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Renting

Landlords must clear snow and ice after a snowstorm or risk legal liability

By | landlord tenant, massachusetts tenant rights, Renting | No Comments


Property owners must clear the sidewalks and common areas after a snow stormI was walking down Columbus Avenue in Boston’s South End neighborhood Sunday after enjoying a wonderful Jazz Brunch at Darryl’s Corner Bar & Kitchen.   It had snowed the previous morning leaving some sidewalks clear of snow and ice, while others had a layer of ice that made walking hazardous.

Sure enough, as my brunch crew was walking, my friend Sam nearly took a really bad spill. His knee twisted and he, luckily, caught himself before sustaining a more serious injury.

This incident made me think: Does a property owner owe their tenants and public pedestrians any duty to clear snow and ice in Massachusetts? And If so how soon during or after the snowstorm should the snow be cleared?

The answer is yes! The Massachusetts Supreme Judicial Court in Papadopoulos v. Target, 457 Mass. 368 (July 26, 2010) ruled that property owners ARE liable if an injury results due to their failure to remove snow and ice.

Further, landlords MUST keep the common areas and sidewalks free of ice and snow accumulation pursuant to the Massachusetts State Sanitary Code regulation 410.452.  UNLESS they have a written agreement with the tenant, for the tenant to keep the area clear of snow and ice.

For tenants, a landlord’s failure to clear snow and ice would constitute a breach of warranty of habitability. Depending on the duration of the neglect, it could rise to a breach of quiet enjoyment. Damages for breach of quiet enjoyment are three times one month’s rent plus attorney fees.

For pedestrians who may be walking across someone’s property and fall, the property owner will be liable if the property owner failed to:

“. . . act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk” Papadopoulos v. Target Corp., 457 Mass. at 383 (quoting Young v. Garwacki, 380 Mass. 162, 169 (1980)).

In plain English, that means: if there are ice and snow on a person’s sidewalk well after a snowstorm and a pedestrian injures herself on it, the property owner is liable.   While the court was silent on the property owner’s duty to remove snow and ice during a snowstorm, property owners are well advised to remove snow as it accumulates rather than risk legal liability.

If you are a tenant and your landlord is not removing snow and ice, get in contact today.

If you’re a pedestrian and you have slipped on ice, get in contact to discuss your injury.


Massachusetts Law About Apartment Heat: A Tenant’s Guide

By | Consumer Protection, massachusetts tenant rights, Renting | No Comments

 

NOTE: When I originally made this video, my office was located at 45 Prospect St. in Cambridge.  I have moved to 22 Boston Wharf Road Boston MA 02210 (Seaport District).  While my location has changed, the offer to come by and have coffee and discuss your issue still stands.  

If you need help with your apartment heat, please get in touch now

As a Tenant, you have a Right to Heat

As anyone who has experienced a New England winter can tell you, adequately heating your apartment is a necessity in Massachusetts. Every landlord must pay for heating its apartment if there is no written agreement between the landlord and the tenant stating otherwise.  If the owner is not paying for heat: the landlord is violating the Massachusetts- Consumer Protection law and possibly breaching the tenant’s right to quiet enjoyment of the apartment.From 16th of September through 14th of June, each room must be heated to at least 68 degrees between 7am, and 11pm

If you are a tenant facing problems with your heat, the time to act is now. By taking the necessary precautions, you can ensure that your issue will be resolved as soon as possible.

Chapter II of the State Sanitary Code is the basis for Landlord accountability. From 16th of September through 14th of June, each room must be heated to at least 68 degrees between 7 am, and 11 pm. At night the minimum temperature is 64 degrees. Unless otherwise stated and agreed upon under lease, the landlord is responsible for supplying the heat.

Under the State Sanitary Code, the tenant’s agreement to pay for utilities must be included in the written lease, and the utilities must be separately metered, not only for each unit but also separately from the common area utilities

For Example, you sign a lease with your landlord. It does not mention who pays for electric or heat. The owner must pay for power and heat.

If the heat goes off, a landlord must be notified of their responsibility to take action. If The severity are unresponsive and the problem remains neglected, your local code enforcement agency should inspect the premises. It is fundamental to begin a written record of landlord negligence as soon as you notice a problem developing.

For example, let’s say you are watching a movie with your family on a cold December night. The living room becomes colder and colder. After feeling the heating vents, you realize that there is no heat coming from them.   What should you do?

  • Call the landlord and inform them of the issue.
  • Write the landlord an email or letter stating what the problem is.

Report it the lack of heat to the board of health and put your complaints to the landlord in writing

Make Sure to Communicate with your Landlord in Writing

You need to have a written record. If the landlord does not provide a response, you will need a WRITTEN record that you gave notice to the landlord of the problem. Verbal notice is not enough; it MUST BE IN WRITING.

