When you arrive at work on Monday, October 19, 2020, the Massachusetts eviction moratorium will have expired and (with certain limitations), you will be within your rights to serve notices to quit again and request that our office process your court eviction filings.  The following items are important matters that we want you to be aware of as you transition back to some semblance of “business as usual”:

• If your property is financed with a “Federally-Backed Mortgage,” the first notice to quit for nonpayment of rent that you serve on any given resident must be a 30-day, rather than the standard 14-day notice.  This requirement also applies to any of your tenants (or units) that have a Section 8 subsidy, or any other type of federal government subsidy.  In contrast, if you had already served a notice to quit for nonpayment on a resident, but no case was filed due to the shutdown/moratorium, and your property is not financed with a “Federally-Backed Mortgage,” we can still utilize that prior notice to quit by serving an eviction summons so long as the resident’s balance was never satisfied over the last seven (7) months.    

• If your property is located in Cambridge, you are subject to the “Tenants’ Rights and Resources Notification” Ordinance (the “Cambridge Ordinance”) which requires that you provide tenants with “notice of basic housing rights and resources, including a list of organizations available to assist tenants . . . .” whenever you serve tenants with a notice to quit or notice of nonrenewal or notice of lease expiration.  Cambridge’s form of that notice is available at the following link which you must attach to any notice to quit or notice of nonrenewal or notice of lease expiration: https://www.cambridgema.gov/-/media/Files/citymanagersoffice/tenantrights/cambridgetenantrightsandresourcesnotificationordinanceinformationpacketfinalrev.pdf . This notice must also be provided to new residents when you sign a lease with them. 

• If your property is located in Somerville, you are subject to the “Housing Stability Notification Act” which requires that you provide tenants with the same type of notice that is required by the Cambridge Ordinance.  Somerville’s form of that notice is available at the following link which you must attach to any notice to quit or notice of nonrenewal or notice of lease expiration: https://www.somervillema.gov/sites/default/files/OHS_HSNALLRequiredDocs_LLOPEZEDITED.pdf .  Unlike Cambridge, you do not need to provide this to tenants at the beginning of their tenancies.     

• If your property is located in Boston, you are likely to soon be subject to requirements similar to the Cambridge Ordinance as its own “Housing Stability Notification Act” is pending before the Boston City Council, but has not yet passed.  We will let you know if that passes and, if so, what it requires of you. 

• If you received a completed “CDC Declaration” [https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf] from a resident and you need us to proceed against such resident for nonpayment of rent, please send us the Declaration so we can determine what limitations, if any, you may be subject to.   

• If you received funds from the government or any agency for a portion of your resident’s rental arrearage and you still need us to proceed with an eviction case based on a remaining balance owed by such resident, please send us copies of all documents you received from (and/or signed with) such agency as there may be limitations or special requirements that you agreed to upon receiving said funds.  In most cases, you will be required to sign some documents before you receive government aid for tenants.  Before signing any documents, we would advise that you let us review those documents first.

• For cases that had court dates scheduled but which never occurred due to the shutdown and/or the moratorium, you do not need to do anything at this time because those cases will automatically be rescheduled and we will reach out to you when that occurs to obtain updated ledgers.  

• For cases where we already have residents under Court agreements that they are behind on, simply send us their ledgers and we will file a motion to obtain a hearing.

• Because there is expected to be an avalanche of cases filed early on, the courts will take the matters in the order of their filing.  As such, we would advise filing early to avoid longer wait times due to the expected volume of cases to be filed.

We know you will have many questions about a variety of different issues concerning the status of the eviction process and cases that we are handling for you.  Please do not hesitate to contact any member of our team with such questions as we travel through this unchartered territory together.  Lastly, your company may have made an internal decision to restrict itself from taking steps in the eviction process in a manner that is more restrictive than what the CDC Moratorium mandates, so please confirm with your upper management if it is “self-imposing” any such additional restrictions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Krems, Jackowitz & Carman, LLP

141 Tremont Street, Boston, MA 02111

Telephone: (617) 556-0244 SCarman@kjcllp.com; www.kjcllp.com

On September 1, 2020, the Centers for Disease Control and Prevention announced a new nationwide federal moratorium on residential evictions for nonpayment of rent, effective September 4, 2020, through December 31, 2020 (the “federal moratorium”). 

