTenancy Preservation Program

• The Tenancy Preservation Program (TPP) is a homelessnessprevention program based in the Housing Court.

• TPP works with tenants facing eviction as a result of behaviorrelated to a disability.

• TPP works with tenants to set up services to address theunderlying causes for the eviction.

• TPP may be available to assist “upstream” before a courtcomplaint is filed.

• Let your client know of TPP availability at all Housing Courts,and encourage your clients to reach out to them.

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General Tips for Court

• It is essential that the tenant is on time for court! If theyare even a few minutes late, they will likely be defaulted.Plan ahead!

• Depending on the court and how many cases are on,they might be in court through the afternoon. Makeback up plans for work/child care just in case. Bringsnacks!

• If the tenant doesn’t speak English or they need aninterpreter, call the court in advance and/or tell the clerkwhen you get to court.

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The Trial Date

• Eviction cases can be resolved in two ways:either by an agreement between the partiesor by the judge after a trial.

• More than 90% of eviction cases areresolved by an agreement reached betweenthe parties.

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Agreements• The agreement is usually an Agreement for Judgment (AFJ),

where judgment for “possession” and any rent owed entersfor the landlord.

• A “judgment for possession” means that the landlord wonthe right to the apartment. Often, however, the AFJ willallow a tenant to stay in their home if they comply withcertain terms (usually involving payments and/or behavior).

• A tenant should not agree to terms that she will not be ableto follow. The consequences for violating an AFJ is almostalways immediate eviction.

• Agreements cannot be changed unless both sides agree, sodon’t agree to something thinking you can ask for a changeto the terms later.

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Mediation/Negotiation

• Most summary process cases are resolved by anagreement between the parties rather than goingto trial.

• Parties at Housing Court are invited to mediateusing the House Specialist Department, ornegotiate directly with the opposing party in aneffort to reach a settlement. Some District Courtsalso have mediation programs.

• Both parties must agree for a matter to go tomediation/negotiation.

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Mediation/Negotiation (continued)

• Mediation is an opportunity to problem-solve aboutthe case and craft a compromise between the parties.It’s almost always a good idea to try to negotiate anagreement rather than going right to trial.

• While agreements arising from mediation ornegotiation can be good for the tenant, sometimesunrepresented tenants are taken advantage of sincemost landlords have experienced attorneysrepresenting them.

• Advocates have to be vigilant to make sure thattenants are not being pressured into bad settlementsor terms that they cannot comply with.

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Tips for Agreements• If the tenant does not have an attorney and the other side

does, try not to negotiate without a Housing Specialist as amediator if they are available at the court.

• Make sure that everything that’s important is in theagreement (for example, that certain repairs are gettingdone, or that the tenant is given an extension on when themonthly rent is due). Make sure the tenant gets somethingout of the agreement too!

• Ask a volunteer attorney of the day to review the terms ofthe agreement before the tenant signs it, if they areavailable at the court.

• Above all: do NOT sign anything that is unrealistic for thetenant to fulfill. If they cannot comply with the agreement,the landlord can come back to court and ask that they beallowed to move the tenant out.

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Advocacy Tips:Booklet 10 Negotiating a Settlement

• Use Worksheet: What Terms Do I WantSee Booklet 10, Legal Tactics page 585.

• Organize the tenant’s goals and demands as well astheir vulnerabilities.

• Read about negotiation strategies and get answers tocommon questions.

• Review alternative forms of settlement or resolutionto the case besides an Agreement For Judgment(stipulations v. judgments).

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After an Agreement:Motion to Issue Execution

• If the eviction case was settled by an Agreement forJudgment and the landlord claims that the tenantdid not comply with the terms, the landlord can filea Motion to Issue Execution, which asks the court togive the landlord permission to move the tenant outof their home.

• An execution is a piece of paper that gives thelandlord the legal right to move the tenant and herbelongings out and retake possession of the unit.

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Execution

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See Legal TacticsForm 21page 671

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Motion to Issue Execution

• The main issue the court will consider in decidingthe motion is whether the tenant complied withthe agreement (“whether there was a substantialbreach of a material term of the agreement”).

• Other issues like conditions of disrepair are usuallynot considered by the judge, even if the tenant didnot pay rent because of problems in their home.

• A tenant should NEVER withhold rent if they’vesigned a court agreement that requires them topay rent.

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Motion to Issue Execution (cont.)

• If the court allows the landlord’s motion to issue execution,it issues the next day and the landlord may take theexecution to a constable to serve a notice that if they donot vacate the premises, the tenant and all property will beremoved on a specific date and time which is at least 48hours after the notice is served (“a 48 hour notice”).