Have the Board of Health Do an Inspection

Every Massachusetts community has a Board of Health or Inspectional Services Department. It is in your best interest to schedule this inspection from the appropriate department within 24 hours as required by the state sanitary code. The inspector will take a temperature reading and leave you a copy of the inspection report. If a violation is found, a written order should be sent to you and your landlord via the postal service. It is possible to contact local police to take a temperature reading at night or on weekends when Enforcement Departments are closed.

You may be able to withhold rent

The case becomes eligible for rent withholding if your problem extends beyond an isolated heat outage. Chronic issue warrants involvement of legal counsel should you choose to defend yourself. Creating personal and public record of temperature issues is essential for litigious resolution. Call local enforcement and track complaints, as these prove your claim in court. If your testimony is required in court, it is prudent to be as accurate as possible with your personal temperature log.

Readings should record the date, time, and location of each measurement five feet up from the floor and five in from any outside wall. A permanently placed thermometer is ideal. Essentially, failure to provide adequate heat is a “breach of warranty of habitability.” By law, you are allowed to take deductions from your rent. You are protected against eviction only if you follow the rules:

You inform your landlord in writing that you are deducting rent due to the failure to provide heat on or before your rent is due.

You must be able to show the nature and extent of the lack of heat through record keeping.Make sure to keep a written record of what the temperature was and on what date. Take pictures as part of that record

Oral communication is insufficient, whereas maintained written records show a conscientious effort to abide by your rights under the law. This letter should be sent well before the rent is due, and should be dated and filed along with your other records.


If you choose to withhold rent, the money should be set aside. You are entitled to a reduction of rent, called an “abatement,” for time spent without adequate heat. The settlement with the landlord over back rent will negotiate this reduction. Once the condition has been corrected, rent is expected to continue as originally agreed upon. There is no exact rule for determining an abatement, besides the general estimate that an apartment without heat is worth one-fourth to one-half its normal value. The severity of the cold should correspond with your withholding percentage.

Proper procedure will provide protection if the landlord brings eviction proceedings against you. Depending on the strength of your case, a lawyer often chooses to represent you on a “contingency fee.” The attorney’s fee in this insistence will come out of money awarded from the landlord. The court may offer to awards attorney’s fees in some circumstance. Damages can be collected from the owner if they try to evict, or raise rent within six months of a reported code violation to enforcement agencies. You are often entitled to both damages and attorney’s fees. Lastly, remember that it is illegal for the landlord to shut off utilities or lock you out of the apartment. Knowing your rights and the proper way to protect yourself will see you through this issue. Please contact Doubledaw Law should you have any questions about landlord-tenant law in Massachusetts.


A Mistake, But Not Discrimination

By | Renting | No Comments

 

Any reasonably well-informed Massachusetts landlord knows that the law forbids discrimination in the rental of a residential unit based on the prospective tenant’s race, national origin, religion, disability, age, sexual orientation, or gender identity. A person who believes he or she has been the victim of unlawful housing discrimination may file a complaint with the Massachusetts Commission Against Discrimination. Although many complaints are resolved informally, the Commission does have authority to hold public hearings in which each side is allowed to tell its story under oath. The Commission may then issue an administrative order based on its findings.

Claims of housing discrimination against couples with young children are not unusual. A recent Commission case arose out of just such a complaint by a couple against a landlord’s rental agent. The couple claimed that the agent refused to rent an apartment to them once he saw that the wife was pregnant. The agent explained that the unit probably contained lead-based paint, plaster or dust. He told the couple that Massachusetts law prohibits leasing of a lead-contaminated property to a family with young children.

The Commission’s opinion points out that if the agent’s understanding was correct, landlords could defer indefinitely correcting lead paint hazards by simply rejecting applicants with (or who are expecting) children. Indeed, said the Commission, the Massachusetts Lead-Based Paint Law closes this very loophole. It thereby effectively forces landlords to identify and eliminate any lead poisoning hazards before putting a rental property on the market.

Although the Commission found that the agent’s error was an honest mistake, it nevertheless issued an order directing him to stop repeating his incorrect statements regarding lead paint hazards to future rental applicants.

Since the Commission found that the agent acted in good faith, one might expect that the complaint would be dismissed then and there. However, the Commission went on to consider the agent’s assertion that the lead paint mix-up was actually irrelevant because he had in fact rejected the couple’s application due to insufficient proof of income.

This, in turn, made what would otherwise have been a minor bit of information significant – the fact that the agent held the application open for several weeks. The agent explained that he did so in order to give the couple a chance to gather proof. The Commission reasoned that because the wife’s pregnancy was immediately apparent if the agent had indeed intended to discriminate against her on that basis he would have had no reason to hold the application open.  

 

The Lesson for Landlords and Agents

 

This case demonstrates that intent is subjective and that claims of illegal discrimination are not typically based on overt words or actions. Rather, bias is nearly always inferred from the fact that the conduct in question has no other reasonable explanation. Thus, for example, a landlord can violate the law without ever admitting to a racist motive if he agrees to rent to a Caucasian individual but rejects an equally qualified African-American applicant.

