MassLandlords Newsletter for June 2016

Page 1

June 2016

The Security Deposit Sky Is Not Falling: Meikle v. Nurse Did Not Change Evictions Forever

Real Estate Bar Association Appoints Landlord Attorney Emil Ward to Dispute Resolution Panel

What does it Cost

to Help the Massachusetts Homeless?



from the 3 Letter Executive Director

to Fix a 13 How Garbage Disposal

does it 4 What Cost to Help the

Security Deposit 15 The Sky Is Not Falling:

Massachusetts Homeless?

and 8 Questions Answers


Real Estate Bar Association Appoints Landlord Attorney Emil Ward to Dispute Resolution Panel

Meikle v. Nurse Did Not Change Evictions Forever

Poverty 18 Evicted: tenants & welloff landlords

21 Discrimination Do’s and Don’ts

8 10



2 • MassLandlords Newsletter

June 2016

Published by MassLandlords, 14th Floor, One Broadway, Cambridge, MA 02142. The largest non-profit for Massachusetts landlords. We help landlords. We also advocate for better laws. 774-314-1896 THE MASSLANDLORDS BOARD OF DIRECTORS

Pietro Curini, through 2020 Joyce Nierodzinski, through 2019 Yvonne DiBenedetto, through 2018 Michael O’Rourke, through 2017 Jane Gasek, through 2016 Russell Sabadosa, by member resolution, until September 14, 2017 EXECUTIVE DIRECTOR





Richard Trifone


Richard Merlino


Sandra Katz, Ralph “Skip” Schloming, Michelle Kasabula WORCESTER REGISTRATION DESK STAFF

Naomi Elliott, Caitlin Taylor


Simona Meloni, Ani Dmitrova NEWSLETTER DESIGN

Ailar Arak


Paul Mong



Elaine Fisher


Sheryl Chase, Russell Sabadosa, Susan McMahon, and more MARLBORO

Sherri Way, Laurel Young, Daniel Schiappa, and more STURBRIDGE

David Foote, Hunter Foote, Ronald Bernard, Donat Charon, and more CAMBRIDGE

Lenore Monello-Schloming, Dawna Provost, Linda Levine, and more With Immense Gratitude to Seven Decades of Past Volunteers

Letter from the Executive Director May was a blockbuster month. We continued onboarding our new communications hire, launched a rent collection pilot, opened an office in Cambridge, and experienced a landlording “earthquake” in Springfield. I’ll tell you about each of these. Our new Manager of Communications and Social Media is Susan Manning, based in Worcester. We first announced her hiring in the May newsletter. Please extend a warm welcome to her if you haven’t already. If you are subscribed to updates about local events, you may have already seen her event reminders. Susan will be helping to craft emails, perform real journalism for the newsletter, and help with Twitter, Facebook, and LinkedIn. Previously this work was performed mostly by volunteers and by me. Susan can do much of the heavy lifting needed to grow our organization. In Worcester last month we also launched a rent collection pilot. This is a partnership with a third party provider. MassLandlords will receive an affiliate commission. The pilot is focused on landlords who have difficulty collecting rent from tenants with cash flow challenges. We are targeting a neglected niche. The service cannot collect money that doesn’t exist, but it can help improve communication, and it can help particularly if a tenant would be more stable on a weekly or biweekly payment schedule synchronized with their income. The service is cheap and requires zero computer skills of either party. If interested, please contact me. MassLandlords is a state-wide organization. We grew up in Worcester, and maintain a physical presence there. And now we also have shared office space at the Cambridge Innovation Center (CIC). You will see us using this as our primary mailing address going forward. I’m there two or three days a week. The CIC is a nursery for fast-growing companies and other organizations like MassLandlords. We have already started taking advantage of their beautiful event spaces and well-appointed meeting rooms. Those are the first three updates. I have saved the best for last. The big news from Springfield, the “earthquake”, is this: The Rental Housing Association of Greater Springfield wants to become one with MassLandlords. Currently it’s a separate legal entity and we have a service contract with them. Their board has voted to dissolve and transfer their operations to MassLandlords. We would give their members a full vote, collaborate closely on Springfield operations, and pull our resources together for stronger, even-handed policy advocacy. The MassLandlords Board of Directors approves this plan. The Springfield plan requires ratification by voting MassLandlords members. This means “Digital” members and all memberships named “WPOA”. Early indications are that the vote will be “yes”. If you are a member, you must vote on Wednesday, June 8. See later in this newsletter for details. May was not without setbacks, hurdles, missteps, and challenges. But with such positive developments, it’s hard not to be both optimistic and proud of what we’re accomplishing together. Tell a friend about MassLandlords. We’re on to great things. Sincerely, Doug Quattrochi Executive Director C: 617-285-7255 MassLandlords Newsletter • 3

June 2016

Every Massachusetts resident has access to a shelter. Some prefer to sleep elsewhere.

What does it Cost

to Help the Massachusetts Homeless? MASSACHUSETTS IS A RIGHT-TO-SHELTER STATE, WHICH MEANS ANY HOMELESS RESIDENT HAS THE RIGHT TO AN INDOOR SLEEPING SPACE, EVEN IF THEY CANNOT AFFORD ONE. WHAT DO EXISTING SOLUTIONS COST? BUDGET ANALYSIS FOR MASSACHUSETTS HOMELESS In the Governor’s FY 2017 budget request, “Emergency Assistance Family Shelters and Services” was allocated $191 million. This was 34th on the list of 802 budget line items, or in the top 5% of all line items. “Emergency Assistance Family Shelters and Services” (EA), includes state-run shelters, motels, and so-called “scattered sites,” where the state rents an apartment at market rates and sublets for free to families as needed. For comparison, the single largest budget item was “MassHealth Managed Care” ($5.5 billion). The smallest item receiving the Governor’s attention was the “Holyoke Antenna” ($5,000), which 4 • MassLandlords Newsletter

was for the installation of TV antennae at the Holyoke Soldier’s Home. Homeless assistance was the same order of magnitude as “the Department of State Police” ($286 million), “Public Health Hospitals” ($157 million), and the “Massachusetts Transportation Trust Fund” ($327 million).