• A tenant that has signed an agreement and then violates itcan be moved out very quickly. That is why it is veryimportant to make sure that the tenant can comply withthe terms of the agreement before they sign.

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Summary Process Trial

• If the parties can’t reach an agreement orone side does not want to mediate, the casewill go before a judge.

• Most tenants go to trial without a lawyer.

• Tenants don’t need to use special legallanguage, they just have to make sure thejudge understands the issues, facts andarguments that are important to thetenant’s case.

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Summary Process Trial (cont.)

• Landlord goes first and presents her evidence (for example:witness testimony, documents, photos, notices, etc.).

Tenant has a chance to cross-examine witnesses andobject to evidence.

• Then tenant gets to present her case and evidence (includingtestimony, documents, photos etc.).

Landlord has a chance to cross-examine witnesses andobject to evidence.

• Judge will usually take matter “under advisement” and send awritten decision in the mail as to who has the right to theapartment and what, if any, money damages are owed.

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What Happens After the Trial

• The court will mail the decision to the parties.

– Tenant may win “possession” i.e. the right to the apartmentand/or damages or may need to make a payment in order tokeep possession

– Landlord might win possession and/or money damagesagainst the tenant

• The parties have 10 days from the date of the court’sdecision to appeal. (Tenant can also seek stay ofexecution in appropriate cases.)

• If the landlord wins at trial, she may be entitled to ajudgment for possession of the apartment and/or ajudgment for unpaid rent.

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What Happens After the Trial (cont.)

• If the landlord wins at trial and the tenant doesn’tappeal within 10 days, they can get the execution,which is then given to a sheriff or constable.

• The constable then serves a 48 Hour Notice on thetenant notifying her that if she does not move out ofthe unit, he will levy on the execution – which meanshe will move the tenant and her property out of theapartment. The notice must state the date and timethe tenant will be moved out and must be served atleast 48 hours notice prior.

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48 Hour Notice to Vacate

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What to Do If A ClientReceives a 48 hour notice

• Seek a “Stay” or Temporary Restraining Order (TRO) Against Use ofExecution: If the tenant has been served with the 48 hour notice and isnot ready or able to move, he may go the court to ask for more time in hishome.– A landlord may give a tenant a short time to move out on their own

because it costs a lot of money to levy on the execution. So talk to thelandlord even if the court denies the tenant’s request for a stay.

• Get Default Removed or Ask for New Hearing: If the tenant wasdefaulted in court, or if they missed a hearing on a motion to issueexecution (lack of notice, illness, etc.), the tenant should file papers to getthe default removed or to ask for another hearing.

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Temporary Restraining OrderForm 15

• Write a complaint explaining what is going on andwhat the tenant wants the court to do about it.

• Bring all proof.

• Ask for an Affidavit of Indigency to have fees waived.

• Hearing will be right away or soon after case is filed(client may need to serve the landlord).

• Tell the judge what is happening and what the tenantwants the court to do.

• Listen carefully to the court’s decision and get a copyof her written order granting or denying the requestfor relief.

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Levy on the Execution

• If the tenant does not ask for a TRO/stay or the judgedenies their request, the levy will go forward.

• Advise tenants to get their important belongingstogether and bring them with them (clothes, birthcertificate and other important papers, medicines,etc.).

• MA storage law – property must be stored in alicensed and bonded warehouse; can be sold after 6months.

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Practice Tips forHelping Tenants Facing Eviction

The most important thing to do when attempting to assist a client facingeviction is to properly assess where she is in the process. Here are some helpfulquestions to ask to quickly figure out what stage the case is at:

1. Can you read me the notice you have received?

• Might be an NTQ, Summons, Court Date Notice, Judgment, or 48 hr.notice—advice and options are different depending on the notice.

2. Have you ever been to court before?

• If yes there could be an underlying agreement in the case and youwant to ask about that.

• Check MassCourts.org to look up the case.

3. Does the notice say that the Sheriff will be coming to your house to moveyou out?

• Consider filing a TRO, trying to negotiate with the landlord, orpreparing for levy by applying to shelter.

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Considerations In Settling Eviction Casesfor Clients with Section 8 Vouchers

• If the tenant has a Section 8 voucher and she were to loseat trial, the housing authority must move to terminate thevoucher. So it may be better to negotiate a settlementrather than going to trial. You can add language to thesettlement that might help protect the voucher. Advisethe tenant to contact a lawyer to assist with this.

• Some Housing Authorities will not issue a relocationvoucher to a tenant where there is a pending evictioncase. Discuss this with PHA and what it would take toresolve this (repayment terms for “good standing”,showing legitimate dispute with owner.)