The case also reminds us that a clear conscience – that is, a subjective absence of discriminatory intent – alone may not be enough to overcome a claim of discrimination. Landlords and their agents must always remember the importance of adequately documenting the justification for rejecting a prospective tenant’s application.    

 

Give me a call. (617) 575 2006.   We can talk about this. I do not charge for the initial consultation. I love talking and helping people. Even times when I’m not able to take your case or I don’t think it’s appropriate and I can at least give you some guidance and some advice and hopefully make you better off for it. (617) 575-2006. Hope all is well and have a great day.

 


SJC Clarifies when a Landlord Owes A Tenant Trebles Damages in a Security Deposit Case

By | Real Estate Law, Renting, Security Deposit, Uncategorized | No Comments

Let us help you get your deposit back

When a tenant vacates an apartment, the Massachusetts Security Deposit Law permits a landlord to deduct the price of repairs from the security deposit, as long as the landlord gives the tenant a statement of itemized damages along with repair quotes within 30 days of the tenant vacating the apartment.

Many landlords have a hard time complying with this requirement for one reason or another. Often, landlords have not been able to get quotes for repairs before the 30-day period has elapsed.

The failure of the landlord to provide the itemized list of repairs within 30 days often leads tenants to believe that their landlord now owes them three times the deposit as per the Massachusetts Security Deposit Law. However, the Supreme Judicial Court disagrees.

In Phillips v. Equity Residential Management LLC, the landlord deducted $968.08 in carpet and other cleaning fees from a tenant’s security deposit. While the landlord did give a list of repairs to the tenant, it wasn’t sworn to under pains and penalties of perjury, within 30 days of termination of occupancy. The statement listed charges totaling $968.08 and stated that Phillips owed a balance of $ 218.02. The tenant filed a class action lawsuit seeking the return of their deposit, triple damages, and attorneys’ fees under the statute.

A guarantor of the lease, Phillips’s father, notified Equity that it was in violation of the Massachusetts Security Deposit Law.

On August 6, 2013, Phillips filed a class action complaint in the Superior Court, alleging that Equity had violated the law by

(1) The statement and attached document were not correctly signed and guaranteed to under the pains and penalties of perjury,

(2) Fund failed to offer adequate documentation to support the fees which were deducted from the deposition,

(3) Equity impermissibly deducted cleaning charges from the deposit, and

(4) Equity failed to return the deposit within 30 days after the conclusion of this tenancy.

The landlord removed the case to the United States District Court for the District of Massachusetts, citing the Federal Class Action Fairness Act of 2005.

The Massachusetts Security Deposit Law requires that a landlord must provide the tenant with an itemized record, signed under the pains and penalties of perjury, in addition to written proof of the price of repairs. Violations of this second obligation, like violations of the first, also lead to forfeiture of the entire security deposit. There are a few violations of this statue, including the taking of deductions that are prohibited by the law that lead to a tenant being entitled to treble damages, interest, court costs, and attorney’s fees.

In this case, the landlord delivered an itemized list of damages to the tenant within 30 days, but the list was not signed under pains and penalties of perjury, wasn’t sufficiently comprehensive and was unsupported by written proof of the expenses of repairs.  All these failings lead to the forfeiture of its right to keep any part of Phillips’s safety deposit.

SJC held that the Legislature when drafting the Security Deposit Law, did not intend for the treble damages provision to apply to a landlord’s violation of the requirements for an itemized list. Further, it stated that the treble damages provision would only apply to deductions that were not the following:

(i) any unpaid rent or water charges which have not been validly withheld or deducted pursuant to any general or special law,

(ii) any unpaid increase in real estate taxes which the tenant is obligated to pay pursuant to a tax escalation clause; and,

(iii) a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant

It’s important to note that a landlord that does not deposit a security deposit into an escrow account would be liable for treble damages if the landlord fails to return the deposit after the tenant makes a demand.

Also, note that the law requires landlords to provide a “statement of condition” at the beginning of the tenancy. Failure to do so will require the landlord to return the deposit upon demand.


Can My Service Dog Move In With Me

Can My Service Dog Move In With Me?

By | Eviction, Renting | No Comments

Can My Service Dog Move In With Me

Providers of any type of housing are obligated to provide a prompt response to any reasonable accommodation request, including requests involving service animals.  The violation of that timely response became the basis of a case against one housing provider, in which the decision was rendered not only for the owners of the service animal and condo unit, but also closed a gap between laws that made response time to these requests a grey area.

Bruno Giardiello purchased a unit at Candlelight Park Condominium complex in 2002.  The complex is managed through a board of trustees, and the master complex deed prohibits residents from having dogs in their units.  In October, 2015, Bruno Schneider, Giardiello’s son, advised his father that he could no longer live in Florida and needed somewhere to go immediately. 

Schneider had been previously diagnosed with PTSD (Post Traumatic Stress Disorder.)  This condition caused him to have periodic panic attacks that had become debilitating.  His doctor ultimately prescribed an emotional support animal for help in managing the disorder.  After moving to Florida, he adopted a mixed-breed service dog, and named her Kyla.

