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The 8 Laws We Must Change in 2013

1. A BILL TO HAVE THE 14-day NOTICE FOR NON-PAYMENT OF RENT BE SHORTENED TO A 7-DAY OR A 3-DAY AS IT IS IN CA.

SECTION 1. Section 11A of Chapter 186 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in lines 2 to 3, inclusive, the words “for other than dwelling purposes”.
SECTION 2. Section 12 of said Chapter 186, as so appearing, is hereby amended by inserting after the words “tenant at will”, in line 10, the following words:- “unless a written lease provides otherwise in accordance with the provisions of this chapter,”.
SECTION 3. Section 9 of Chapter 239 of the General Laws, as so appearing, is hereby amended by striking out, in line 7, the words “section twelve” and inserting in the place thereof the following words:- “sections 11A and 12”.

WHY DO WE NEED TO MODIFY THIS LAW?  It not practical to give 14-day notices on the 2nd day of the month. We usually wait until the 8th or 9th before sending it. Otherwise we would be agitating tenants. When all is said and done it takes about 2 months before the case reaches a judge and that is in the best case scenario – if there is no answer and no counterclaims. In many cases we lose money from the eviction EVEN if we keep the full Security Deposit and the full Last Month. We need to reach a judge faster.

 

 

2. A BILL TO INCREASE THE NUMBER OF STORAGE FACILITIES AVAILABLE FOR PHYSICAL EVICTIONS

-replace the words “licensed public warehouser” in MGL 239, sec 4 with “storage facility”

WHY DO WE NEED TO MODIFY THIS LAW?  The requirement that the storage facility is a publicly bonded warehouse must be removed. Since this law was enacted in 2004, the bonded storage companies in MA have turned into monopolies. Two years ago they were 29 and now they are only 15 of them for the whole state (there is only one option in Worcester area, for example and only 2 for the whole Western MA). They used to ask for 2 months pre-paid, now they are demanding 6 months pre-paid because they are monopolies.

 

3. A BILL TO MODIFY MGL 239, Sec 8A TO REQUIRE MANDATORY RENT ESCROW (THIS IS THE MOST URGENT AND MOST IMPORTANT ISSUE FOR LANDLORDS IN MA) 

-re-file S779

WHY DO WE NEED TO MODIFY THIS LAW?  Because MGL 239, 8A contains no build-in consequences (like mandatory rent escrow, for example) to bad-faith rent withholding it has basically legalized tenant retaliation against landlords in MA. Tenants routinely use the current MGL 239, sec 8A  to justify the “withholding” of the entire rent for minor things like missing window screens or for things that they had broken. They routinely call the Health Board in bad-faith and retaliation and then start “withholding rent” after they receive a letter from us or after we tell them something they don’t like to hear. Sometimes they call the Health Board and start “withholding” simply because they ran out of money for the rent. By the time we reach a judge (about 2 months) they are gone with our rent because it was never escrowed. If they are not gone they try to use the “poor conditions” as counterclaims against us when they are the ones who called the Health Board in bad faith and in retaliation to us trying to enforce what’s left of our rights or simply because they ran out of the rent money. If the full rent was not escrowed, it must be assumed that the Health Board was called in bad-faith and all Habitational Counterclaims disallowed, that’s what needs to happen. This can happen by simply adding a 5th exception to MGL 239, 8A as to when a tenant can use habitational counterclaims and that’s exactly what S779 does. If enacted, Housing Court case load will fall dramatically if tenants are made to account for the rent, which shouldn’t be hard as they should already have the full rent. Tenants are not deprived of any due process rights because their case will be heard by a judge and if ordered some of the escrowed rent will go to them as compensation for poor conditions or other violations by the landlord.

 

 

4. A BILL TO CLARIFY MGL 93A TO COME WITH A RIGHT TO A JURY AND NOT TO APPLY IF NO ACTUAL INJURY PROVEN

– Re-file H489, just remove the word “technical” from the new bill

WHY DO WE NEED TO MODIFY THIS LAW?  Some judges in Housing Court decide 93A without a jury and that is unconstitutional because 93A is a factual/legal claim and not an equitable claim that can be reserved by a judge. Also some judges allow $25 nominal awards that come with thousands of dollars of attorney fees for just a sentence or two in a contract which sentences were deemed to be unfair or deceptive to someone even when that particular clause or sentence was never enforced and the consumer was never actually injured. For more please read the last 2 post on my web site http://www.MassachusettsLandlords.com regarding Judge Dina Fein.

 

 

5. A BILL TO ALLOW APPLICATION FEES

– Add to MGL 186, 15B 1(b) “(v) the cost to purchase a credit, a criminal and/or an eviction report.”