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Housing Discrimination

Maureen St. CyrCommunity Legal Aid

Worcester, MA



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Introduction and Overview

• What is housing discrimination– Who (tenants, homebuyers) is protected?– Who (landlords) is covered by laws?– What conduct is illegal? What affirmative rights do tenants

have?

• What to do if you experience housing discrimination

(See Chapter 7 of Legal Tactics)

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What Is “Fair Housing”

Fair housing is the idea (and legal right) thatEVERYONE has a right to be treated without

illegal discrimination when seeking housing (andliving in it!)

• Fair housing laws exist to:– Guarantee the same housing opportunities to everyone

– Protect tenants and homebuyers from discrimination inhousing

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Federal and State Laws

• Massachusetts law:– MGL c. 151B– MGL c. 111, s. 199A

• Federal law:– Fair Housing Act, 42 U.S.C s. 3601, et seq.

BASIC PRINCIPLE:Housing providers must not treat tenants differently

“because of” who they are

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Who is Protected (Renters)

– Race

– Color

– National Origin

– Sex

– Sexual Orientation*

– Gender Identity*

– Religion

– Marital Status*

– Familial Status (includeslead paint protections)*

• Age (except minors)*

• Ancestry*

• Disability

• Receipt of publicassistance*

• Receipt of a housingsubsidy*

• Veteran status*

It is illegal for a housing provider to treat a renter differentlybecause of. . .

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Who Is Covered (Landlords)

• Non-exempt housing providers

• Okay, but what does that mean?

– Exemption for very small landlords• MA: owner occupied 2 family home

• Federal law: owner occupied building with 4 units or fewer

• But not always…. (exceptions to the exceptions)

– Race

– Receipt of public assistance/housing subsidy

– Statements

– Etc.

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What is Prohibited

• Refusing to rent

• Offering different terms or conditions

• Giving false information about a unit’s availability

• Refusing to grant reasonable accommodations ormodifications

• Advertising that indicates a preference or limitation

• Making a discriminatory statement

• Steering

• Threatening, coercing or intimidating (retaliating)

• Using policies that perpetuate discrimination

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Common Examples

• Disability Discrimination – most commonly reportedform of discrimination (see next slide)

• Discrimination Based on Section 8

• Lead Paint Discrimination / Familial StatusDiscrimination

• Evictions due to domestic violence

• Sexual harassment by landlords and/or their agents

• Discrimination against elderly/people with disabilities(e.g., based on perceptions about their ability to liveindependently/meet terms of lease)

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Reasonable Accommodations &Modifications

• Accommodations:policies, practices,procedures

• Examples:– Change in rent date

– Assistance or serviceanimal

– Preserve tenancy afterlease violation due todisabilities where reasonfor violation is addressed(e.g., new services in place)

• Modifications: physicalchanges

• Examples:– Parking spot

– Ramp

– Widening door

– Roll-in shower

– Automatic shut-off stove

– Etc.

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RequestingAccommodation/Modification

• Tenant must make request– How? Explain WHAT is needed

• NO MAGIC WORDS necessary, do not need to use specificforms.

• Does not need to be in writing, but best practice to do so(keep copy for your records!)

• Landlord can request medical verification ofdisability/need, if not “readily apparent”

• Everyone engage in “interactive dialogue”• NOTE: Landlord failing to act on RA request for

long period of time can be deemed a denial

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Considerations for Medical VerificationLetters

• A medical verification letter should:– Be on letterhead and signed by the provider– Contain a brief statement of who the provider is to the client– State the client is impacted by her disabilities & in what ways– State the needed accommodation– Explain how the accommodation will enable client to have full

use and enjoyment of her dwelling

• A medical verification letter should not:– State a medical diagnosis– Invite housing providers to contact the medical provider for

further information– Simply state that the client would be harmed by being made

homeless

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Sample RA letters: Simple Letter withMedical Verification

Dear [Housing Provider]:

I am a tenant at [ADDRESS]. Because ofmy disabilities, I need an assistanceanimal (a dog).

Please make an exception to your “nopets” policy to allow me to have a dog.

Please contact me to let me know yourresponse to this request, including if youneed anything further from me.

Sincerely,

Tenant

To Whom It May Concern:

I am [Tenant’s] therapist. Ms. [Tenant]has an anxiety condition that makes itdifficult for her to sleep and be aroundmany people. Ms. [Tenant] needs a dogas a companion to enable her to feel safein her home and in the common areas.Please make an exception to your “nopets” policy to allow Ms. [Tenant]to havea dog.

Sincerely,

Doctor Jones

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Reasonable Accommodation inEviction Context

• Reasonable accommodations can be requested at any time, includingduring eviction process.

• Can be raised as:– A defense to eviction: Request for RA.

• Example: Tenant did not comply with lease due to disabilities, but can with new servicesin place.