At present, the federal moratorium is inapplicable to your management of your property.  This is because the federal moratorium does not apply in states like Massachusetts that have existing moratoriums in place which provide residential tenants with the same or greater level of public health protection from eviction.  The Massachusetts moratorium provides residential tenants with greater public health protection than the federal moratorium by, for example, prohibiting every type of eviction case except ones that involve conduct that impacts the “health or safety” of others.  Thus, the federal moratorium will not immediately apply in Massachusetts when it takes effect on September 4, 2020. 

However, if Governor Baker does not extend the Massachusetts moratorium and it expires on October 17, 2020 and the Massachusetts legislature does not pass a new moratorium law, then the federal moratorium will apply here in Massachusetts.  We have thoroughly reviewed the federal moratorium and determined that, if it takes effect in Massachusetts, this is what you need to know:

• It only protects residential tenants so you can evict commercial tenants for any reason.

• It only applies to residential nonpayment of rent cases and, thus, it will not prevent you from proceeding on any cause cases or no fault cases (terminations of tenancies at will or expired leases and tenants hold over).

• It only protects residential tenants from nonpayment of rent evictions if – and only if – the tenant provides you with an affidavit attesting to all of the following under penalty of perjury:

  • the tenant is unable to pay the full rent owed due to a COVID-19 related financial hardship (i.e., unemployment and/or decrease in hours/wages);

  • the tenant qualified for a CARES Act stimulus check or does not “expect” to earn more than $99,000.00 in 2020 (or more than $198,000.00 if filing jointly) or had no obligation to report any income in 2019;

  • the tenant has used “best efforts” to obtain all available government rent/housing assistance; and

  • the tenant is likely to become homeless (i.e., on the street and not moving in with a friend or family member) if evicted.

• Unless and until that information is provided, the tenant does not have any protection under the federal moratorium.

• It does not prohibit you from doing anything other than physically removing a tenant from a residential property for nonpayment of rent by levying on an execution that we obtained in a nonpayment of rent case.

• Therefore, the federal moratorium does not prohibit any of the other steps in eviction cases in Massachusetts: i.e., serving notices to quit, filing and serving summary process summonses and complaints, reaching agreements for judgments in Court with tenants, otherwise obtaining judgments for possession and requesting that the Court schedule hearings when tenants violate agreements.  To reiterate, it only prohibits you from levying on an execution to move out a residential tenant for nonpayment, but only if the residential tenant had submitted a written declaration in compliance with the above. 

This is just a summary of the major provisions of the federal moratorium to help you navigate it if it takes effect in Massachusetts.  If the federal moratorium takes effect, you should discuss your case with us to ensure a successful result.  The applicability of, not only the federal moratorium, but also the Massachusetts moratorium depends entirely on the facts and circumstances of your case.  Thus, please do not hesitate to contact our firm to discuss any questions or concerns that you have. 

As always, please feel free to call or email any member of the Krems, Jackowitz & Carman, LLP Real Estate Management Team with any questions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Krems, Jackowitz & Carman, LLP

141 Tremont Street, Boston, MA 02111

Telephone: (617) 556-0244 KKrems@kjcllp.com; www.kjcllp.com

KJC’s Scott D. Carman and Nicholas F. Feloney previously obtained a dismissal of a plaintiff’s complaint in the Land Court and, on the plaintiff’s appeal, recently persuaded the Appeals Court to affirm that decision. 