Upon his son’s request to move in with him, Giardiello immediately approached the Candlelight Park condo association to make arrangements for the service dog to stay in his unit.  That inquiry went unanswered, which forced Giardiello to make multiple other inquiries between October 2015 and January 2016.  All of those inquiries went unanswered, though records showed that the board had several meetings to discuss the matter between late November 2015 and early February 2016. 

In late January 2016, Schneider and his service dog, Kyla had nowhere else to go, and moved into Giardiello’s condo unit with him. 

In early February 2016, after ignoring all prior inquiries from Giardiello, the board President emailed him stating that he had one week to remove the dog from the premises.  Otherwise, a daily fine would begin being assessed.  Several days later, Giardiello received an email from the board’s attorney advising him that the dog could stay if Schneider’s physician completed an attached Certification Form within a 10 day time frame.  The Plaintiffs were unable to obtain necessary records and have the form completed within the allotted time.  They later received another email from the attorney instructing them to remove the dog immediately.  Further, they were also assessed a fine of $50.00, and advised that additional fines of $10.00 per day would be assessed for each day the dog remained in the unit.  A third email from the board attorney set an April 8, 2016 deadline for removal of the dog, and threatened legal action otherwise.

Upon receipt of the third email, Giardiello requested a meeting with the board.  His request was denied by the attorney stating there was “nothing to discuss or negotiate.”

In May 2016, the board’s attorney advised Giardiello that the board had approved Schneider’s request to allow the dog to stay in the unit.  However, he then proceeded to send demanding letters for $2,500 in penalties, daily fines, and attorneys’ fees, claiming that the fines were owed for the time the dog was in the unit without the board’s approval.

Feeling that the board had discriminated against them on the basis of a disability in violation of the Fair Housing Act, the Plaintiffs filed suit in December 2016.

§3617 of the Fair Housing Act prohibits coercion, intimidation, threats and interference as retaliation for exercising rights under the FHA.  The Plaintiffs also alleged a violation of this section in their complaint.

The Defendants in this matter brought to the attention of the Court a host of similar cases in other jurisdictions in which the rulings determined that any delay in responding to such an accommodation request does not amount to a denial, if the Plaintiff is not actually denied the requested accommodation.  They claimed that Schneider was never required to move the dog from the unit since his request had not been denied.  However, he did move out, under extreme duress, for a brief period of time due to the demands on several occasions that the dog be removed.  Judge Boal found those cases to be of note due to the fact that they involved situations in which the service animals were explicitly allowed to remain on the premises while an approval was pending.  In other words, those owners were actually advised that they were not required to remove the animal from the premises until they received a formal denial.  In Schneider’s case, the board never advised him of these rights.

The Defendants also advised the Court that the board had ultimately agreed to waive all fees and fines.

This was Judge Boal’s statement in denying the Defendants’ Motion to Dismiss, and upholding judgment for the Plaintiffs in this case…

“A housing provider has an obligation to provide prompt responses to reasonable accommodation requests.  An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.” This was the statement of Judge Jennifer C. Boal in denying the Defendants’ Motion to Dismiss in Giardiello, et al. v. Marcus, Errico, Emmer & Brooks, P.C., et al.

If you are in need of a service animal, your housing provider has a duty to timely and efficiently respond to any reasonable request they receive from you regarding accommodations for that animal. 

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Massachusetts Appeals Court Finds Tenant Must Maintain Possession When Landlord Violates Security Deposit Statue

Massachusetts Appeals Court Finds Tenant Must Maintain Possession When Landlord Violates Security Deposit Statue

By | Consumer Protection, Renting, Security Deposit | No Comments

Massachusetts Appeals Court Finds Tenant Must Maintain Possession When Landlord Violates Security Deposit StatueIn the recent court case Tringali v. O’Leary, a judge found that the awarding of possession to a landlord despite the knowledge that said landlord had violated a security deposit statute, was improper under G.L.c. 239, §8A. Appeals Court reverses finding the Landlord’s violation of 93A and 186§15 allows Tenant to retain position of the apartment.

If you are being evicted and your landlord has not properly documented your security deposit, get in Contact!

In the initial case of Tringali v. O’Leary, the plaintiff-landlord in question began to evict the defendant-tenant after she failed to vacate the premises, despite a 30-day notice that was posted signaling the defendant to quit. Once this had occurred, the tenant (who had been living at the location for around 4 years), counterclaimed against the plaintiff-landlord for a violation of security deposit law G.L.c. 186, §15B and the consumer protection law G.L.c. 93A, §9. Although the judge found the plaintiff-landlord’s termination of the defendant-tenants tenancy was to be upheld, they also found that the plaintiff-landlord’s violation of security deposit and consumer protection laws had also occurred. The court found that this had occurred for two reasons (please see G.L.c. 186, §15B; G.L.c. 93A, §9; 940 CMR §3.17(4)(c) and (e).):

  • The landlord had failed to provide the defendant-tenant with any annual interest on her security deposit.
  • The landlord failed to provide any written statement of conditions, which laid out the conditions of the tenancy/deposit at the beginning of the tenancy.