– A counterclaim in no fault or non-payment case: Denial of RA.• Example: Landlord evicts for no reason, but Tenant previously requested assistance

animal and Landlord denied.

– OR as a counterclaim in fault cases where denial of RA is central to claim oflease violation (proceed with caution).

• Example: Landlord evicts for lease violation but after Tenant requests accommodationrelating to same lease violation. Landlord’s determination to proceed with eviction ratherthan accommodation could give rise to counterclaim for denial of RA.

• Practice point: if Tenant has filed a complaint with MCAD raisingdiscrimination claims and raises same claims in eviction case, will need tochoose between bringing those claims at MCAD versus in housing court.

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Sample RA letters: Pending EvictionCase

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Dear [Property Manager]:

Please accept this letter as confirmation of my wish to return to myapartment at [address].

I have been assessed for in-home services by Montachusett Home CareCorporation. It is my intention to accept assistance from them so I mightreturn home and maintain my independence with these formal supports.

My discharge date home is not yet determined but would be near the first ofthe month in August, and possibly sooner.

Thank you for your consideration and assistance in this matter.

Sincerely,[Tenant]

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Enforcement: What to Do

• Document everything

– Print a copy of the advertisement

– Keep notes of who you spoke to, when you spoketo them and what they said

• Seek assistance investigating

• File a complaint

15

Resources: Fair Housing Organizations• BostonSuffolk Law School Housing Discrimination TestingProgram120 Tremont StreetBoston, MA 02108(617) 884 – 7568www.suffolk.edu

Lawyers for Civil Rights61 Batterymarch StreetBoston, MA 02110Phone: (617) 482-1145http://lawyersforcivilrights.org/

• South Coastal RegionSouth Coast Fair Housing257 Union StreetNew Bedford, MA 02740(774) 473-8333http://southcoastfairhousing.org

• Central MACommunity Legal Aid405 Main StreetWorcester, MA 01608(855) CLA-LEGALwww.communitylegal.org

• Western MAMassachusetts Fair Housing Center57 Suffolk StreetHolyoke, MA 01040(413) 539-9796(800) 675-7309http://www.massfairhousing.org

16

40

Resources: Where to File a Complaint

• Massachusetts Commission AgainstDiscrimination (MCAD)

Boston Office: (617) 994-6000

TTY (617) 994-6196

New Bedford Office: (754) 540-5801

Worcester Office: (508) 453-9630

Springfield Office: (413) 739-2145

• U.S. Dep’t of Housing and UrbanDevelopment (HUD)

Online at:www.hud.gov/complaints/housediscrim.cfm

Hotline: (800) 669-9777

TTY: (800) 927-9275

• Court

Federal or state housing or superior

• Complaints can also be filed with theMA AGO or with local fair housingcommissions

Boston Fair Housing Commission

Boston City Hall, 1 City Hall Plaza, Rm.966, Boston MA 02201

617-635-2500

Cambridge Human Rights Commission

51 Inman St., 2nd fl., Cambridge MA02139

617-349-4396

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41

Serving Central and Western Massachusetts

A United Way Partner Agency

MAUREEN ST. CYR

STAFF ATTORNEY

[email protected]

405 MAIN STREET WORCESTER, MA 01608

(508) 752-3718 • (855) 252-5342 (508) 752-5918 FAX (508) 755-3260 TTY

OFFICES:

FITCHBURG GREENFIELD MILFORD NORTH ADAMS NORTHAMPTON PITTSFIELD SOUTHBRIDGE SPRINGFIELD WORCESTER

March 31, 2017

, Esq. Housing Authority

, MA

Re: Reasonable Accommodation Request Dear Attorney : I represent . Mr. was issued a moving packet to use with his Section 8 voucher by the Housing Authority on or around August 31, 2016. Mr. ’s voucher was subsequently referred to the , as he was attempting to locate a unit to lease up at in . Mr.

’s voucher expired on or around October 30, 2016. Mr. suffers from very serious medical conditions, which resulted in him being hospitalized in early September 2016 through February 21, 2017. I am enclosing supportive documentation speaking to this fact. Due to the fact that he was hospitalized, Mr. was unable to engage in housing search during the initial time period he was provided to locate a unit at which to use his Section 8 voucher. His case worker from Community Healthlink, , attempted to contact Mr. ’s housing specialist worker, , but was unable to do so. Had Mr. been able to contact Ms. , he could have requested an extension of search time, pursuant to the ’s Administrative Plan, Section 5.3.2. I have little doubt that, had such a conversation taken place, Mr.

would have been approved for an extension as a reasonable accommodation given his lengthy hospitalization. Because Mr. ’s voucher expired due to his disability-related hospitalization, he respectfully requests that the reinstate his voucher, effective immediately. We believe this request is reasonable, given the severity of Mr. ’s disability, and that reinstating Mr. ’s voucher would not pose an undue financial or administrative burden or fundamentally alter the Housing Authority’s programs. I thank you in advance for your consideration. Please contact me at (508) 425-2787 if I can answer any additional questions or concerns.