PER FAMILY ANALYSIS MassLandlords has been informed that there are roughly 4,500 families in EA, and that the average stay per family is nine months. This would mean that approximately 6,000 families are being served each year. If these figures are correct, then the cost of EA would be $31,833 per family per year.

The Cato Institute has analyzed replacing subsidies with a so-called Guaranteed Minimum Income. Although they do not recommend it yet, it is thought provoking to imagine “what if” we just paid each homeless family $31,833. Would they spend it all on housing? What cheaper options could they find? Some families could make use of a guaranteed minimum income. Others with mental health or other challenges could not make use of this income, and would need to be taken care of directly.

COST OF NEW SHELTER CONSTRUCTION AND SERVICES The Department of Housing and Community Development is much less expensive than new construction, as reported by the Patch. Patch reported the opening of the Francis Grady Apartments on May 2, 2016. These apartments house

June 2016

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30 homeless, and provide services to help them regain self-sufficiency. Patch reported that the total money raised to construct the apartments, along with a

700 families). Half of the advertised motel reduction has been a decrease in homelessness, the other half has been movement to shelter or scattered sites. Overall line item spend is forecast to remain constant or to increase. EA is expensive, regardless of where a client sleeps. Motels are not the only source of high costs, although they are politically easy targets.

REASONS WHY MASSACHUSETTS HOMELESS CAN’T JUST “GET A JOB” Days Inn is a common participant in the state's EA overflow program.

20 bed medical center for the homeless, was $13.6 million. Although they did not calculate the figure, it is easy to see that each new “shelter” cost $272,000 per bed, and $453,000 per unit. The market price to purchase a studio in Jamaica Plain may be higher.

Massachusetts homeless have what policy advocates refer to as “housing barriers,” meaning, reasons why private landlords prefer not to rent to them. First and foremost is the unstable housing history. Landlords typically give extra points for living in one place for a long time. Being homeless scores zero or negative points.

In addition, homeless applicants may have minor CORI, bad credit, mental health challenges, or other disadvantages. Landlords therefore perceive risk compared to other applicants with similar incomes or subsidies. It is difficult for employers with similar perceptions to hire homeless applicants. The homeless therefore experience a Catch-22: It’s hard to get a job without a permanent address, and it’s hard to afford a permanent address without a full time job. HomeBASE is the name of the state subsidy for Massachusetts homeless. It offers up to $8,000 for a variety of purposes, including utility arrearages, furniture, transportation, and rent in the first year after shelter. According to an employee at Metro Boston Housing Partnership, speaking anonymously, it is believed that the average homeless

THE GOVERNOR’S PUSH TO EMPTY THE MOTELS Homeless for whom there is no room in state shelter are given hotel or motel rooms. Governor Baker recognizes that motels are an expensive way to provide shelter. The Boston Globe reported that the number of motel homeless has declined by almost two-thirds since Baker took office. The article has excellent graphs that interested readers should review. Despite tending to clear the motels, as of May 16, 2016 the total reduction in EA had been only 16% (approximately

The MA Senate Special Commission on Housing produced a report recommending Insurance Against Homelessness, but the Commission no longer meets and there has been no follow-through. MassLandlords Newsletter • 5

June 2016

family takes more than four years to stabilize. In this light, HomeBASE appears to be an incomplete solution.

ARE THERE BETTER WAYS TO HELP THE MASSACHUSETTS HOMELESS? In 2015, MassLandlords began advocating for Insurance Against Homelessness, or the Landlord-Tenant Guarantee. This program would insure private landlords who overlook most housing barriers when reviewing a homeless applicant. Landlords would receive a guarantee designed to eliminate the perception of risk, e.g., an eye-popping dollar figure, to cover unpaid rent, property damage, and attorneys’ fees if the tenancy failed. In Worcester this limit might be $10,000; in Boston, perhaps $30,000. The idea is based on a successful program in Seattle in which only 4% of homeless families result in a claim in two years. This works out to be $400/family, or just 5% the cost of Massachusetts HomeBASE

6 • MassLandlords Newsletter

before accounting for administration. The Seattle program is coupled with self-sufficiency services for tenants. Also, it requires landlords to report problems immediately to a landlord-facing advisor. Unlike existing regional administrations, the landlord advisor becomes actively involved in mediating landlord-tenant disputes and thereby protects the state’s interest in the guarantee. Private housing is generally onethird the cost per day of current EA spend and provides better facilities (e.g., a kitchen). Compare $90/day for a motel, to $30/day for a Worcester two bedroom with kitchen and yard. The Seattle program has housed thousands of families in the last five years for a fraction of what Massachusetts has spent for comparable results. The Landlord-Tenant Guarantee has already been reviewed by Massachusetts legislators and recommended. See the 2016 Senate

Special Commission on Housing Report, which features a variant of the idea.

MOST POLICY MAKERS UNAWARE OF THE BETTER POSSIBILITIES The Insurance Against Homelessness program could be piloted for any amount of money over $100,000, depending on how many families would be enrolled and which regions it serves. In terms of the Fiscal Year 2017 budget, this would represent 0.05% of EA spend, a very small sum. MassLandlords has been invited to present Insurance Against Homelessness to the City of Boston and the City of Worcester. The City of Boston recently announced $7.5 million for landlords who would lower rents for 50 years. (This idea was crafted without MassLandlords input.) There is clearly money to spend on the problem. The challenge is in getting started with a fresh concept like Insurance Against Homelessness. Read about it at, and spread the word. ML


Okay to Discriminate Against Donald Trump Supporters Full article at Excerpt: A landlord in Grand Junction Colorado has refused to rent to a tenant who supports Donald Trump for president, and HUD has weighed in: that’s all right. his implies there’s free rein to question tenants about their political affiliation.