The initial final decision found that, since the defendant-tenant had failed in providing any actual evidence of damages, the court could only award small nominal damages of $25 for each violation, making a total of $50 awarded to the defendant-tenant. In the case of the landlord, the court did uphold the awarding of possession.

Unhappy with the final verdict, the tenant decided to appeal under the pretense that the court had made an error in awarding possession to the landlord, as they obtained a money judgment in their favor. The attorney for the tenant argued that the plain language found within the statute had clearly forbidden the landlord from recovering possession of the property since the landlord still owed the tenant money. To win the case, the attorney cited Lawrence v. Osuagwu, stating, “The statute does not limit the possible counterclaims to those relating to the physical condition of the premises.” The final verdict of the appeal found that the judgment that was in favor of the landlord gaining possession was made in error, and the decision was reversed in order of the tenant.

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Victims of Domestic Abuse May Break Their Lease and Demand Their Security Deposit Back

Victims of Domestic Abuse May Break Their Lease and Demand Their Security Deposit Back

By | Consumer Protection, Eviction, massachusetts tenant rights, Renting | No Comments

Victims of Domestic Abuse May Break Their Lease and Demand Their Security Deposit BackIf you have been the victim of domestic abuse or your roommate/partner has threaten you with violence, you may break your lease and demand your security deposit and last month’s rent back. The Massachusetts law protects you. After years of debate between tenant and landlord industry group leaders, a bill of protection was passed in the state of Massachusetts. Designed to protect the tenant’s immediate safety, the law allows people to legally break their leases if they are a victim of domestic violence.

If you are victim of domestic abuse and wish to break your lease, please get in contact today.

There are several stipulations set in place that make the law work. Follow these rules, and the law will protect you if you are in any immediate danger arising from physical or sexual abuse. While anyone is free to break their lease at any time, protection under this new law allows victims to break their leases without financial penalty or obligations.

Follow the Procedure

There is a process laid out for legally breaking leases. You are not protected under law if you do not adhere this process. After a domestic dispute or incident involving abuse, you may wish to move for your own protection. In the past, landlords were not required to allow you out of your lease for reasons beyond his or her control, and domestic abuse falls into this category.

Give Notice with in Three Months

To be let out of your lease, you need to inform your landlord that you are victim within three months of the latest incident. Your landlord may ask for proof that you are a victim. The best-known paper trail evidence is a police report or a restraining order against the perpetrator. This makes the landlord aware of the situation. If the tenant provides proper notice, they will be relieved of their financial obligation for the next month.

Asks the Landlord to Change the Locks

It takes time to move. If you are in immediate danger, you might not have immediate availability to move in time to protect yourself. As soon as you provide notice to the landlord, you may require them to change your locks ~ at your expense. If the landlord fails to act within 48 hours, you may change them. If the aggressor is one of the tenants, the landlord may choose to change the locks and withhold the new key.

As with any law, protections are provided with obedience, and penalties await those who break it. Landlords are protected from having to provide security deposits or rent refunds to aggressors who are tenants. However, owners who fail to comply with the new law are required to pay the tenant an amount equal to three times monthly rent plus legal fees. If the tenant is behind in rent, this value may be placed against the amount owed to recoup previously owed money.

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Can My Landlord Keep Me From Having A Pet? Not if it provides emotional support and you are disabled

By | landlord tenant, Reasonable Accommodations, Renting | No Comments

A landlord cannot prevent a disable tenant from having a emotional support animal No pet policies are meant to protect homeowners from irresponsible pet owners who allow untrained pets to ruin housing, often at the landlord’s expense. However, some people do not simply keep pets for the joy of it, but need them to actively play an assistive role in their life. Society has recognized the benefits of animals for the physically disabled for a long time, but only recently have those same benefits been widely recognized in helping disabled tenants.

If you have an emotional support animal that your landlord has requested you not keep at your apartment, please get in contact today.

Medical professionals understand that animals can provide emotional support to the handicapped that can help alleviate stress, decrease depression, and encourage further socialization in the patient. Unfortunately, many disabled people believe they cannot receive this beneficial animal companionship due to “no pets allowed” policies where they live. The fear of causing trouble with the landlord threatens to overcome their desire to connect with another living being.

Thankfully, the federal statutes that provide protection for disabled people against housing discrimination apply to this delicate situation. After several key cases, federal statutes have come to the conclusion that emotional support animals are indeed a reasonable accommodation for disabled tenants. While some landlords still try to deny valuable accommodations to those in need, the law is strongly in the favor of disabled residents. Educating disabled tenants of their rights can help them realize that this useful treatment is available to them, no matter where they live. Any landlord that insists on denying the handicapped this right is in violation of federal law.

Rehabilitation Act of 1973 Gives Disabled Tenants New Rights

The first step toward providing protection for disabled residents in housing accommodation occurred with the introduction of Sec. 504 in the Rehabilitation Act of 1973. This important statute showed that America was ready to fight against policies that discriminated against the then very oppressed handicapped citizens of the Untied States.