Very truly yours,

Maureen St. Cyr Staff Attorney Encl.

42

Serving Central and Western Massachusetts

A United Way Partner Agency

MAUREEN ST. CYR

STAFF ATTORNEY

[email protected]

405 MAIN STREET WORCESTER, MA 01608

(508) 752-3718 • (855) 252-5342 (508) 752-5918 FAX (508) 755-3260 TTY

OFFICES:

FITCHBURG GREENFIELD MILFORD NORTH ADAMS NORTHAMPTON PITTSFIELD SOUTHBRIDGE SPRINGFIELD WORCESTER

March 25, 2016

VIA ELECTRONIC MAIL

Director of Human Resources

Housing Authority

, MA Re: Reasonable Accommodation Request – Dear Hearing Officer : A hearing was held Thursday, March 24, 2016, regarding Mr. ’s request for a reasonable accommodation, specifically, to be allowed to remain in his unit with a coordinated plan for mental health supports in place. You requested that I submit a service plan laying out who his service providers would be. I am submitting this letter in response to your request. It is our belief that this service plan provides satisfactory assurances that Mr. has received and is receiving ongoing treatment to eliminate the any risk the Housing Authority ( ) believes he might pose to other residents.1 As a result, we are requesting that the denial of his request for accommodation be overturned and he be allowed to remain as a tenant at the . As laid out in his reasonable

1 As articulated at the hearing, when a housing provider believes that a tenant poses a “direct threat” to other residents based on a history of overt acts, that provider must take into account whether the tenant has received intervening treatment to eliminate the significant risk of substantial harm to other tenants. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (2004), at 4-5 (hereinafter “HUD Memorandum”). The provider may request satisfactory assurances that the tenant will not pose a direct threat, for example, appropriate counseling and periodic medication monitoring. Id. at 5-6. Even in a situation where a tenant has been arrested and pled guilty to three counts of assault, the Supreme Judicial Court held that, prior to evicting that tenant, the housing provider was still required to engage in the reasonable accommodation process and demonstrate that no accommodation existed that would eliminate or acceptably minimize any risk posed by the tenant to other residents. Boston Hous. Auth. v. Bridgewaters, 452 Mass 833, 842. Any determination that no accommodation exists must be based on reliable, objective evidence or medical knowledge, rather than fear, speculation, or stereotype, otherwise the determination can provide the basis for a claim of disability discrimination under state and federal fair housing laws. . HUD Memorandum, at 4, 24 C.F.R. § 9.131(c).

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2

accommodation request, submitted February 29, 2016, his service plan is as follows:

1. Medication management through regular meetings with a psychiatrist. The Tenancy Preservation Program (TPP) has referred him to Dr. at Community Healthlink (CHL) as his new PCP through its Homeless Outreach & Advocacy Project (HOAP) at 162 Chandler Street. HOAP has its own medical clinic and can provide comprehensive assistance using a team-based system so that Mr. will have coordinated care with his providers working closely together to monitor his ongoing condition. Mr. has an initial appointment scheduled to develop a team of service provider including a psychiatrist, a case manager and a therapist.

2. Counseling on a regular basis. Counseling will also be provided through CHL’s HOAP program at as described above. To supplement the weekly or bimonthly counseling (as determined by his therapist’s evaluation of his need), he is willing to attend day programs at Genesis Club to provide social support.

3. Visiting nursing services on a weekly basis. Mr. is also eligible for in-home nursing services to check on Mr. in his unit and confirm medication compliance on a weekly basis. These services are being coordinated through his medical providers at Spring Valley and CHL and would likely be provided through Apex K Home Care, Century Home Care or the Nizhoni Center. Upon consultation with his physician and as needed, the frequency of the visiting nursing visits could be increased.

4. Utilization of a medication dispenser to monitor his medication intake. This machine will audibly alert Mr. when he is supposed to take his medication at various points throughout the day. If he fails to remove his pills, it will notify, through his landline service, his next of kin and then Elder Services.

5. Home visits by his Elder Services caseworker every three months. Mr. ’s regular Elder Service caseworker will be . She will Be providing home visits to check on his ongoing status. Elder Services can also provide homemaker services and meals if needed.

I hope this provides the additional level of detail you require in evaluating Mr. ’s request. Should you have questions or need additional information, please do not hesitate to contact me.