KJC’s client, a housing provider-participant in the federal government’s low income housing tax credit program (the “LIHTCP”), was sued in the Land Court by a former tenant for alleged noncompliance with the LIHTCP’s rules.  Attorney Carman and Attorney Feloney defended the case by filing a motion to dismiss the complaint in the Land Court for failure to state a claim for relief, arguing that the plaintiff lacked standing and, in the alternative, that her claims were barred by the doctrine of res judicata due to certain counterclaims the former tenant had previously asserted in an eviction action. 

The Land Court agreed with Attorney Carman and Attorney Feloney on both grounds, dismissing the complaint against KJC’s client with prejudice.  The Land Court found that the plaintiff did not have a private right of action to enforce the provisions of federal tax law under the LIHTCP or under the recorded restrictive deed covenant.   Additionally, the Land Court held that since the same parties had previously litigated the same claims in a prior Eastern Housing Court Case where KJC had successfully evicted the plaintiff for nonpayment of rent and failure to recertify her income, those issues could not be re-litigated.   

The plaintiff then appealed the Land Court’s dismissal of her complaint, arguing in large part that the Land Court had erred by failing to review the Eastern Housing Court’s prior findings of fact and conclusions of law in the adverse summary process eviction case entered against her.  On brief, Attorney Feloney made it clear to the Appeals Court that the plaintiff lacked standing under the federal law provisions of the LIHTCP as well as the recorded deed covenant, and that there was no question that the plaintiff’s complaint was barred by the age-old rule that no claims which “arise out of the same transaction or occurrence” may be re-litigated by the same parties where judgment has been previously entered on the merits in a prior case.  The Appeals Court agreed with both arguments and affirmed the Land Court’s dismissal of the plaintiff’s complaint. 

KJC is a Prominent Boston law firm that can help you with all of your real estate related legal matters.  Please do not hesitate to contact our legal team to get started on your case. 

On April 20, 2020, Governor Baker signed an eviction moratorium into law (the “Moratorium”).  Among the several provisions of the Moratorium was a prohibition on sending notices to quit to tenants. Despite this prohibition on notices to quit, we encouraged you to continue sending past due rent notices to your tenants that are behind on their payments of rent (“Past Due Notices”). 

On Friday, April 24, 2020, the Executive Office of Housing and Economic Development issued “COVID-19 Emergency Regulations” which, among other things, impose an obligation to include certain disclosures on Past Due Notices.  Most importantly, the Regulations require landlords including management companies to include the following disclosures on any Past Due Notices that are sent to tenants: 

THIS IS NOT A NOTICE TO QUIT.  YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.  An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.  The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord.

For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center.  For a list of agencies, see https://www.masshousinginfo.org/regional-agencies.  Additional information about resources for tenants is available at https://www.mhp.net/news/2020/resources-for-tenants-during-covid-19-pandemic.

You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19.  If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources.  If you cannot access the form on this website, you can ask your landlord to provide the form to you.  You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.

The Regulations require this language to be located “prominently” on the first page of the notice. Therefore, be sure that you do not use small print for this language and do not put it on the second page or rear side of any of your Past Due Notices.  There is no requirement that this language be the first thing contained on your Past Due Notices.   

The Regulations also provide certain opportunities for a landlord to utilize a tenant’s last month’s rent to satisfy rental arrearages.  If you want to explore the ability to use a tenant’s last month’s rent, please contact us and we will advise you if you are eligible to do so.

Finally, the Courts extended the date of their physical closures to June 1, 2020.  That said, the Courts are always available to address any emergency matters.  To that end, please contact us if you believe you are confronted with an emergency situation and we will utilize the Courts to the extent permitted. 