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors.

Two further actions were needed before the laws regarding “no pet policies” and the handicapped were made clear. First, the United States Court of Appeals for the Fifth Circuit finally decided, in 1981, that the waiving of “no pet policies” were to be considered a reasonable accommodation under the statutes of the Rehabilitation Act of 1973.

While this step was important, the laws set out under the Rehabilitation Act of 1973 held many gaps regarding language about housing discrimination that caused legal decisions to become difficult. Finally in 1988, the Department of Housing and Urban Development (HUD) was able to work to fill in these gaps in language so that future decisions could be made clear regarding the housing accommodations required for handicapped people.

Defining and Presenting your Handicap

Sec. 504, as well as the Federal Fair Housing Amendments Act of 1988 (FHAA), requires that a tenant must have a qualifying disability to be able to waive the “no pet policies” of their landlords. Three requirements have to be met to qualify a person as mentally handicapped:

  • “A physical or mental impairment which substantially limits one or more of such person’s major life activities”
  • “A record of such an impairment”
  • “Being regarded as having such an impairment”

Language within HUD regulations allows the definition of what qualifies as a mentally handicapped person to be even broader, stating that a mental disorder can include “mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities.” In addition to this, the statutes and regulations of HUD policies clearly point out that the scope of “handicap” should not be, and cannot be, limited to solely these definitions. Thankfully, this helps those in need of federal protection to obtain it in a simpler manner. One reason this is written as such is because Congress realized that broad definitions of “handicap” would protect affected individuals in many areas of life; not just their ability to own a pet for emotional support.

In order to successfully file to prove a case of housing discrimination under Sec. 504 of FHAA, the client’s situation must be able to meet four criteria:

  • They must suffer from a handicap.
  • Landlord either knew about the handicap or was reasonably expected to know about it.
  • The requested accommodations were necessary for the tenant to have an equal opportunity to use and enjoy the living space.
  • The Landlord refused to provide the requested accommodations.

When applying this to waiving “no pet policies” for a mentally disabled tenant, it must be proven that the accommodation of their emotional support animal affects their ability to function, by lessening the overall impact of their disability upon their daily life. However, courts have rejected any concrete definitions of what is considered a reasonable accommodation, so landlords will still try to combat these federal laws from time to time. What landlords usually focus on is the requirement that an “accommodation must pass a cost-benefit balancing test that takes both parties’ needs into account.”

Important Cases

Thankfully, the Majors v. Housing Authority of DeKalb Georgia provided a ruling that demonstrates that housing authorities’ failure to wave no pet policies to accommodate mentally disabled tenants did, in fact, amount to discrimination. In this case, an elderly woman, Ms. Majors, had her lease terminated because she had a small dog in the living space to help her with her long history of psychological problems. Courts ruled that the housing authority’s actions illegally deprived Ms. Majors of reasonable accommodations by taking this action. Courts determined that the dog was a reasonable accommodation due to three factors:

  • Majors could only fully enjoy the benefits of the housing program if the needed accommodations for her disability were met. (The dog, in this case.)
  • Language stated that the housing authority could “easily make a limited exception for that narrow group of persons who are handicapped and whose handicap requires the companionship of a dog.”
  • Courts determined that the no pet policy was not a fundamental part of the program, and could thus be overrode.

The Majors case led to further cases that cemented the fact that emotional support animals were a reasonable accommodation to people with mental disabilities. One of the more famous instances of such a case was Whittier Terrace Associates v. Hampshire, in which a woman kept a cat in a no pet policy rental house due to the effects of her psychiatric disability. Ultimately, both of these cases came down to the finding that mentally disabled tenants can only truly experience the full benefits of their living space if they are given proper accommodations, and that emotional support animals provide a reasonable enough accommodation to override the non-fundamental no pet policies of housing authorities.

Additionally, courts have frequently determined that emotional support animals do not have to be officially certified or trained to qualify as a reasonable accommodation. Instead, they put the focus solely upon whether a fact-specific analysis can determine whether or not the animal truly lessens the effects of a person’s disability. Several cases helped set this precedent, including Green v. Housing Authority of Clackamas County and Bronk v. Inichen.

Exceptions

While most mentally disabled people will be able to override no pet policies easily with a waiver, there still exist a few exceptions that may keep them from being able to own an emotional support animal. Essentially, it comes down to two things:

  • If an animal fundamentally alters the nature of a housing program.
  • If the landlord suffers an undue financial or administrative burden.

Basically, any exception is made to keep any undue burden from falling on the landlords or fellow tenants due to accommodations provided to the mentally disabled tenant. For example, if the presence of the emotional companion animal were to present a safety or health hazard to other people that live on the property, the disabled tenant would no longer fall under the protection of the statutes that define the emotional support animal as a reasonable accommodation. Thankfully, simple speculation of an animal providing a safety threat will not cut it when a landlord is attempting to block a waiver of a no pet policy. To effectively block the tenant’s request due to safety concerns, objective evidence must be provided that show the adverse affects the animal’s presence has caused.