Very truly yours,

Maureen St. Cyr Staff Attorney

44

1

Getting Repairs Made

David A. BrownNortheast Legal Aid

Lowell, MA



2

Tenants Have A Right toA Decent Place to Live

In MA, there are 4 sources of this right:

1) State Sanitary Code;

2) City/Town health ordinances;

3) The warranty of habitability; and

4) The law of quiet enjoyment.

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3

State Sanitary Code

• Massachusetts regulations whose purpose is to protect thehealth, safety and well-being of the occupants of residentialhousing.

• Sanitary Code sets minimum legal standards that landlordsmust meet, and applies whether you have a lease or not.

• For example, all rental housing must have heat, hot water andelectricity. Kitchens and bathrooms must have sinks withrunning water.

4

• The Sanitary Code is enforced by local health departments. InBoston, Cambridge and other towns, it is enforced by theInspectional Services Department (ISD).

• If ISD or the local board of health find a violation, theLandlord is ordered to make repairs within a certain numberof days after being cited for the violation.

• The Housing Code Checklist (Booklet 2; P.443) outlines themain parts of the Sanitary Code and tells you how long aLandlord has to make repairs after being cited by ISD.

State Sanitary Code

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5

• In addition to the Sanitary Code, landlords must comply withany local ordinances regulating rental housing.

• These ordinances may impose stricter requirements onlandlords than the Sanitary Code.

– For example, some cities have a local health ordinancerequiring landlords to obtain a certificate of occupancyfrom the local board of health before renting.

– Ordinances apply whether or not a tenant has a writtenlease.

Local Health Ordinances

6

Warranty of Habitability

• In renting property, landlords are promising that theapartments that they rent are safe and habitable.

• A Landlord is in violation of the warranty of habitability (WOH)from when he has notice of conditions that may endanger orimpair health and safety under the Sanitary Code.

• Tenants have this right whether or not there is a written lease.

• The Landlord cannot avoid this duty by including a lease termthat makes the tenant responsible for all repairs.

• The Landlord cannot claim that he lowered the rent the tenantwas charged because of the bad conditions.

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7

The Law of Quiet Enjoyment

• If conditions are very serious such that they impact thetenant’s ability to use and enjoy her home, the Landlord hasinterfered with the tenant’s right to quiet enjoyment.

• A tenant has a right to be free from unreasonableinterference with the use of her home.

• Such conditions that might interfere with the tenant’s quietenjoyment include, but are not limited to:

– No heat

– No water

– Rodent infestation

8

How to Get Repairs MadeNotify the Landlord about the problem and ask her to makerepairs – best to do it in a way you can document (letter, text,email) in case the Landlord later decides to deny receivingnotice.

– Keep copies of all communications to help document yourefforts to get repairs made.

– Take pictures.

– Landlord should give you “reasonable” notice of when he’scoming to make repairs (at least 24 hours).

– Ask the Landlord to reschedule if you cannot be availableat the time he suggests.

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9

How to Get Repairs Made

• Call ISD or the local board of health – if the Landlord has notmade repairs after you’ve notified him and given him areasonable chance to make repairs, you can request aninspection of the apartment from the board of health.

• The inspector will cite any violations of the Sanitary Code andorder the Landlord to make repairs within a certain period oftime.

• It is illegal for a Landlord to take action against a tenant forcalling the board of health.

• The law does not require that you contact the landlord beforecalling the board of health or ISD

10

Board of Health Inspection

• Try to schedule a definite appointment for the inspection.

• An inspection should be done within 5 days of your request(24 hours if an emergency).

• If you have difficulty getting an inspection scheduled, youshould write a letter to the board of health requesting aninspection (and keep a copy for yourself).

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11


• Be prepared for an inspection – inspectors can cite the tenantfor violations of the Sanitary Code including not taking outtrash, unsanitary kitchens, excessive clutter or blockinghallways or doorways. So clean up if necessary.

– but not mouse and roach droppings!

• Request a “comprehensive” inspection, which includes theunit, the exterior of the building and all common areas.Otherwise, the inspector is only required to check for seriousviolations and the conditions you specifically asked to bechecked.

12


• Don’t rely on the inspector to find everything, even if yourequest a comprehensive inspection. Point out all violationsyou know about and make sure the inspector writes themdown.

• The inspector should give you a copy of her report at the endof the inspection. If she doesn’t do so, ask for one.

• The inspector must send a signed copy of her report to theLandlord within 7 days.

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13


– If the inspector finds a condition that is so serious that it“may endanger or materially impair” the safety or well-being of the occupants, she must send your Landlord acopy of the report within 12 hours and the Landlord isrequired to make a “good faith effort” to correct theseviolations within 24 hours of receiving the notice.