As always, please feel free to call or email any member of the Krems, Jackowitz & Carman, LLP Real Estate Management Team with any questions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Krems, Jackowitz & Carman, LLP

141 Tremont Street, Boston, MA 02111

Telephone: (617) 556-0244

KKrems@kjcllp.com

www.kjcllp.com

On April 20, 2020, Governor Baker signed into law “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.”  The moratorium prohibits all “non-essential evictions” effective immediately and until August 20, 2020 or 45 days after the COVID-19 emergency ends, whichever is sooner.  A “non-essential eviction” is defined as an eviction:

(i) for non-payment of rent; (ii) resulting from a foreclosure; (iii) for no fault or no cause; or (iv) for cause that does not involve or include allegations of: (a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or (b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public…

In summary, all steps in the eviction process for cases that involve nonpayment of rent, terminations of tenancies at will, and “cause” cases that do not pose health or safety risks to others are prohibited by the moratorium.  This includes a prohibition on each of the following steps:

·      Sending or serving a Notice to Quit;

·      Sending or serving a Notice Terminating a Tenancy at Will;

·      Sending any type of notice to a tenant demanding that they vacate their apartment;

·      Serving a summary process summons and complaint;

·      Filing a summary process summons and complaint with the Court;

·      Issuance of a judgment (whether by agreement or by default) by the Court;

·      Issuance of an execution for possession by the Court; and

·      Levying on an execution to obtain possession of the apartment.   

If an eviction matter involves conduct by a tenant, their household members or their guests that may impact the health and safety of others, you are not prohibited from taking these steps.  In addition, you are not prohibited from sending your customary past due rent notices so long as such notices do not contain any notice to quit language or any other language demanding that the tenants vacate their apartments.  If you are unsure of your past due notices, please contact us and we will review them to confirm that they do not violate the moratorium.   

Under certain circumstances, the moratorium permits evictions for commercial tenancies.  If you wish to proceed against a commercial tenant, please contact us so we can determine if you are eligible to do so.   

Due to a virtual halt in all steps of the eviction process, we encourage you to communicate with your tenants that are in default in an effort to arrive at voluntary payment agreements until the Courts reopen.  When you reach such agreements, please contact us and we will assist you in memorializing the agreements in a manner that does not impact your legal rights and remedies.   

Landlords are also prohibited from charging late fees for nonpayment of rent or reporting nonpayment of rent to consumer credit agencies during the pandemic, but only if the tenant provides notice and documentation to the landlord within 30 days after the missed rent payment showing that the nonpayment was due to a financial impact from COVID-19. 

Finally, the moratorium expressly provides that tenants remain obligated to pay rent and preserves a landlord’s right to recover rent when the moratorium expires. 

As always, please feel free to call or email any member of the Krems, Jackowitz & Carman, LLP Real Estate Management Team with any questions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Krems, Jackowitz & Carman, LLP

141 Tremont Street, Boston, MA 02111

Telephone: (617) 556-0244

KKrems@kjcllp.com

www.kjcllp.com

We know that many of your residents are (or will soon be) suffering financial hardship which will impair their ability to pay their monthly rent to you.  The good news is that financial resources may be available to them depending upon their individual financial circumstances.  The City of Boston has made $3 million available for rental assistance and Metro Housing is still accepting and processing RAFT applications.  These are some of the resources that residents of Boston and other communities can explore:

https://www.boston.gov/departments/neighborhood-development/office-housing-stability/rental-relief-fund

https://www.waitlistcheck.com/MA2977-1914  

https://www.homestart.org/

https://unitedwaymassbay.org/covid-19/covid-19-family-fund/

http://cambridgecf.org/COVID-19-emergency-fund

https://www.auntbertha.com/housing/help-pay-for-housing--cambridge-ma?postal=02139

Email to: MMcCormick@CambridgeMA.gov; Cambridge Mayor’s Disaster Fund

Attorney Alex Mitchell-Munevar of Greater Boston Legal Services has advised us that he would like to assist residents in determining whether they are eligible for these (and other) resources and, if so, to assist them in gathering documentation to complete the requisite applications.  For residents that have informed you of their financial hardship or for residents of which you are aware of their financial hardship, please consider referring them to Alex if you are willing to enter into a payment plan with them where their tenancy would be preserved.  Alex’s email address is amunevar@gbls.org and his telephone number is (617) 603-1568.  If a resident secures financial assistance and is ready to enter into a specific payment plan, we would participate in those communications and assist in the memorialization of a written agreement.