Finally, if a disabled tenant is unable to follow or perform other rules regarding animals that apply to all tenants, the landlord may be able to reject their requested accommodations. For example, if the tenant in question cannot clean up after the animal’s waste in common areas, the other tenants are put at risk of potential safety and health hazards.

Conclusion

Overall, there is little to no reason a landlord cannot easily provide the accommodations necessary for a disabled tenant to keep an emotional support pet. Aside from the few examples listed above, no undue burdens will affect a landlord’s ability to perform proper upkeep on a living space due to the presence of an emotional support animal.

If you have an emotional support animal that your landlord has requested you not keep at your apartment, please get in contact today.

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Legal Remedies For Tenants Of Residential Housing

By | Renting | No Comments

The following is a brief summary of some of the legal remedies tenants may use in order to get housing code violations corrected.

  1. Rent withholding (General Laws, Chapter 239, Section 2A).

If Code Violations Are Not Being Corrected you may be entitled to hold back your rent payment. You can do this without being evicted if:

  1. You can prove that your dwelling unit or common areas contain code violations, which are serious enough to endanger or materially impair your
  2. Health, or safety and that your landlord knew about the violations before you were behind in your rent.
  3. You did not cause the violations and they can be repaired while you continue to live in the building.
  4. You are prepared to pay any portion of the rent into court if a judge orders you to pay it. (For this it is best to put the rent money aside in a safe place.)
  1. Repair and Deduct (General Laws, Chapter III, Section 127L).

The law sometimes allows you to use your rent money to make the repairs yourself.

If your local code enforcement agency certifies that there are code violations, which endanger or materially impair your health, safety or well being and your landlord has received written notice of the violations, you may be able to use this remedy.

 

If the owner fails to begin necessary repairs (or to enter into a written contract to have them made) within five (5) days after notice or to complete repairs within fourteen (14) days after notice, you can use up to four months’ rent in any year to make the repairs.

  1. Retaliatory Rent Increases or Evictions Prohibited (General Laws, Chapter 196, Section 18 and Chapter 239, Section 2A).

The owner may not increase your rent or evict you in retaliation for making a complaint to your local code enforcement agency about code violations.        If the owner raises your rent or tries to evict within six (6) months after you have made the complaint he/she will have to show a good reason for the increase or eviction, which is unrelated to your complaint. You may be able to sue the landlord for damages if he/she tries this.

 

  1. Rent Receivership (General Laws, Chapter III, Sections 127C-H).

 

The occupants and/or the Board of Health may petition the District or Superior Court to allow rent to be paid into court rather than to the owner. The court may then appoint a “receiver” who may spend as much of the rent money as is needed to correct the violations. The receiver is not subject to a spending limitation of four months’ rent.

  1. Breach of Warranty of Habitability.

You may be entitled to sue your landlord to have all or some of your rent returned if your dwelling unit does not meet minimum standards of habitability.

  1. Unfair and Deceptive Practices (General Laws, Chapter 93A).

Renting an apartment with code violations is a violation of the Consumer Protection Act and Regulations for which you may sue an owner.

The information presented above is only a summary of the law, before you decide to withhold your rent or take any other legal action, it is advisable that you consult an

Attorney.         Please get in contact today if you need help.

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Top Five Options If Your Massachusetts Landlord Won’t Make Repairs

By | Renting | One Comment

Landlord must make repairsWe’ve all been there: the perfect day ruined by a burst pipe, broken door hinge, or other damages to your apartment. Most likely, the first thing you do when your apartment or house needs repairs is call your landlord, and discuss when and how repairs can be made. But following that phone call, one of two things can happen. Either your landlord can be responsive, and fix your apartment or contract a maintenance worker ASAP. Or, as is often the case, your landlord may ignore your requests, leaving damages unrepaired and your day ruined.

If your landlord wont make repairs please get in contact today

If your landlord doesn’t assist you in repairing your apartment, what options do you have? How can you pressure your landlord to maintain your renter’s contract by maintaining your living space, and if they aren’t cooperative, what can you really do? Here are are five options for what you can do if your landlord refuses to make repairs.

1. Withhold Rent

One of the most effective tools you have as a renter in Massachusetts is your ability to withhold rent from your landlord, though there are some factors you should take into serious consideration if you decide to go this route. By withholding rent, you have a powerful bargaining chip in negotiating with your landlord, as they will be sure to take you seriously if their finances are on the line.

 

However, you have to consider how your landlord will react. Does your landlord have a temper, and are they likely to get aggressive if you withhold rent payments? Are they prone to taking you to court, or otherwise attacking you for your withholding? If so, you may want to threaten to withhold rent without actually doing so, or keep this option as a last resort.