– For less serious violations, the inspector should send thereport within 7 days of the inspection and include an orderthat the Landlord must begin making repairs within 5 daysand complete them within 30 days of receiving the order.

14

What if you don’t agree with theresults of the inspection report

1. File a complaint with the town Board of Health.

2. Contact the state Department of Health CommunitySanitation Division.

3. Speak to government representatives or the media.

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15

Options if the LandlordRefuses to Make Repairs

If the Landlord does not make repairs after you have eithernotified him in writing or he has been ordered by the Board ofHealth to make repairs, a tenant has several options:

1) Withhold rent

2) Repair and Deduct

3) Go to Court

4) Organize

5) Break your lease

16

Withhold Rent

• Withholding rent can help get repairs done, but there arerisks as well.

• A tenant can withhold rent if:

– Conditions that violate the Sanitary Code exist;

– They “endanger or materially impair” the health andsafety of the occupants;

– The Landlord has knowledge of the conditions before youstart withholding or otherwise fall behind in rent.

– Conditions not caused by the tenant, household memberor guest.

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17

Withhold Rent• If a tenant legally withholds rent, the Landlord cannot evict

the tenant for nonpayment of rent, although he may try to doso.

• Withholding can give the tenant power to negotiate aboutwhat repairs are made and when, and how much of thewithheld rent the Landlord will receive when they have beencompleted.

• Tenant should hold onto the withheld rent so it’s available topay the Landlord after repairs.

18

Withholding Rent

Be prepared for how the Landlord may react – he may try toevict you. Before you withhold make sure you:

– Document the bad conditions with pictures or videos;

– Save all communications with your landlord about theconditions;

– Meet all the requirements of withholding rent;

– Hold onto the withheld rent;

– Use the sample Rent Withholding Letter (Form 12; p. 642)

Do not withhold rent lightly!!

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19

Withholding Rent cont.

Section 8 voucher holders should be especiallycareful with this tactic as many housing authoritiesare under the mistaken belief that a voucherholder may not withhold rent.

20

Repair and Deduct

• If certain conditions are met, tenants have the right to makerepairs and then deduct up to 4 months rent to cover thecost.

• Doing this right is tricky, so make sure you meet all therequirements before you do so.

• This method is not widely used, in part because it is difficultto comply with the requirements of the statute.

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21

When can a tenant repair and deduct?

1. The violation must “endanger or materially impair” thehealth, safety and well being of the tenant and must havebeen certified by a health inspector or a court as existing;

2. The Landlord or agent must have written notice of theseviolations;

3. The landlord must have failed to substantially completerepairs within 14 days;

4. The tenant or someone under their control must not havecaused the conditions issue; and

5. The tenant must have cooperated with any attempts by thelandlord to make repairs.

22

Go to Court

• If the Landlord refuses to make repairs you can takehim to court.

• The court has the power to order the Landlord tomake repairs or restore utilities (heat, electricity,water etc.).

• You can also sue the Landlord for damages, but thatwon’t get the repairs made.

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23

Organize

• If there are conditions in multiple units of the building,you can try to get other tenants to agree that you will allwithhold rent until the Landlord makes repairs.

• You can also have multiple tenants bring a case in courtseeking an order that the conditions be fixed.

• If conditions are really bad, the tenants together canrequest the appointment of a receiver to take overmanagement of the building.

• Review Chapter 10 of Legal Tactics on Organizing. (p. 199)

24

Break your Lease

• Where there are very serious violations of the Sanitary Codein your apartment, a tenant may be able to break her lease.

• Before doing this you should make sure to give the Landlordwritten notice of the conditions and an opportunity to repair.Also best to get a Board of Health inspection.

• The Landlord may try to sue you for the balance of the rentdue under the lease. So make sure you have documentationof conditions and efforts to get repairs.

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25

When Can a Landlord Enter

• A landlord must have permission to enter a tenant’sapartment

• A lease may allow landlord to enter to:

– Inspect the apartment

– Make repairs

– Show apartment to prospective tenants or buyers

• Whether a tenant has a lease or not, tenants required toprovide reasonable access to make repairs.