Ford’s Pest of the Month: Mosquitos THE MOSQUITO GOES THROUGH COMPLETE METAMORPHOSIS, WHICH CONSIST OF FOUR SEPARATE AND DISTINCT STAGES OF ITS LIFE CYCLE: EGG, LARVA, PUPA, AND ADULT. Mosquito eggs are laid one at a time or attached together to form egg masses. Some float like rafts on the surface of the water while other eggs are placed in soil that is moist. Most eggs hatch into larvae within 2 days. Water is necessary for hatching to occur. The larvae then feed on organic matter in the water and molt 4 times. The pupal stage is a resting stage and no food is ingested. Surprisingly, pupae are mobile, responding to light changes by using their tails as flippers and propelling themselves towards the bottom or into protective

areas. When development is complete, the pupae skin opens and the adult mosquito emerges. The newly emerged adult rests on the surface of the water for a short time to allow itself to dry. The wings have to dry properly before the mosquito can fly. Blood feeding and mating will not occur for a couple of days after the adults emerge. How long each stage lasts depends on both temperature and species characteristics. Mosquitoes are well known for caring and transmitting multiple types of diseases; Malaria, Dog Heartworm, Eastern Equine Encephalitis, Chikungunya and the West Nile Virus. Currently, 65 mosquito and 300 bird species have all tested positive in the United States with the West Nile virus. Our mosquito program helps kill and repel active mosquitoes. Our trained and licensed applicators

treat harborage and breeding sites. These areas include trees, shrubs, ground cover, under decks, bedding plants, and if applicable wetlands. Applications may be made closer together during high insect pressure or re-infestation but no closer than one week apart. Larvicides may be applied if applicable to breeding sites for further protection. In addition to our applications, our trained applicators will also inspect and make recommendations to the homeowners that help reduce breeding areas. Also, both traditional and organic services are proven to kill and repel fleas, ants, spiders, ticks, and other biting insects. Are you beeing bugged? Contact us at! Geoffrey Ford, Vice President Ford’s Hometown Services

June 2016


If the 2016 election is a concern, consider this: whoever becomes president still has to deal with Congress and the various agencies governing housing. We don't anticipate the Section 8 programs being gutted. Too many families receiving subsidies, along with the other industries that touch the housing programs, would be directly affected. Will the government always pay? Eventually. The HUD Housing Assistance Payments Contract (HAP Contract), Part C, section 5, "Family Payment to Owner" reads in part:

A PHA failure to pay the housing assistance payment to the owner is not a violation of the lease. The owner may not terminate the tenancy for nonpayment of the PHA housing assistance payment. The HAP Contract also specifies, Part B, section 7(a)3, "PHA Payment to Owner", the PHA shall not be obligated to pay any late payment penalty if HUD determines that late payment by the PHA is due to factors beyond the PHA's control. During the government shut-down scare, it was discussed how these clauses might play out. The gist: landlords would have to provide housing without HAP cash flow for the duration of the shut-down (read: interest-free loan). The question then becomes what happens at a property that relies materially on subsidy payments.

Protect Your Home

tel. 508-791-1141 fax 508-753-5630

June 2016

Would banks loan against the government obligation? If not, and if the company declares bankruptcy or suffers other harm due to cash flow shortage, does the company have standing to sue the government for that loss? A prolonged shut-down would be a horrendous legal mess, not just for the government and for landlords, but also for the hundreds of thousands in MA (millions nationwide) who rely on subsidies. There would be extreme political pressure to fix it. Most landlords therefore view the Section 8 payment as guaranteed. Puerto Rico has recently been in the news as it defaults. Check your MRVP contracts. If Massachusetts were to default, probably similar language would play into their housing assistance payments. Section 8 is federally funded, but the Commonwealth funds MRVP, HomeBASE, and RAFT. Massachusetts would probably receive bankruptcy protection and have the claims of its creditors (including

landlords) erased or marked down. We're talking unlikely probabilities, but we might infer that state payments are riskier than federal payments. Massachusetts bans discrimination on the basis of receiving public assistance. We haven’t heard of any case law that says a landlord who knows about these legal minutiae can refuse to sign the HAP contract or related terms. ML

Q: HOW THE HECK DO YOU GET RID OF BAMBOO? Bamboo and other invasive plants like Japanese Knotweed can be extremely difficult to get rid of. Usually it takes five or more applications of Roundup or other weed killer to get rid of it. One landlord recommended a 28% solution of Isopropylamine salt of Imazapyr (brand name, Total Vegetation Control, not legal in California). The best advice is to hire an exterminator or other licensed lawn care specialist to do these applications for you. Timing matters, as after flowering the

plants may absorb more poison than at other times. If you don’t trust chemicals, diligent mowing, pruning and plucking of new shoots will get rid of it eventually, in three to four years. The same is true of other invasive species, like the vine oriental bittersweet. The plant will store energy in its roots and use that to send up new shoots and leaves. If you can eliminate shoots and leaves faster than it can store sunlight as energy, you will eventually deplete it. Persistence always wins. ML

Do you Screen <4 Tenants Per Year? We wrote an article a while back comparing screening options. Small landlords who want to see a real FICO score without an on-site inspection should click the SmartScreen ad we're now running on the site. Each SmartScreen report you order by clicking from supports our work.

NO SITE INSPECTION REQUIRED Many landlords were grandfathered in and never had site inspections. New landlords usually need to be inspected. New small landlords operating out of their kitchen cannot pass an on-site inspection. This is why we looked for (and found) SmartScreen.


credit data. If you have four vacancies or more each year, you can save money with another service by paying their monthly or annual fees in exchange for a lower per-report cost. SmartScreen has no monthly or annual fee. Some competitors are cheaper but they don't give real credit data, they only give you a surrogate score. Be careful. If you don't get an actual FICO score, you are paying for someone else to evaluate the tenant's credit. You get what you pay for. Note: members can log in to get a coupon code for discounts. MassLandlords receives an affiliate commission for each screening report processed.

If you have fewer than four vacancies a year, SmartScreen is the cheapest way to get real

MassLandlords Newsletter • 9

June 2016

Real Estate Bar Association Appoints

Landlord Attorney Emil Ward to Dispute Resolution Panel THE REAL ESTATE BAR ASSOCIATION HAS A SUBSIDIARY CALLED DISPUTE RESOLUTION (REBA/DR), WHICH IS A COURT ALTERNATIVE FOR A BROAD CLASS OF CASES. Landlords and property owners should know that REBA/DR can mediate or arbitrate condo disputes, equity partitions, class action security deposit cases, and commercial leases. Now there’s one more reason to learn about REBA/DR: prolandlord Attorney Emil Ward has just been appointed to the REBA/DR panel. Ward also serves on the board of the Small Property Owners Association, a MassLandlords partner group, and has a long history of advocating for property owner rights. “Emil is both eloquent and incisive. If you get a chance to work with him, you take it,” said Doug Quattrochi, Executive Director of MassLandlords. Here is a sampling of Attorney Ward’s cases that have settled.