 

If you decide that withholding rent is the best course of action to get your apartment repaired, there are a few things you have to keep in mind. Are there defective conditions in your apartment? Do these conditions endanger or impair anyone living in the house? Does the landlord know about the defective conditions? Were the conditions caused by someone other than you? Can your landlord make repairs without you having to move out? If you answer yes to all of these above questions, then you have the right to withhold rent from your landlord.

 

In order to withhold rent, you must write your landlord informing him what conditions exists, that these conditions have not been repaired, and you will be withholding rent until the conditions are fixed.

2. Make Repairs Yourself, and Deduct Costs from your Rent

If you are willing and able to do so, there are situations in which you can make repairs on your apartment or house yourself, and deduct the costs of your repairs from your rent. By taking responsibility of doing repairs yourself, you can be sure they will get done quickly, but you also make yourself liable if they aren’t done right.

 

If you have violations that impair or endanger your health or safety, and you have given your landlord 14 days written notice to make the repairs themself and given them access to your home to do so, then you may have the right to make repairs yourself. Just as long as you didn’t cause the damages directly yourself.

 

If all of those conditions are met, and you feel able to do so, feel free to make repairs on your own. Once you have done so, you may deduct the costs of the repairs up to a total of four months rent worth of deductions. However, be warned that your landlord has the right to take you to court if they think you have deduced too much for your repairs. So, if you decide to go this route, make sure that you rigorously document all of your costs and be willing to defend them.

 

As in the option to withhold rent, you must inform your landlord that you will be deducting the cost of repairs from rent. This must be done in writing so that your landlord cannot latter say he was not informed.

3. Organize your Fellow Renters

One of the most frustrating things about trying to get your landlord to make repairs is that you can feel powerless, and like your landlord has no reasons to listen to you since they have all of the leverage. But chances are, if your apartment or house needs repairs, other tenants that rent from the same landlord may have had issues with repairs in the past. So, in order to amplify your voice and have more leverage in discussions with your landlord, you can try to organize your fellow renters.

 

Start by informally discussing with your neighbors any qualms you have with your landlord’s slow response to your repair requests, and see if others have had similar issues. If they have discuss the possibilities of drafting a formal letter to your landlord, and gathering signatures from all of the affected tenants who have had issues. If your landlord still refuses to make repairs or acknowledge your efforts, organizing tenants now will help you later if you decide to take your landlord to court.

 

Once you have organized, you have a lot more options at your disposal, and can even request that a judge appoint a temporary landlord until you have made progress in convincing your current one to be more responsive. No matter what route you decide to take, organizing your community is a good place to start, as it will make it clear to your landlord and anyone else that needs to get involved that it isn’t a personal problem, but rather an more wide spread issue.

4. Take your Conflict to Court

If your landlord refuses to make repairs after other efforts, you can take them to court for their negligence. While it depends on the discretion of the court, the judge that presides over your case can order your landlord to make repairs immediately, order your landlord to pay you damages for harm suffered, appoint a specialized professional called a receiver to manage and fix up your property, and ultimately even fine or jail your landlord for their violations.

 

Once you decide that taking your landlord to court is the best option for you, you have one of four types of complaints you can file.

 

  1. A tenant petition is a fairly safe way to see your needs met, and consists of simply asking the judge to direct your landlord to make repairs.
  2. An emergency injunction a more serious filing, and can result in a judge ordering your landlord to do something immediately, or even can lead to a temporary restraining order against your landlord if the judge thinks it is necessary.
  3. A criminal complaint holds your landlord more responsible for violating housing code and failing to complete repairs, but may take several weeks or more to make it through the courts.
  4. Finally, a civil lawsuit can be filed if your landlord refuses to make repairs, and can result in a judge ordering your landlord to award you more extensive damages.

 

 

  1. Break your Lease

Finally, if you have no other options, you can always choose to break your lease and find a new housing situation. if your landlord has not followed housing or sanitary code guidelines in keeping your housing repaired well, than you have the legal right to leave your housing and exit any existing leasing agreement. You can even get your full security deposit back, as long as you are on the right side of the law and your landlord has been negligent. Of course, your landlord may not think that you are leaving fairly, and may sue you for rent or damages, so consider this option as a last resort unless you are in an extremely dangerous or unhealthy situation.

 

The Bottom Line:

You have quite a few options to pursue if your landlord doesn’t make repairs to your apartment or house as they should. All of the above are valid routes to pursue, and can lead to improved living situations for you one way or another. But while taking one of these routes, you should be aware that things can go against you in court. So, in order to protect yourself, the best thing you can do is have a good lawyer in your corner as housing disputes come up.

 

Doubleday Law is an experienced Massachusetts law firm, that knows the ins and outs of housing law that will pertain to your case and situation. With a good firm like Doubleday Law on your side, you can take your landlord to court more confidently, and make sure that you have all of your ducks in a row when you file a complaint. You can consult in a good lawyer’s expertise to determine if you have a case in the first place, and make sure that no matter what, you don’t come out of any conflict worse off than when you started. So, if your landlord isn’t repairing your apartment as they should, please get in touch today.

 

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