As always, please feel free to call or email any member of the Krems, Jackowitz & Carman, LLP Real Estate Management Team with any questions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Massachusetts lawmakers will soon vote on two pending COVID-19 residential eviction bills, which both seek to establish temporary protections for renters but will effect residential landlords in very different ways. 

On March 13, 2020, in the House, “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency” (the “House Bill”), seeks to temporarily prohibit all residential evictions, without exception, during the pendency of the COVID-19 emergency.  See HD 4935. 

If passed, the House Bill will prohibit state courts from accepting any filing that seeks possession of a residential dwelling or entering any order allowing for possession of a residential dwelling, while also requiring state courts to grant all applications for stays of execution or continuances of summary process cases.  The House Bill will further prohibit all enforcement of any execution for possession in such cases, imposing a fine of $5,000.00 or 6 months imprisonment for violations, and tolls all limitation periods applicable to summary process cases. 

The House Bill was referred to the Joint Committee on Housing on March 30, 2020 for public hearing and a future vote. 

On March 31, 2020, the Senate Ways and Means Committee approved, “An Act providing temporary protections for renters and homeowners during the COVID-19 emergency” (the “Senate Bill”), which offers similar protections but in a much more comprehensive fashion than the House Bill.  See SB 2621.

Unlike the House Bill’s sweeping prohibition against all residential evictions, without exception, the Senate Bill, if passed, will only prohibit a “non-essential eviction action,” defined as a residential eviction: (1) for nonpayment of rent due to a financial impact from COVID-19; (2) resulting from a foreclosure; or (3) for cause that does not involve or include allegations of criminal activity or allegations of lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.

The Senate Bill will prohibit state courts in any “non-essential eviction action” from entering a default judgment for possession of a residential dwelling or scheduling a court event until the sooner of 90 days after the passage of the Senate Bill or the termination of the COVID-19 emergency (the “termination date”), and require all applicable limitation periods, including the deadline to levy upon an execution, to be tolled until the termination date.  The Senate Bill will also prohibit a residential landlord from charging late fees for nonpayment of rent or reporting nonpayment of rent to consumer credit agencies through the termination date, but only if the tenant provides notice and documentation to the landlord within 30 days after the missed rent payment showing that the nonpayment was due to a financial impact from COVID-19. 

Notably, the Senate Bill expressly provides that a tenant remains obligated to pay rent and preserves a landlord’s ability to recover unpaid rent.  The Senate Bill will not prohibit a landlord from filing or serving papers seeking possession of a residential dwelling. 

KJC is a prominent Boston-based law firm that can help you with all of your real estate related legal matters.  Please do not hesitate to contact us for a consultation.

In a Northeast Housing Court case, Attorney Scott D. Carman, a Partner at KJC, recently persuaded the Court to, not only deny a motion for partial summary judgment on all counts, but also hold as a matter of law that a residential landlord’s failure to obtain a certificate of occupancy does not affect the legality of an underlying lease agreement, does not void any resulting tenancy, and is an issue for a municipality – and not a tenant – to prosecute pursuant to M.G.L. c. 40 § 21D. 

KJC’s client, a residential landlord, filed a summary process eviction action against two tenants for nonpayment of rent.  The tenants had not paid any rent in ten (10) months and owed KJC’s client over $10,000.00. 

The tenants asserted counterclaims and affirmative defenses to the landlord’s complaint.  The tenants later moved for entry of summary judgment on their counterclaims and affirmative defenses, including their affirmative defense that the undisputed lack of a certificate of occupancy for the property rendered the lease “void” for illegality and precluded the landlord from enforcing its claim against them for nonpayment of rent and, in turn, excused the tenants from any obligation to pay rent.  The tenants further posited that such lack of a certificate of occupancy entitled them to a refund of all rent that they had previously paid.  Generally, a contract for an illegal purpose (e.g., sale of illegal narcotics) is void and unenforceable as a matter of public policy. 