CONDO DISPUTES Roof leaks, deferred maintenance, lead paint liability for common areas, the failure of the association to take care of common areas, leaks between floors, one group of owners oppressing another and not allowing proper meetings or allocation of funds for upkeep which sometimes involves tens of thousands of dollars which end up in court or at arbitration or mediation, as

Attorney Ward speaking on WBZ Radio in 2013 10 • MassLandlords Newsletter

per the condo docs. Attorney Ward has been involved in at least three of these condo disputes. Each time the money on the table was no less than $70,000$100,000. Many condo docs require mediation or arbitration of disputes.

$350,000 and up. This type of dispute can involve large multi-unit properties or 2- and 3-family properties. Attorney Ward recently settled one at mediation where the urban property was worth well over a million dollars and his client received $355,000 after mediation to settle her claims. This court action is also applied to larger properties as well.



These are brought in court where coowners of property disagree as to how best to exploit the property. Sometimes one co-owner resides in the property, stops paying expenses, and lets the others swing, or sue. The total value of the property is generally at stake, can range from

Attorney Ward has recently defeated three of these, involving from several hundred units or in two cases, thousands of units, where it was alleged that the owner mishandled the security deposits. The loss to the owners could have run into the tens of thousands to hundreds of thousands of dollars in attorneys' fees and class damages. They settled.

June 2016

COMMERCIAL LEASE DISPUTES These can occur between even 1- or 2-person entities yet involve properties or lease rights ranging from $60,000 per year times a disputed five-year right to extend in a million dollar building. Attorney Ward has had a case where the 59-year lease was claimed to be bogus and the property would be worth over a million and half dollars if the lease was declared void. These are not the run of the mill landlord-tenant case in Housing Court. If you find yourself with something like these cases, now you know where to get help. REBA/DR is pricey, and may cost $250/hr per side. But is exactly what you might need if tens or hundreds of thousands of dollars are stake. ML

Read the official press release: Emil Ward Joins REBA Dispute Resolution’s Panel of Mediators Brighton attorney G. Emil Ward has joined REBA Dispute Resolution. In almost four decades of practice, Emil has developed a broad-based transactional and litigation practice with a concentration in commercial and residential property matters. In

addition to his general practice, Emil has mediated disputes in a variety of real estate fields, particularly commercial and residential landlord/ tenant conflicts. He brings his broad experience as a practicing attorney to REBA/DR, having represented clients in property partition cases, premises liability, partnership dissolutions, easement cases, housing discrimination, condominium disputes, mortgage foreclosure and title issues. “Emil will bring the same pragmatic common-sense approach that has made him a successful practitioner to the mediation arena,” said REBA/ DR’s Peter Wittenborg. “He’s a welcome addition to our roster.” Emil has taught law at Suffolk University Law School and Boston University Paralegal School. He has been a guest commentator for several television programs and has given television interviews regarding rent control and landlords’ and tenants’ rights. He was also a guest contributor for over a year on “Real Estate Radio” on WBZ radio. Emil has testified before the Massachusetts legislature on various real estate bills. He has been a consultant to the Massachusetts Association

of Realtors. He has taught their landlord and tenant courses and Emil has written pamphlets for the state of Massachusetts and for the Massachusetts Association of Realtors summarizing the rights of landlords and tenants. Emil Ward has spoken at seminars for REBA and MCLE where he discussed the impact of the new medical marijuana laws on residential landlords. Emil has authored two books on landlord-tenant law, having published a treatise/cum practice manual on the subject in 1996 entitled: Massachusetts LandlordTenant Practice: Law and Forms. The second book, available on Amazon is entitled: Massachusetts Landlord-Tenant Practice: Law and Forms; Security Deposits and Last Month’s Rent focuses on how to avoid violating the law and how to avoid treble damages and attorney’s fees if you have breached the security deposit laws. To schedule a mediation with Emil Ward, contact Andrea Morales at For more about REBA Dispute Resolution, go to


Follow MassLandlords on LinkedIn Don’t be shy to be a landlord! Half of all MassLandlords members have fewer than six rental units, which means half of us are working day jobs. Members are often surprised to learn that someone they know from a meeting is a programmer, or an attorney, or a toy maker. It’s impossible to say how connections can be helpful in the future. If you don’t connect, you’ll never know. Those of us who are full-time in real estate can also take advantage of professional networking, commenting on posts for increased visibility, and looking for connections who can provide advice or hours. The possibilities are enormous! Follow us on LinkedIn to show share your involvement! Every follow helps us, too, as we build credibility with policy officials and key suppliers like Home Depot. ML MassLandlords Newsletter • 11

Tired of being June 2016 a Landlord?



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12 • MassLandlords Newsletter

June 2016

How to Fix

a Garbage Disposal A JAMMED GARBAGE DISPOSAL IS EASY ENOUGH TO REPLACE, COMPARED TO OTHER PLUMBING. Very old and noisy disposals probably should be replaced with newer, more rugged models. But frugal landlords need to know how to fix a garbage disposal because most can be unjammed. Knowing how to fix instead of replace can save an hour of your time and roughly a hundred dollars. This example uses the Badger 5, available at box stores. You will need: • Correctly sized hex wrench • Flashlight • Pointy tongs Time estimate: • 15 minutes Cost estimate: • $0

STEP TWO Underneath the disposal is a manual crank insert. You will need to reverse the disposal to clear the jam. This insert is usually at the center of the bottom. Disposals come with a hex key to uncrank jams. If you didn’t save the one that came with the disposal, you can use any hex wrench. Find a hex wrench that will fit.

broken glass, cutlery, construction hardware, coins, and plastic kids’ toys. You can try fingers or a tool. Don’t immediately reach in with your bare fingers. Unless your fingers are made of broken glass, cutlery, or construction hardware etc., they could get disposed of if the switch were accidentally hit. Take the time to walk all the way down into the basement to the breaker box, cut the breakers for the disposal and/or kitchen, and go all the way back upstairs. Toggle the wall switch to verify that the power is off. Never insert fingers into a situation where a single switch is all that stands between you and a future career as Captain Hook. Instead of your hands, an even better idea is to use grill tongs, salad tongs, or another long metal implement. Pointy instead of flat ends are best. Keep a pair of these handy in your toolbox. (If you grab a pair from the tenant’s drawer, remember to wash them afterwards. Be a good landlord!) Using a long implement that keeps your hands totally clear of the disposal saves you the trip to the breaker box. Keep your tongs and your flashlight handy.