WHY DO WE NEED TO MODIFY THIS LAW?  We need it because there are tenants who fill multiple applications with many landlords  with no intention of becoming our tenants and there are also many prospective tenants who lie on their applications about their credit, criminal and eviction background. The application fees should be legal for landlords as they are legal for realtors and banks engaging in the same process – evaluating the qualifications of a tenant or a borrower. Application fees can add up with so many prospective tenants. If the prospective tenants know they have to pay for an application , they would only apply to apartments they really want and they would lie less on their applications. If cost was not an issue for landlords, more of them would check the credit, criminal and eviction background before they take the tenant resulting in better selection, less evictions and lower housing court loads.

 

 

6. A BILL TO MODIFY MGL 186, 15B TO CLARIFY THAT THE TRIPLING OF THE SECURITY DEPOSIT IS RESERVED ONLY FOR CERTAIN SPECIFIC VIOLATIONS AND NOT FOR ANY VIOLATION OF 186, 15B. (THIS IS THE SECOND MOST URGENT AND MOST IMPORTANT ISSUE FOR LANDLORDS IN MA)

– MGL 186, 15B, 6(a) is changed to ” fails to deposit such funds in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor”. WHY DO WE NEED TO MODIFY THIS LAW?  Because the current text (“fails to deposit such funds in an account as required by subsection (3)”) is too broad and vague and could be interpreted to mean that the landlord is not entitled to collect a security deposit for trivial issues like not paying interest which in most cases amounts to several dollars a year…

– remove “in compliance with the provisions of this section” from subsection 6(b). WHY DO WE NEED TO MODIFY THIS LAW?  Because that was incorrectly interpreted by a recent App. Ct case Taylor v Beaudry to mean that it doesn’t only apply to the 30-days as it was meant by the Legislature but also to any violation of MGL 186, 15B and specifically of 4 (iii). As the dissenting opinion on that case correctly points out the lack of it being signed under the pains of perjury, for example,  should not entitle the tenant to 3 times the security deposit.

– Create a new subsection 6 (f) to MGL 186, 15B to say ” fails to give the tenant a receipt within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit.”   WHY DO WE NEED TO MODIFY THIS LAW?  Because this language is currently in 3 (a) and it can be easily not seen by a landlord. It belongs in subsection 6 which is the subsection that explains under what circumstances the landlord would forfeit the security deposit. We don’t need MGL 186, 15B to be a trap for landlords as it is now. We need it to be clear, simple and well organized.

– replace MGL 186, 15B, 6 (e) that currently states ” fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.” with “fails to return, after deducting actual or estimated damages in good faith, what is owed to the tenant plus interest within thirty days after termination of the tenancy.” WHY DO WE NEED TO MODIFY THIS LAW?  Because the term “balance thereof” is very unclear and controversial and the wording “in accordance with this section” has been wrongly interpreted to mean that any violation of the whole MGL 186, 15B will mean that the landlord must pay the tenant 3 times the security deposit. It is best to remove the general statement “in accordance with this section” and replace it with the specific language proposed here. It is important to say that good-faith estimates are acceptable. We should not have to pay triple the security deposit if we overestimate the carpet cleaning with $10.

 

 

7. A BILL TO ALLOW LATE FEES AFTER 10 NOT 30 DAYS

SECTION 1. Subsection 1 (c) of Section 15B of chapter 186 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 26, the word “thirty” and inserting in place thereof the following word: – “ten”.

WHY DO WE NEED TO MODIFY THIS LAW?  If Banks are allowed to do it so should we. Waiting 30 days turns some tenants into being late with the rent habitually and paying their utility bills first as utility companies in MA are also allowed to charge late fees after 10 days. We prefer not to evict them. That would be too harsh. A late fee after 10 days is what we prefer to eviction. We want a level playing field.

 

8. Also there is an issue with banks having language that says that they can ask for all of their money back if they “deem themselves insecure” and that can happen for any reason and at any time EVEN IF you pay your mortgage on time. I think all banks in MA have that language in their contracts. We have to address that too. That is what caused the 80s crisis when the banks asked for all of their money at once because they felt insecure because of the economy and caused massive bankruptcies. It looks like we are not learning from the past. In order to have a valid contract a consideration must be exchanged. In other words, in order to sign our ownership rights of a particular real estate over to them, we need to get money as consideration. I don’t think the contracts are valid if a bank is allowed to say “I will give you $100,000 in consideration but I can get it all back at any time for any reason.” That doesn’t seem to me like a valid contract. As far as the actual law that needs to be changed, unfortunately, I do not know which one it is. I simply know that we can’t keep borrowing under “contracts” like that as we are putting our businesses in danger.

 Call to Action:

1. Please meet with your Legislator to discuss these. The Deadline for your Legislator to introduce a Bill on each of these or support these is 01-15-13. IF YOU DON’T DO IT NO ONE ELSE WILL.

2. Please become my Friend on Facebook (https://www.facebook.com/massachusettslandlords) and a Follower on Twitter (https://twitter.com/malandlords

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