Attorney Carman appeared on behalf of the landlord and urged the Court to deny the tenants’ motion for partial summary judgment on all counts.  In addressing the tenants’ claim that the lease was “void” for illegality, Attorney Carman argued that the property was at all times relevant maintained in a habitable condition, not in violation of the State Sanitary Code and was eligible for a certificate of occupancy, but the landlord had failed to secure same merely due to administrative oversight.  Attorney Carman argued that “the mere failure to obtain a piece of paper from a municipality does not void a residential lease and provide a tenant with a windfall by allowing him/her to enjoy the benefit of living somewhere without the attendant obligation to compensate the landlord.”  Unlike a contract to commit an illegal act, the lease between the tenants and KJC’s client was for a perfectly legal purpose—to rent a residential apartment.  Moreover, the tenants failed to cite any legal authority to support their argument that the lease was “void” for illegality due to an alleged violation of a municipal ordinance. 

The Court agreed with Attorney Carman and denied the tenants’ motion for partial summary judgment on all counts.  Notably, with respect to the tenants’ claim that the lease was “void” for illegality, the Court went a step further by holding as a matter of law that the landlord’s failure to obtain a certificate of occupancy did not affect the legality of the underlying lease agreement, did not void the resulting tenancy, and was a matter for the municipality – and not the tenants – to prosecute pursuant to M.G.L. c. 40 § 21D.  As such, KJC’s claim for nonpayment of rent was preserved for trial.

KJC is a prominent Boston-based law firm that can help you with all of your real estate related legal matters.  Please do not hesitate to contact us for a consultation.    

KJC recently obtained a dismissal of a $9,000.00 citation issued to its client by ISD for alleged violations of the City of Boston’s Short-Term Rental Ordinance (the “Ordinance”). Attorney Nicholas F. Feloney, an Associate at KJC, successfully argued that ISD’s notices of violation were insufficient process and that the owner of the property was not liable for the $9,000.00 citation because it did not “offer” any of its units for short-term rental as required by the Ordinance’s penalty provision.

The Ordinance prohibits any person from “offering” an ineligible residential unit in the City of Boston for “short-term rental,” which is defined as a period of less than twenty-eight consecutive calendar days.  To be eligible for short-term rental use under the Ordinance, a residential unit must meet certain qualifications and complete a registration process with ISD.  The Ordinance provides certain exemptions for lodging houses, bed and breakfasts, and units offered for hospital or corporate stays. 

KJC’s client, the owner of a high-rise residential building in Boston, leased approximately thirty units to two corporate entities for 12-month terms.  The corporate entities in turn sublet the units.  The owner’s lease agreements with the entities prohibited them from offering or subletting the units for short-term rental, which the lease defined as a period of less than thirty-one consecutive calendar days.   

ISD, which is in charge of enforcing the Ordinance, later found units in the owner’s building listed for short-term rental on websites like flipkey.com.  Over the course of several months, ISD issued notices of violation to the owner that cited the following penalty provision under the Ordinance:

Any person who offers a unit as a Short-Term Rental, or any Booking Agent who accepts a fee for booking a unit as a Short-Term Rental, where such unit is not an eligible Residential Unit, shall be fined three hundred dollars ($300) per violation per day… 

See City of Boston Code, Ordinances, Chapter IX, Section 9-14.9 (emphasis added).  There were several issues with ISD’s notices, however.  Some of ISD’s notices were sent to a wrong address for the owner and none of ISD’s notices specifically identified what units in the owner’s building had been offered for short-term rental on the websites. 

The owner, which only leases its units for 3 to 12-month terms, had not offered any of its units for short-term rental on the websites or otherwise.  Despite the issues with ISD’s notices of violation, the owner, acting on its own initiative, determined that the corporate entities were responsible for the online listings that ISD had found.  Notably, the owner took immediate action to enforce the terms of its lease agreements with the entities by sending them cease and desist letters, advising them that they were in violation of the lease provision prohibiting short-term rental use of the units and demanding that they remove the online listings.   