STEP THREE Wiggle the wrench back and forth until the wrench loosens and the disposal turns free. Do not turn on the disposal yet.



Underneath the garbage disposal is a red button. This is a breaker that trips if the disposal is jammed. You will need to press the red button in. First make sure the wall switch that is normally used to activate the disposal is turned off. Ask your tenant to clear underneath their disposal to give you access. Push in the red button.

Holding the flashlight in one hand and the tongs in the other, approach the disposal at angles. Look down where the disposal wall meets the disposal floor. This is where jams happen. Sometimes it will be obvious. Sometimes it will not. Inspect every inch until there are no more places left to look.

STEP FOUR Now you need to remove whatever jammed. Common culprits are

MassLandlords Newsletter • 13

June 2016

STEP SIX Pull out and set aside whatever you find, whether or not you think it caused the jam. If you find a piece of lemon

wedge, it could be obstructing your view of what caused the jam, even if the lemon wedge itself was not the problem. If you pull out food scraps, they could be preventing the water from draining. Pull out everything. If you deposit debris into the sink to keep the countertop clean, make a little wall with a rag to keep it all from sliding back in to the disposal. You will know you’ve helped when you pull out something tough but mangled. Take a picture of it to add to your collection of “things my tenants did”.

When you think you have pulled out everything, turn on the water, cross your fingers, and flip the switch to the disposal. (If you turned off the breakers, go turn those back on first.) There might be a moment of panic where the disposal groans and shakes, if it has to clear one small remaining piece of debris. But with any luck, you will have fixed your garbage disposal! So that’s how to fix a garbage disposal. Did we miss anything? Submit your tip to our ongoing maintenance hacks survey. ML

Solar in MA: What, Why, and When By Andrew Miller

SO MANY QUESTIONS, SO LET’S BREAK IT DOWN TO MAKE SENSE OF ALL THE HUBBUB. What: Solar Photovoltaic (PV) systems (aka solar farms; rooftop solar systems) have become increasingly prevalent as seen in various parts of the Commonwealth including along highways and the MassPike. The significant increase of these solar PV systems cannot help but provoke curiosity. What key factor has fueled the growth of the industry? Answer: A solar PV system in MA benefits from two sources of revenues: 1. Proceeds from the sale of power, as would be expected; and 2. The sale of Solar Renewable Energy Certificates (SRECs) earned by virtue of the power produced (1 Megawatt-hour (MWhr) = 1 SREC)* by qualified solar PV systems. The current (second) iteration of the SREC program SREC II has been lucrative, so much so that typically the revenue from SRECs is more than the revenue from the sale of power generated during a production year. The sale of power is either contracted via a power purchase agreement (PPA) or a net metering credit sales agreement

14 • MassLandlords Newsletter

(NMCSAs). Power produced by a solar PV system goes into the power grid and the entity that owns the solar PV system earns net metering credits. The net metering credits can then offset the electric bill. (Analogy: Think of getting, say, a $50 gift card. You can use to help pay for the dinner bill.) Why: The cost of solar Photovoltaic (PV) systems has come down significantly in the last several years. As a result, the economics work in the current incentive environment (i.e., SREC II). Investment in a solar system is usually recouped in 7-10 years and 10 years is the typical term of solar loans in MA. The life of solar systems is typically 30 years and often more. Note: A study commissioned by the Commonwealth determined that solar system ownership is significantly more beneficial than simply buying the power while another/third party owns (TPO) the system. In such a case, the property owner enjoys some of the benefits, but most of the benefits go to the system owner. Caution: Buying power from a solar PV system on your roof but owned by another party (TPO), has a hidden risk which can be significant. You may have trouble getting a mortgage since the TPO will have a lease on at least a portion of your roof.

Avidia Bank can provide high LTV solar financing and at competitive rates and terms. Property owners can get a no obligation estimate of a solar system, cost, and feasibility. When: The SREC II caps had recently been reached, but the state has essentially extended it until the end of 2016. Since many in the industry expect the next incarnation of the SREC program (likely to be dubbed SREC III) expect it to be less lucrative than SREC II, there is a narrow window of opportunity to take advantage of the SREC II extension. If this timing doesn’t work, SREC III is still anticipated to sustain the attractiveness of the solar industry to investors albeit to a lesser degree. Next Steps: If there is interest, a seasoned and well-respected solar developer representative or team can host an information meeting to educate and address questions and concerns. Possible on the spot feasibility check. Once an estimate is determined and an initial financial model is developed, can explore financing with Avidia Bank. Andrew Miller is Commercial Relationship Officer at Avidia Bank. He can be reached at (774) 760-1252 and

June 2016

The Security Deposit Sky Is Not Falling:

Meikle v. Nurse Did Not Change Evictions Forever By G. Emil Ward, Esq.

LATELY I HAVE BEEN HEARING A LOT OF COMMENT SWIRLING AROUND MEIKLE V. NURSE, 474 MASS. 207 (2016). Some think the case means that $3.46 in unpaid interest on a security deposit claim can by itself act as a complete defense to an eviction. Others feel that this decision portends the doom of all evictions if the tenant files a security deposit counterclaim. I've heard it said that this spells the end of the no-fault evictions and that the fate of landlords now lies in the hands of the legislature. My response is simple: Not the case.