57

Rent and Other Payments

Jan KendrickSouth Coastal Counties Legal Services


Basic Benefits Training1

Where to Learn about Rent

Legal Tactics:

– Chapter 1: Before You Move In

– Chapter 3: Security Deposit and Last Month’s Rent

– Chapter 5: Rent

– Chapter 6: Utilities

– Chapter 16: Mobile Homes

– Chapter 17: Condominium Control

– Chapter 18: Tenants and Foreclosure

2

58

What is Rent

• Rent is the amount a tenant agrees to pay inexchange for a landlord’s promise to provide adecent place to live

• In private market - no legal limit on theamount of rent the landlord can ask for

• In public and subsidized housing or mobilehome parks covered by local rent control -limits on the amount that the landlord mayask for

3

Before You Move In

• What can a landlord charge before a tenant moves in?– First and last month’s rent– A new lock and key– Security deposit

• Who pays for gas, electricity, hot water and heat?– Tenant pays if written agreement– Unit must be separately metered for gas and electricity

• What fees are illegal?– Holding deposits, rental fees, pet fees, application fees, cleaning

fees are illegal– Rental agent can charge finders fee if licensed real estate broker

4

59

How Much Is First, Last, and Security

• At the beginning of the tenancy the landlordcan only charge:

– First month’s rent: actual rent

– Last month’s rent: no more than 1st month’s rents

– Security Deposit: no more than 1st month’s rent

5

Protect Yourself

• Get receipt for any money you pay the landlord.Use Rent Receipt Form 2 (Legal Tactics, p. 631)

• Whether agreement is in writing or oral makesure it is clear:– How much is the rent?– When is rent due?– For how long the tenancy is.– Who pays for gas, electric, garbage removal, water &

sewage?

• Use Form 1: Moving In Checklist(https://www.masslegalhelp.org/legal-tactics)

6

60

Are Discounts Clauses Legal

Discounts for substandard housing conditions orillegal terms in the lease are illegal.

– Your landlord cannot “discount” your rent toaccount for unsafe or unsanitary conditions in yourhome.

– Your landlord cannot say your rent is “discounted”if you pay on time. This is an illegal late fee indisguise.

7

Security Deposit

• To legally collect and keep a security deposit, your landlordmust:– Give you a Statement of Conditions when you move in.– Keep your security deposit in a separate bank account.– Give you a written receipt, stating where the account is held,

and an annual statement of interest owed on deposit.– Pay you interest on the security deposit once a year.– Return the security deposit if they fail to comply with law.– After you move out, your landlord can use the security deposit

for limited purposes, and must return balance within 30 days

• If your landlord violates certain parts of the securitydeposit law, they can be ordered to pay you 3 times thedeposit as damages.

8

61

Last Month’s Rent

• Landlord does not have to keep last month’srent in a separate bank account.

• Landlord must pay interest on last month’srent once a year.

9

Late Payment

• Landlord cannot charge late fee unless lease orwritten agreement allows. If no lease or writtenagreement you do not have to pay a late fee.

• Late fees are only legal if rent is more than 30days late. Illegal to collect late fee before rent ismore than 30 days late.

• “Cure” rights exist to avoid eviction. Differentdeadlines for tenants with leases and without.

• Landlord can file an action for repeated latepayment as a lease violation in a cause eviction.

10

62

Rent Increase

• Landlord cannot increase your rent unless youboth agree.

• Landlord cannot increase rent without propernotice.

• Landlord cannot increase rent during leaseperiod unless there is a tax escalator clause.

11

Illegal Increases

It is illegal for a landlord to increase rent inretaliation for a tenant:

– Reporting bad conditions to the landlord or ahousing inspector.

– Joining or organizing a tenant group.

– Filing a lawsuit against the landlord or defendingoneself in an eviction.

12

63

Options - Rent Increase

• Refuse & Stay: Note this could result in aneviction (no-cause).

• Pay & Stay: Landlord can offer a new rentamount and you may agree to it.

• Negotiate: You can make a counter offer.• Refuse & Move: If you decline rent increase:

– You are still obligated to pay the current rent.– If you do not have a lease, the landlord may evict you

through a no-cause eviction.– If you have a lease, the landlord may refuse to extend

your lease after its expiration.

13

Utilities

Unless you sign an agreement that says you pay,the landlord must pay for:

– Hot Water & Heat

– Gas & Electricity: Must be a separate meter foryour unit.

– Water: Must be a separate meter for your unitand the landlord has a certificate showing thatthere are low-flow fixtures.

14

64

Important

• When you pay, make sure you get a receipt.

• Pay in a way that leaves a paper trail.

• Write on each check who is paying whom,when, and for what.

15

65

66

MASS. LAW REFORM INSTITUTE AND MASS. CONTINUING LEGAL EDUCATION

BASIC BENEFITS TRAINING


Evaluation

Faculty: Annette Duke, Mass. Law Reform Maureen St. Cyr, Community Legal AidDavid Brown,Community Legal Aid Jan Kendrick, South Coastal Counties Legal Services Hed Ehrlich, Justice Center of SE MA Patricia Whiting, Harvard Legal Aid Bureau

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Documents

Tenants’ Rights in Massachusetts - MassLegalServices - BBT... · 1 Welcome Purpose of the Training – Provide you with a better understanding of tenants' rights in Massachusetts