Attorney Feloney appeared on behalf of the owner at an ISD hearing to appeal the $9,000.00 citation.  Attorney Feloney, in consultation with the Real Estate Management Team at KJC, argued that ISD’s notices of violation were insufficient process based upon the fact that some were sent to a wrong address for the owner and none specifically identified the units offered. Additionally, Attorney Feloney argued that the owner had not “offered” any of its units for short-term rental as required by the Ordinance’s penalty provision that ISD cited in support of its $9,000.00 citation.  ISD alleged that the owner had offered its units for short-term rental in violation of this provision based upon the online listings it had found.  However, the evidence showed that it was the corporate entities – and not the owner – that had offered the units for short-term rental.  There was no evidence that the owner permitted the corporate entities to offer the units for short-term rental based upon the terms of the lease agreement which specifically prohibited such use of the units.  Moreover, the owner took immediate action to enforce the lease against the corporate entities by sending them cease and desist letters.  Accordingly, the owner was not liable for the $9,000.00 citation because there was no evidence that the owner had offered, or permitted to be offered, any of its units for short-term rental in violation of the Ordinance.    

For all of these reasons, ISD agreed that the owner was not liable for a violation of the Ordinance and it dismissed the $9,000.00 citation. 

There are two key takeaways from this case.  First, every residential landlord in the City of Boston should have in its lease agreement an express provision prohibiting the tenant from offering the unit for short-term rental, as that term is defined under the Ordinance.  Second, upon notice that the tenant has offered the unit for short-term rental, the landlord must take immediate action to enforce the terms of the lease against the tenant. 

KJC is a prominent Boston-based law firm that can help you with all of your real estate related legal matters.  Please do not hesitate to contact us for a consultation.

In an October, 2017 decision by the Supreme Judicial Court of Massachusetts, in the case of Scott Phillips v. Equity Residential Management, L.L.C., the Court provided clarification as to which violations will trigger treble damages under the Act.

Read the full article.

On July 31, 2017, Attorney Ken Krems in the Massachusetts Lawyers Weekly front page article, “Tax foreclosure doesn’t change tenant-at-will status.”

Read the full article.

On April 24, 2017, Attorney Ken Krems was featured on the front page of Massachusetts Lawyers Weekly, in its article “Landlord-tenant bar busy tackling ‘legal pot’ issue.” Attorney Krems, a leader in the field of real estate law who represents more than 20 companies managing approximately 15,000 apartments in Massachusetts, was interviewed by the news publication regarding the legal implications facing property managers following Massachusetts’ legalization of marijuana.

Read the full article.

Congratulations to Attorney Scott Carman who was recently elected Chairman of the City of Medford's Zoning Board of Appeals. Scott is in the first year of his three year term since joining the Board of Appeals in April 2016.

Now that the ballot question on recreational marijuana has been approved, the question for landlords is what can they do about this and what rights do they have.

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Shaevel & Krems, LLP is pleased to announce that Attorney Ken Krems has been selected as a 2016 New England "Super Lawyer" in the field of Real Estate. 

Each year, Super Lawyers magazine names attorneys across the country from more than 70 practice areas who have a high level of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. 

If you would like more information about Super Lawyers, please visit the Super Lawyers website. 

In their Summer 2016 issue, Baystate Apartment Owner published Attorney Krems' article "Domestic Violence: Rights and Responsibilities of Landlords & Victims."

Read the full article.

In their June 2016 issue, the Real Estate Bar Association newsletter published Attorney Krems' article "Criminal history screening procedures focus of newly issued HUD guidance." 

Read the full article.

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On April 4, 2016, HUD issued guidance regarding landlords' ability to deny applicants based upon criminal history. 
Read the Full Article