In my opinion, this case does not represent a sea change in landlordtenant law. The case came out the way it should have under the present incarnation of ch. 239, sec. 8A, the statute that was not properly applied by the Boston Housing Court to produce the Meikle decision at the trial court level. While one can argue that 8A should be changed, 8A is not producing any worse results for landlords after

this decision than it did before it was handed down. Here is why. For many years, security deposit claims have been an integral part of almost every tenant's defenses that this author has ever faced (whether real or imagined) under 8A. Ch. 239, sec. 8A, allows the tenant to raise any “counterclaim or defense” arising out of the tenancy, such as a security deposit claim. In a trial, any such claim can be added to the tenant's damages award along with other damages awards, if any, and then matched against the unpaid rent found due the landlord. This so called

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“pay-over provision” can be used to determine if the tenant or landlord wins possession after doing the math. For those of you unfamiliar with 8A's pay-over provision, here's how it works. Under 8A, if after trial the landlord wins judgment for the same amount of tenant’s damages or less than the tenant’s damage award, for say, a leaky radiator ignored by the landlord for months in winter, the tenant gets to stay and the landlord must pay the balance the court found she owes the tenant. On the other hand, if the tenant wins an amount of money damages less than the landlord wins in unpaid rent, then the tenant has seven days in which to pay the difference between the rent found due and the damages won by the tenant into court. If he pays that sum into court, the tenant retains possession. If not, the tenant loses possession. Here the landlord won $3900 (three months' rent). The tenant won return of the security deposit and unpaid interest: $1304.61 ($1300 security deposit $4.61 unpaid interest = $1304.61). The difference is, of course, about $2595 the tenant would have had to pay ultimately to the landlord through the court clerk's office. I say “would have had to pay,” because it is at this point that the decision went off the rails. For some unarticulated reason in the decision, the judge failed to end the decision by stating, as has been the law for decades, that the tenant then had the opportunity to pay the

John Adams Court House, home of the SJC, CC-SA Swampyank, Wikimedia.

difference in 7 days' time and retain possession, or not as the case may be. That is the part that was appealed, namely, the judge's failure to state in the decision that now that the damages had been found for both sides and setoff against one another, the tenant was to be offered the opportunity to "pay over" the difference between unpaid rent of $3900 and her judgment for damages of $1304.61, or $2595, and thus retain possession. Of course, if the tenant had been given the pay-over opportunity in the decision and failed to make the payment in seven days, judgment for

possession would have issued for the landlord, the long suffering Mr. Meikle. Please note the pay-over provision may only be used by tenants who are evicted for nonpayment or in nofault evictions. On its face, the statute bars its use in defense of possession by tenants who are evicted for fault, i.e., breach of the tenancy terms. That's it. The Supreme Judicial Court simply rectified that error. It did not make new law. In my opinion, no big deal. Just another overly burdensome, expensive and time-consuming security deposit case. But, not a sea change. ML

PROBLEM TENANT? Call the Landlords’ Lawyer!

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The Law Office of Garrett D. Lee 125 Cambridge Park Drive, Ste. 301, Cambridge, MA 02140 Handling all disputes with your tenants, contractors, and neighbors. Evictions, lease disputes, security deposit, personal injury, and more. MassLandlords Newsletter • 17

June 2016

Evicted: Poverty tenants & welloff landlords By Skip Schloming, PhD Sociology


Evicted by Matthew Desmond rates 4.4/5 on Goodreads and 4.5 stars on Amazon

Written by Harvard sociology professor Matthew Desmond, “Evicted: Poverty and Profit in the American city” reads like a novel. It tells the stories of landlords and tenants in very-low-income neighborhoods of Milwaukee, Wisconsin. The book’s narrative reflects the author’s many months living in a house trailer and a rooming house, following in person what happens in the lives of very poor Milwaukee tenants who spend up to 80% or more of their income on rent, and of landlords who make enough money off their low-income tenants to vacation regularly in the Caribbean. The book is exhaustively researched, and there is no reason to doubt the accuracy of its descriptions. Events like these probably happen in every major inner city in America. 18 • MassLandlords Newsletter

Most of the households are headed by African-American or Hispanic single mothers. Life for these individuals often bounces back and forth between miserable and joyous, but much more often, just plain miserable. Tenancies are short, often lasting from a day or two to several months and occasionally longer. Evictions are frequent, for nonpayment of rent primarily, but also for more than one or two phone calls to the police in a month, for foreclosure of the owner or condemnation by city officials. Landlords decided many evictions on the spur of the moment. Here is a taste of their povertystricken lives: • Male tenants doing their own repairs when owners neglect repairs. Landlord hiring male tenants at cheap rates to make repairs in other people’s apartments. • Often getting caught in a downward spiral involving two or more of the

following in succession: eviction usually for nonpayment, poor job performance and missed days at work, getting fired, depression, a long, weary search for a new apartment, constant rejection, finally taking an apartment, eviction again for nonpayment, and eventually homelessness. • Packing possessions in plastic bags, moving them to storage, leaving behind bigger items like a table or dresser. • Self-help evictions: Without notice, the landlord’s crew appears and moves all a tenant’s possessions to the curb or takes them to storage. It avoids a court record that could hamper the tenant in getting new housing. • Going for periods without amenities like phone, television, hot water, even food for short periods. • Tenants being accepted with little or no screening, followed by eviction within months. • Making up to 80 calls to landlords trying to find a new apartment. A landlord finally says “yes.” She took the apartment sight unseen. • Dirty dishes piling up in the sink and all over the kitchen. Sometimes living with a plugged sink or toilet. No hot water; the gas was shut off for nonpayment; asking to shower at a neighbor’s. • Moving in, children and all, with a person she has just met, promising it’s temporary, but the deadline comes and goes. Eventually, she gets booted out. • Working diligently to clean up an apartment, only to be evicted in a few days. • Occasional luxuries: flatscreen TV, computer or new sneakers for the kids, etc. • A brief refuge at church services. • Few husbands or fathers around, seldom any financial help, or any

This article contributed by the Small Property Owners Association.

June 2016

help at all, from them. Kids staying out until midnight. • Domestic violence leading to a call to the police, reported to the landlord, who evicts or threatens to evict for more such calls. Women are stuck with abusers. • Woman spends her whole SSI check on a lavish lobster dinner, with her rent due soon. • The landlord being helpful at times, but all too often, she is there to get her rent or start an eviction. • Landlord collecting about 30 to 50 times the income of her tenants, traveling regularly to the Carribean.

we readers are free to generalize. The problems of these individuals are the same problems of many very-low-income people and some higher-income people as well. A major problem is the inability to delay gratification. These tenants cannot organize their lives around a goal. They live very much in the present, but with the pain and trauma of chronic, involuntary relocations. Repeated failures to avoid eviction or get a new apartment sap energy and bring depression, resulting in more failures. How to break the cycle of failure and the psychological states that go with it gets very little attention in the book.

The foregoing is just a taste. The book consists of many, many more events of a similar character, with the stories and conversations around each one.


TENANT LIMITATIONS DETERMINE THEIR LIFE CHANCES The bulk of the book stays very much at the level of events and face-to-face interactions, with little or no commentary or analysis, except in the last chapter. But

Poor parenting skills are another general problem that ensures that the next generation grows up into another life of poverty: failure to keep up school attendance, to prod homework, to curb vulgar language, to train good manners, to feed nutritionally, to encourage good sleep patterns, to encourage occupational goals, etc. Closely related is the lack of good schools in poor neighborhoods.

But good schools will not work if the more powerful impact of parents does not support the schools. This major problem receives no analysis in the book. Marriage and men, or the lack of them, is another problem without analysis. Single mothers get larger government subsidies if a husband’s income is not counted, so government policy encourages single motherhood. But the impact of men in the home may be critical. An observation once made of elephants – yes, elephants – found very rowdy behavior in a herd of young male elephants. When older male elephants were introduced, the rowdy behavior quickly ended. Single motherhood (among humans) is a set-up for criminal behavior by children, especially males.

DOES THE PHYSICAL ENVIRONMENT DETERMINE THE CULTURAL ENVIRONMENT? We can group these unanalyzed factors – short-sightedness, poor parenting, single motherhood, etc. – as the culture of poverty. Can we change this culture? MassLandlords Newsletter • 19

June 2016

In 1890, Jacob Riis published a landmark book entitled “How the Other Half Lives: Studies among the Tenements of New York,” which at the time – 1890 – captured the attention of civic leaders in New York City and inspired a reform movement. Riis claimed a correlation between the high crime rate, drunkenness, and reckless behavior of the poor and their “lack of a proper home.” Physical determines cultural. Tenement housing in 1890 was rows of five- and six-story-tall, narrow townhouses packed together, with long, slender floorplans and no light or ventilation except in the front and back rooms. Outhouses stood in what little was left of the backyards. Small industries, like sewing clothes or making cigars, were carried on in the unit. Reform introduced vertical light shafts in the middle of the long, slender apartments, bringing light and ventilation to the middle rooms. Running water and a toilet were required on every level, serving two to four apartments. Did these improvements help? Not really. “With their attendant problems of crowding, disrepair, lack of sanitation, and crime, tenements have continued to exist,” according to the online Dictionary of American History. Physical may not determine cultural.

ONE OF THE WORLD’S LARGEST SLUMS IN MUMBAI, INDIA On the other hand, a slum called Dharavi that sits in the middle of the Indian city of Mumbai has survived and even thrived since its founding in 1882. It is a multireligious, multi-ethnic, diverse settlement of about 1 million people, composed of those who have been pushed out of the city of Mumbai and others migrating from the rural countryside to the city. The houses are one-story shacks of any available material, built smack next to each other. Many include one-room businesses: leather, textiles, and pottery products, often exported around the world, and a burgeoning new industry: recyclables. Open sewer trenches and human waste thrown into rivers brings disease, but the residents have protested against urban renewal by “experts.” They complained that the redeveloped plans would give them only 236 square feet per household, less than they presently have. 20 • MassLandlords Newsletter

The slum of Mumbai has an entrepreneurial spirit and a $1 billion economy. Together with New York City tenement housing, these examples suggest that the physical environment in and of itself does not determine culture or morality. Efforts to improve sanitation may help on health, but not change much else.

WILL VOUCHERS IMPROVE AMERICA’S LOW-INCOME NEIGHBORHOODS? In the last chapter of “Evicted,” Desmond recommends universal vouchers for all people under a certain income level. It imposes rent caps, which is rent control targeted to a specific subgroup in a city. It would still have the effects of rent control: poorly maintained properties that decline to the rent level established, and only the best tenants being accepted. The poorest still might not find housing. And, of course, it would cost a mighty bunch of money the federal government does not have. Some of the author’s language throws around the usual epithets against landlords: “exploitation,” “overcharging,” “just cash out,” “basic right to housing,” “freedom to profit from rents versus freedom to live in a safe and affordable home.” But at other times, he recognizes that landlords are the most economic providers of housing, landlording is a business that needs to be respected, and to aim for modest housing, not perfection, to make a voucher program feasible financially.

MAJOR STUDY LOOKS AT FAMILIES WHO MOVE WITH VOUCHERS INTO LESS POVERTY Would universal rental vouchers below a certain income level work? One important clue is a large study by the U.S. Housing and Urban Development Department (HUD) called “Moving to Opportunity,” done in the mid-1990s. The research followed 4,600 lowincome households over 10 to 15 years as they used vouchers to move from high-poverty public housing projects to private housing in somewhat better neighborhoods. Most of the households were headed by African-American or Hispanic single mothers, identical to the kind of households in the book “Evicted.” The results of the study, examined by many researchers, are mixed, as described in the study’s final analysis. Families who

moved into better neighborhoods felt safer, and women had less obesity. Both women and female children had less psychological stress and depression. That means that men and boys experienced just as much stress and depression as they did in public housing, and their health did not improve – a zero impact. Families who moved into better neighborhoods did not get better jobs or achieve higher incomes, and boys and girls were only very slightly less likely to engage in risky or criminal behavior, such as drug use or drug dealing. African-American slang, which affects job opportunities, showed hardly any improvement. Very little or zero impact again.

WHAT CONCLUSION MIGHT WE DRAW REGARDING “EVICTED” The idea that rubbing up against people with better cultural habits will improve bad habits is tenuous at best. Moreover, neighbors often object to these newcomers from the projects. They are struggling to get ahead, and the newcomers just make it harder. Is funding a huge housing subsidy program really worth these very modest gains and otherwise zero impact? Or ought we to consider other possible kinds of intervention? Or none at all? Arguably, what poverty-level tenants need is marriage, with men in the home to supply more income, to help with parenting, and to moderate the behavior of adolescent and juvenile males in particular. We can change government regulation that reduces subsidies when males are in the household. But how else do we encourage marriage? No easy solution comes to mind.

SPOA’S RECOMMENDATIONS: REDUCE THE PAIN, BUT NO CURE IS LIKELY During the Boston debate on just-cause eviction, SPOA opposed it. It is a form of rent control. Instead, we suggested three approaches to the problem of evictions: (1) give help negotiating with the evicting landlord, if only for more time to make a more sensible move, (2) provide relocation assistance, to find suitable neighborhoods in which to search for new housing, and (3) offer psychological counseling, to help the tenant through the ordeal and establish new relationships. These approaches would not necessarily stop evictions, but help alleviate the strain and stress. ML

June 2016

Discrimination Do’s and Don’ts LANDLORDS, REALTORS, AND OFFICE STAFF WHO SCREEN TENANTS NEED TO BE AWARE OF FEDERAL AND STATE LAW AROUND DISCRIMINATION. IT IS UNLAWFUL TO REFUSE HOUSING TO SOMEONE ON THE BASIS OF THEIR MEMBERSHIP IN A SO-CALLED “PROTECTED CLASS”. HERE ARE THE DISCRIMINATION DO’S AND DON’TS THAT WE ALL NEED TO BE MINDFUL OF. FEDERAL LAW The federal protected classes are: • Race • Color • Religion • Sex • National origin • Family status • Disability “Race” means the physical or cultural characteristics associated with someone’s background and genetic makeup. It could be skin color, hair texture, or facial features, for instance. “Color” specifically means people with lighter or darker skin. Back in our

very racist past, it used to matter to some people whether you were mixed white & black, or all-black, or all-white. We even had separate words for the different blends. Color discrimination is now illegal, no matter what color your own skin. Read more at the EEOC. “Religion” means if someone is a Christian, Muslim, Jew, Buddhist, Hindu, Sikh, Wiccan, Pastafarian or any other religion, or any sect or variation. Case law seems to have established firmly that cults are equally protected under the First Amendment. “Sex” means male or female. In a recent federal court case, Grimm v

Gloucester County School Board, the law prohibiting discrimination on the basis of sex was invoked after a transgender boy was denied access to the boy’s locker room. Remember: your rental applications can’t ask which private parts someone has. “National origin” means where someone is from or appears to be from. This was a big deal to World War II veterans, who couldn’t discriminate against Japanese or Germans. To later generations, it meant no discrimination against North Koreans or Vietnamese. It applies equally to the present day. Assume the applicant

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June 2016

is not responsible for the actions or interactions of their former nation. “Family status” means elders, children and marriage. If someone has more or fewer children than you think they should have, or is more or less married than you think they should be, or cares for more or fewer live-in elders than you would prefer, your assessment of their situation cannot be used to deny them housing. “Disability” is an importantly broad category. It includes physical handicaps, as well as psychological and emotional disabilities, and also, microbiological disabilities. Discrimination on the basis of HIV status, for instance, has been determined to be illegal. Good news: you can’t get “the AIDS” from a rental application.

denied housing because they are not married, no matter what your religion. “Age” means young, old, and middling. You need to know whether someone is over 18 and lawfully required to sign a rental agreement. You need to know whether someone is under six years old and requires a deleading certificate. There is nothing else you need to know. “Ancestry” is an extra layer on top of the federal law around national origin. The intent is to make it clear that the children of someone from a country


STATE LAW The Commonwealth of Massachusetts has added its own bullets to the long list of protected classes. • Sexual orientation • Gender identity • Marital status • Age • Ancestry • Genetic information • Veteran status • Membership in the armed forces • Receiving public assistance “Sexual orientation” means whether a person prefers to have relationships and/or sex with men, women, both, or neither (asexual). As tenant screeners, we must remember that what happens in private moments is none of our business. “Gender identity” means whether someone expresses themselves as male, female or a mix, regardless of how you think they should express themselves on the basis of their biological sex. Keep it businesslike always and it needn’t come up in conversation. “Marital status” is an extra layer on top of the federal law around “family status”. The intent is to make it clear that cohabiting singles, with or without children, and single parents cannot be 22 • MassLandlords Newsletter

rare to find a tenant who would risk taking a bullet for their landlord. “Membership in the armed forces” is the present-tense version of “veteran status.” If someone is currently in the military, about to be deployed for nine months to leave their apartment empty, you need to work through their not being at home at all. Being in the armed forces is not a disqualifier. “Receiving public assistance” is the Massachusetts bombshell. Public assistance is importantly broad: Section 8, MRVP, RAFT, HomeBASE, Food Stamps (SNAP), WIC, Social Security, Disability, or any other public help cannot be a disqualification on an application. This seems to be true even if their assistance requires certain actions or agreements from the landlord.

you hate cannot be denied because of their parents’ country. “Genetic information” applies mostly to health insurance companies. It’s unlikely this would apply to rentals, but if you do get someone’s cheek swab, don’t use it to decline their rental application. “Veteran status” is specifically addressing the political aspects associated with unpopular wars. You might think this means “Vietnam” but actually the law around veteran status was c. 2004. Don’t blame someone for doing their job. Say, “Thank you for your service.” It’s

Do not make rental decisions on the basis of any of these categories. Don’t do it even obliquely or in a misguided attempt to be nice or helpful. When in doubt, engage in dialog about how someone’s differences may impact your business, your other customers, and their ability to pay. Reasonable accommodations must generally be granted; unreasonable ones must not. Dialog can show the difference. Try to avoid conversation topics that would lead to a discussion of protected classes. If a tenant says, “Oh, this basement storage area would be perfect for our cult ritual,” ask whether they plan to store any hazardous or flammable materials, and then move on. Just because someone is in a protected class doesn’t mean you have to rent to them. You can deny an applicant for having too little income even if they fit into every single protected class. Just don’t deny them because they’re in one of the protected classes. Read more about enforcement and real examples online. ML

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